Masters Degrees (Constitutional & Human Rights Litigation)

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The Law of privacy in South Africa.
(1977) McQuoid-Mason, David Jan.; Lund, James Robert.
No abstract available.
International legal protections for combatants in the South African armed conflict.
(1988) Boister, Neil Brett.; Patel, Chiman.; Cowling, Michael G.
The African National Congress (ANC) is engaged in an armed conflict with the South African Government for control of South Africa. ANC combatants are being prosecuted under South African criminal law as rebels, a process which undermines the normative value of the criminal law because it is in conflict with popular support for the ANC. International law provides a humanitarian alternative to the criminal law. This study investigates the international legal protections available to combatants in the conflict. Lawful combatant status and prisoner of war status would only be available if the South African armed conflict was classified as international. It has been argued that the international status of the ANC, derived from the denial of self-determination to the South African people, internationalises its war against the South African Government. Attempts have been made to enforce this concept. Article 1(4) of Geneva Protocol 1 classifies armed conflicts involving a movement representing a people with a right of se If-determination against a .. racist re,gime" as international. But South Africa did not accede to Protocol 1 and the argument that it is custom fails because of insufficient international support. Nevertheless, the developing situation justifies an examination of the personal conditions required to gain protectedstatus. The conditions in Article 4 of Geneva Convention 3 (1949) are onerous, making it impracticable in South Africa. Protocol l's updated conditions are more suited to the armed conflict. The Conventions and Protocol 1 also make available procedural and substantive protections to combatants and deal with special issues particular to South Africa. The South African armed conflict can alternatively be classified as non-international. Common Article 3 of the 1949 Conventions applies because South Africa is party to them. Geneva Protocol 2 is not .applicable because South Africa is not a party to it. Unfortunately, Article 3 only applies general humanitarian principles and not protected status. To conclude, because of the inadequate means for enforcing the classification of the South African armed conflict as international and the inadequacy of the protections available under the law of non-international armed conflict, it is urged that the Government confer ex-gratia. lawful status on ANC combatants.
Food labelling legislation.
(1990) Lakhani, Chaya Pranlal.; McQuoid-Mason, David Jan.; McGill, A. E. J.
Food labelling serves to (a) inform consumers about the attributes of a food product so that they can make rational and well-informed choices; (b) assist manufacturers in marketing their product; and (c) warn consumers about the inherent risks of certain products, or ingredients in the product. The costs of labelling products fully and informatively are borne by consumers, but the benefits of labelling outweigh the costs. To understand the role of labelling in an regulatory system it is vital to consider the arrangement of the provisions protecting consumers generally before considering food laws and the labelling regulations. Furthermore, due to food being an international product, it is necessary to consider foreign countries and the manner they go about in protecting consumers. The United Nations, under the auspices of the Food and Agriculture Organization (FAO) and the \Vorld Health Organization (WHO), established a Joint FAO/WHO Food Standards Programme, called "Codex Alimentarius". The aim of the programme is to establish standards that can be used internationally to narrow the gap between developed countries and developing countries. To establish a standard various organs of the Codex Alimentarius are consulted. In addition, the standards have to comply with a prescribed format and follow a specified procedure. For the standard to be observed the member country has to incorporate the standard into its domestic laws. One of the advantages of the Codex Alimentarius is that the procedure to establish a standard is flexible. Australia, United Kingdom and the United States of America are member of the Codex Alimentarius. Australia, a federation of states, protects consumers by legislating either state and/or Commonwealth laws. Often there is a combination of statutes. Examples of subjects that are governed by both Commonwealth and states include false or misleading trade practices, and weights and measures. Commonwealth laws only deal with the freedom of information. Food laws are governed exclusively by state legislation. A significant area for future reform is uniformity of the state food laws. There are also other areas for future reform (eg date marking). England and Wales protect consumers by enacting statutes that relate to private and public rights. The important Acts that protect public rights are the Trade Descriptions Act, Weights and Measures Act, Consumer Protection Act, Fair Trading Act and Food Act. One of the provisions of the Criminal Courts Act is to protect personal rights when a consumer suffers personal injury, loss or damage as a result of the offender committing an criminal offence. Food labelling is governed by regulations, that are progressive. A fundamental criticism of the legislation and regulations is the lack