Masters Degrees (Constitutional & Human Rights Litigation)

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A critical analysis of the legislative and policy response to protect transgender children in South African schools.
(2023) Govender, Tremelle.; Holness, Willene Audri.
The transgender community’s visibility has seen a global increase in the last few years. South Africa’s Constitution is praised for its progressive nature with the theme of inclusivity and equality echoed through its clauses. As institutions embodying the values of the Constitution, South African schools become pivotal spaces for fostering inclusivity and safeguarding the rights of transgender students. The study delves into the existing legal and policy landscape, evaluating its efficacy in addressing the unique slate of challenges faced by transgender children in schools. The study’s findings reveal strengths and shortcomings in the current legal and policy framework, providing insight into gaps hindering adequate protection. The analysis of South Africa’s legislative framework emphasises a need for a nuanced and comprehensive approach to address the diverse needs of transgender children with consideration for aspects of identity, mental health and social integration. This critical analysis contributes to the broader conversation on inclusivity and equality and highlights the necessity of proactive action to nurture a supportive educational environment for all students.
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.
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.
African customary law : a constitutional challenge for gender equality.
(1999) Govender, Anneline Michelle.; Perumal, Devina Nadarajan.
No abstract available.
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 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.
An analysis of multilingualism as an approach to language-in-education policies of the Department of Basic Education in relation to the promotion of indigenous languages as languages of teaching and learning, in accordance with section 29(2) of the Constitution of the Republic of South Africa.
(2021) Duma, Londeka Portia.; Mpya, Maropeng Norman.
The Constitution of South Africa recognises eleven official languages, nine of which are considered indigenous African languages. This recognition seeks to provide for language protection, promote multilingualism and create unity