of appropriate enforcement of the laws. The enforcement of most of the above Acts is delegated to the local weights and measures authorities. A further complication is the United Kingdom's membership of the European Economic Community. The United States of America enacts federal and state legislation. In protecting consumers in respect of food, it enacts federal legislation. The important Acts include the Fair Packaging and Labelling Act, the Meat Inspection Act, the Poultry and Poultry Products Inspection Act and the Federal Food, Drug and Cosmetic Act. The United States government also encourages openness, with regards to its public agencies, by creating the Freedom of Information Act. The class action is an innovative remedy established in terms of the Civil Procedure Act. The enforcement of food laws is delegated to the Food and Drug Administration (FDA). The protection afforded by the United States government is complex and sophisticated. Its laws serve as model for many countries. The common law of South Africa has limited value in safeguarding consumers. Consumer protection arise mostly by way of legislation and regulations. Consumers are protected generally by the Measuring Units and National Measuring Standards Act, Trade Metrology Act, Trade Practices Act and Harmful Business Practices Act, Standards Act, Dairy Industries Act and the Marketing Act. Consumers are protected against harmful and injurious foodstuffs by the Foodstuffs, Cosmetics and Disinfectants Act, and the regulations promulgated in terms of the Act. There are several problems with the laws, eg lack of enforcement, lack of consumer awareness and education, and so on. An analysis of the foreign countries discussed in Part II result in the indication of twel ve themes. Part III examine the twelve themes and present solutions. Some of the solutions are based on comparisons with foreign countries discussed in Part 11. The main issues that need to be addressed in the short-term are the lack of consumer education and problems of enforcement of consumer protection. Long-term issues include the feasibility of introducing a department of consumer affairs and the provision of statutory civil remedies for consumers.
The Small Claims Court : a court with a human face?
(1991) Gough, Ian Peter.
No abstract available.
A comparative analysis of the practice of family mediation with particular reference to African customary mediation.
(1997) Mkhize, Petros Bonginkosi.; Mowatt, James G.
Family mediation is a process that' was and is still practised by African indigenous societies. However, mediation in relation to family and divorce matters, is viewed either positively or negatively by most South African writers mainly from a Western perspective. The recommendations made in this work focus, amongst other things, on what ought to be done by policy makers and exponents of mediation in order to make the ,benefits of mediation realised by South Africans particularly disadvantaged communities. The role of illiterate and semi-literate South African citizens)'is pointed out as being critical more in managing family disputes from disfunctioning the family and leading to marriage break-down than merely mediating the parting of ways and ancillary issues of marriage. The practice of family mediation and procedures followed by Africans when introducing the son-in-law to the daughter-in-Iaw's family and the protracted marriage negotiations between Umkhongi (emissary) and the in-laws are all indicative of the entrenched or mandatory approach to family mediation. The benefits of the peaceful ending of marriage relationship through third party interveners are highlighted in President Mandela's desire to terminate his marriage as 'painless as possible' particularly for the sake of children. It is pointed out in this work that the Bushmen of the Kalahari Desert still adhere strictly to their tribal mediation procedures both in relation to family disputes and disputes in general. The tribe relies highly on korakoradue who is its senior citizen and respected elder, as resolver of community disputes. III The South African Justice Department brought hope when it worked toward introducing divorce mediation legislation. However, the vision was misdirected as the enacted family mediation legislation turned out to be constraining in its operation contrary to the recommendations by the Hoexter Commission. The majority of destitute South Africans who should be benefiting from this legislation end up not knowing about the existence of the Act and/or not making use of it because of the costs involved as only the Supreme Court can adjudicate upon matters covered by the Act. The lack of research which focuses on local mediation styles makes it difficult to justify, for example, either Mrs. Mandela's claim when she said ,Mr. Mandela had not answered to the 'African Cultural and Traditional Inkundla' or Mr. Mandela's defence that he respects customs but is not a 'tribalist' as he 'fought as an African Nationalist with no commitment to any tribal custom'.
The rule of law in a state of emergency.
(1997) Pillay, Camilla.; Devenish, George Edwin.
No abstract available.
The certification of the constitution of South Africa.
(1997) Rickard, Carmel.; Govender, Karthigasen.
No abstract available.
The impact of the constitution on the common law of defamation.
(1998) Rajoo, Shalini Kisten.
No abstract available.
Pre-admission legal education in South Africa : an assessment of the dominant patterns influencing the transmission of legal knowledge.
(1998) Ogúnrónbi, Sunday Oládókun.; Milton, John Robert Landrey.
The purpose of this study was to narrate the major influences shaping the construction and transmission of legal knowledge in South Africa. The paper contends that these influences revolved around the role of the state, the profession, and the university law schools. The conceptual framework informing the study was the place of values in policy measures intimately affecting legal education. The values connection is contextual and not formal or abstract. It is the politics of legal education. The study revisited the site of the current debates in legal education, that of the divide between practical and academic education/training, and the staging of academic and professional education. Particular attention was also paid to the considerations allowed in determining the content of law studies. The role of legal education and training in promoting adversarialism and litigiousness was addressed. Of the three major stakeholders in legal education, the state wields more influence than others. The fresh political dispensation in the country has further supported the state's intervention in legal education. Most of the policies introduced by the state revolve around the enhancement of opportunities for the previously disadvantaged to gain access to legal education. The spate of . government measures in this regard is still growing. The effects of government policy measures like the Outcomes-based Education, the under preparedness of a segment of the student population for law study, admission of more students in the face of tension between a 'mass' and ' elite' system, and the growing diversity in the law schools, are some of the social factors identified in this study. The study concluded with an expression of optimism in the system even in face of frictions and tensions, As envisaged for this exercise, a number of the issues identified were not fully explored. .It is expected that further research may be conducted to determine the far reaching consequences of the factors thus identified.
African customary law : a constitutional challenge for gender equality.
(1999) Govender, Anneline Michelle.; Perumal, Devina Nadarajan.
No abstract available.
The implementation of human rights principles in post apartheid South Africa : the question of an international standard.
(1999) Okharedia, Akhabue Anthony.; Rycroft, Alan John.
No abstract available.
The abused women in South Africa : statutory implications and the use of mediation to resolve domestic violence disputes.
(2000) Moodaliyar, Kasturi.; Louw, Ronald.
No abstract available.
Management of legal aid clinics in South Africa
(2001) Subban, Mogesperie.; Moodley, Sathiasiven.; Singh, D.
No abstract available.
The African Union and its radical stance towards human rights and democracy.
(2003) Msimang, Tobias Thobani.; Mubangizi, John Cantius.
Any research that attempts to tackle the issue of human rights in Africa is likely to raise emotions because of the history of perpetual human rights violations in the region. Nevertheless, the establishment of the African Union (AU) brings hope that Africa has turned the corner. The provisions of the preamble, objectives and principles of the Constitutive Act of the African Union are crystal clear. Article 3 (h) of the Act makes a critical provision in terms of human and people's rights. (See appendix 1). Paradoxically, this article recognizes the African Charter on Human and Peoples' Rights, which led to innumerable inconsistencies in enforcing human rights under the Organization of African Unity (OAU) (See appendix 2). By implication, the recognition of the 'Charter' justifies its existence in the new African human rights set up. The 'Charter' historically introduced the concept of peoples' in the definition and application of human rights in the African region. This further complicated the concept of human rights, and made it difficult to enforce them. As a result, the dichotomy between human rights and peoples' rights practice in the African region became difficult to reconcile. Hence, the concepts became vulnerable to abuse by governments, who justified their violation of individual human rights for the benefit of peoples' rights. The above assertions hold true for the ailing African region that has evolved from a defunct OAU regime into the radical African Union human rights corpus. The dissolution of the OAU on 9 July 2002 during the last 38th ordinary session of the OAU Assembly in Durban, and the subsequent launching of the AU on the same occasion pioneered a new era for human and peoples' rights approach in the African region. The shift from the toothless-human-rights-system to a clear-visionary-human-rights-regime is an articulation of the desire and commitment to transform the African region. This study therefore reviews the pattern or system that the AU has employed in transforming human and peoples' rights in the African continent. Chapter two attempts to assess the prospects of the African Union to bring reforms in areas of human and peoples' rights, the rule of law, good governance and so on. A comparative analysis of the African Charter on Human and Peoples' Rights and the Constitutive Act of the African Union is drawn from the key clauses, objectives and intentions of the two human rights regimes. Chapter three presents an analytical comparison between the African Union and the European Union. The chapter documents the historical developments of the European Union to illustrate how far the African Union has to go to ensure long lasting peace and stability in the region. The discussion in this chapter acknowledges the differences in these two regions, but uses the European Union to draw some lessons. In so doing the study reviews the historical developments of the union of states that has advanced itself in critical areas of democracy, human rights, good governance and so on. Hence, the chapter recognizes the remarkable accomplishments of the African Union in the last five years. The parity of judges in the AU Commission, the commitment of 53 African nations to adopt and ratify the Constitutive Act of the African Union in record time, the establishment of the New Partnership for Africa's Development, the introduction of the African Peer Review Mechanism and the peace-keeping missions in Liberia, Democratic Republic of Congo and so on are among the achievements of the Union in the last few years of its existence. In an attempt to justify the radical shift of the African Union from the OAU past, chapter four discusses the establishment of the African Court on Human and Peoples' Rights. Even though the idea of establishing a Court of justice emanated from the OAU decades after its existence, the chapter acknowledges the radical stance of the African Union to put in place a 'Court' from the beginning. The chapter further looks at the structure of the 'Court' in terms of its composition and election of judges, court procedure, court judgments and their execution and its relationship with the African Commission. In making recommendations and drawing conclusions, chapter five makes a strong point that the pre-requisite for stability and prosperity in the African region is through transforming and consolidating national institutions into democracy. The chapter also acknowledges the continued existence of the African Charter on Human and Peoples' Rights, but raises a concern that its existence is subject to abuse by non-democratic governments. The chapter concludes the study by drawing an inference that indeed the African Union represents a radical shift from the OAU in terms of promoting and protecting human and peoples' rights. However, the study acknowledges that the African Union will take some time to fully bear the benefits, but its efforts so far are worth the accolades.
The African Union and human rights : drawing from the European experience of human rights supervision, what impact might the African Union, and the consequent creation of an African court, have on Africa with regard to human rights, African unity, and the issue of state sovereignty?
(2003) Bodasing, Anshal.
The formation of the African Union (AU) holds great promise for Africa with regard to development. It also brings a new dimension to human rights in Africa, with the creation of the African Court. However, the OAUs legacy of human rights supervision and the development of democracy lacks in many areas. Europe, however, has manifested itself into an entity capable of trans-border cooperation and has been able to sustain this over a long period of time. What the OAU has accomplished in this regard is not compatible with the current status of international law theory and practise. There is a need then for change in these areas, and what better opportunity is there, than for a new dispensation in regional governance to apply to relevant policies and programmes to effect this change? This dissertation will endeavour to present a study of how the European legacy in Africa worked to the latter's detriment over the past five or six decades since decolonisation. Yet, there are lessons that may be learnt from Europe's unification that can be successfully implemented in Africa. Further, by analysing the weaknesses of Africa's current system of human rights supervision, and rectifying or reforming them, much may be accomplished in the advancement of the system. Therefore reformation of the system will be discussed at length. However, the success of the system will be evidenced by the commitment of its component members. Thus far the status quo in Africa reflects unwillingness on the part of the state to surrender its sovereignty. This was one of the reasons for the impotence of the OAU. Will the AU be able to overcome this condition? The onus remains on the state to shore up their commitments to the treaties which they have ratified, and to deliver on the promises they have made, because there are solutions, and whether or not they are implemented ultimately depends on the AU.
The eradication of domestic expediency by the African court on human and peoples' rights : lessons from Europe.
(2003) Singh, Sandhiya.
The proposed African Court on Human and Peoples' Rights is an important development in the history of Africa. For the first time, there will be a regional judicial mechanism for the adjudication of human rights issues. The difficulty may lie in the manner in which the Court applies its discretion in relation to the doctrine of margin of appreciation and derogations. As a subsidiary body that has a power of review, the Court must tread warily when applying these principles. Lessons may be learnt from the well established European Court of Human Rights which has applied and developed the doctrine of margin of appreciation and has had occasion to examine the manner and extent of derogations from the European Convention. Applying this knowledge in an African context is important, but there must be discretion in that application that takes the particular circumstances of Africa into account.
Privatisation and its impact on human rights : a case study of the Zambian privatisation programme, 1991-2001.
(2006) Kongwa, Susan Lungowe.; Lumina, Cephas.
The study also provides an overview of the impact of privatisation on human rights. To accomplish this objective, case studies of Zambia were undertaken within the concept of the social and economic impacts, seeking to answer six basic research questions posed: What were the objectives of the Zambian privatization programme? Was the privatization process executed according to the provisions of the Zambian Privatization Act of 1992 and 1996? How is the outcome of the privatization process perceived by Zambians, success or failure, what are some of the social and economic consequences of privatisation programme? What are the human rights implications of the privatization programme undertaken in Zambia? Mainly qualitative data collecting methods, involving semi-structured interviews, document analyses and direct observations of activities of the privatised companies were employed, to answer these questions. The study examines Zambia's background to privatisation, posits implications of privatisation on the realization of human rights, looks at the case study of privatisation of the ZCCM and the outcomes of privatisation. The study has been influenced by a number of conflicting divestiture evaluation outcomes: for some the Zambian privatization process represents a model programme, the 'most successful in Africa', which serves as an example for other developing African countries to emulate whilst for others, it is a "deeply flawed experience", resulting in negative social and economic consequences which permitted the withdrawal of the provision of social services, massive human rights violations and job losses. Based on evidence from these outcomes, the principal findings from the study suggest that Zambia's privatisation programme has had both negative and positive results. In reviewing the outcomes of the privatisation process, the intent is neither to justify nor reject privatisation, but rather, on the basis of past experience, to highlight key elements of outright failures and success and provide recommendations for future use.
Access to antiretrovirals : are there any solutions?
(2008) Broster, Emma Justine.
In South Africa 1 000 people die of AIDS everyday and 100 000 more people require ARVs every year. There is therefore an urgent need to provide access to ARVs andother essential medicines. The South African Constitution requires the government totake reasonable measures to ensure access to health care. The government has cited financial constraints as the major ohstacle to fulfilling this constitutional imperative. In an effort to stretch their budgetary resource other medium-income countries have used measures such as compulsory licences, voluntary licences and parallel importation. These measures, provided for in the TRIPS Agreement and the Doha Declaration, are available under South African legislation but have not been properly implemented due to a lack of political will. The proper use of compulsory licences by the South African government is vital because all twelve of the ARVs on the World Health Organisation's Essential Medicines List are protected in South Africa by our patent laws. However, in order to issue compulsory licences more easily and quickly the South African Legislature will need to pass legislation which clarifies the ambiguities contained in TRIPS and the Doha Declaration. Other methods to lower the price of medicines include the segmentation of the South African market in order to facilitate differential pricing. The State must balance its use of such measures with programmes to incentivise research and development into neglected diseases and HIV/AIDS. Such programmes will also assist the State's capacity to conduct its own research and development into new medicines, whilst bolstering its domestic pharmaceutical manufacturing capacity. The ultimate solution to South Africa's access to medicine problem is to create a pharmaceutical manufacturing industry capable of producing the most complex medicines, so as to lessen its dependence on drug manufacturers reducing their prices. The way to create a sophisticated pharmaceutical manufacturing capacity is to use the flexibilities in TRIPS and to uphold South Africa's high patent standards. The Constitutional Court's involvement is essential in order to force the State to implement its own policies so as to provide access to affordable medicines.
A legal discussion of the development of family law mediation in South African law, with comparisons drawn mainly with the Australian family law system.
(2011) Schultz, Helga.; Carnelley, Marita.
No abstract provided.
The ICC's jurisdictional limitations and the impunity for war crimes in the DRC : a plea for the establishment of a special criminal tribunal.
(2012) Ntamulenga, Christian Kabati.; Du Plessis, Maximillian.
The cruelty and scope of the widespread criminality of humans in the world, which was a feature of the past century, was fuelled by scientific progress, egoism and humanity's power of destruction. The criminal consequences of the many imperialistic, hegemonic and barbarous wars in that century were immeasurable in terms of violations of human rights. Notwithstanding the emergence of international criminal justice through the experience of the International Criminal Military Tribunal of Nuremberg and Tokyo and later the ad hoc International Criminal Tribunal for former Yugoslavia and Rwanda, globally, impunity for egregious crimes continues. The establishment of the International Criminal Court (ICC) at the end of the 20th century was saluted as a major step forward in the evolution of international criminal justice. While previous tribunals were ad hoc, the ICC is permanent and has large territorial jurisdiction. This raises hope among the many Congolese victims of the first African World War, who view the ICC as a paradigm change that will put a stop to impunity for crimes against humanity and the crimes of genocide and war. In the Democratic Republic of the Congo (DRC), the past decades have been marked by instability and horrible armed conflicts (1996-97 and 1998-2003) which left several million people dead, and which were marked by gross war crimes. The negative consequences of those atrocities persist until today. While the ICC initiated the prosecution of some war criminals in 2004, most crimes committed before 2002 remain unpunished, because the ICC's jurisdiction is limited to after that time. It is therefore imperative to examine other mechanisms to deal with impunity for various grave crimes, including war crimes, perpetrated between 1996 and 2002. Thus the aim of this research is to contribute to the fight against impunity for crimes in the DRC by examining how other modes of jurisdiction such as the principle of universality can be applied, and to assess the need for the establishment of a specific tribunal for the DRC. Considering the inability and incapacity of the Congolese judicial apparatus, this study concludes by recommending the establishment of a Special Criminal Tribunal which can put an end to impunity for serious crimes committed in the DRC.

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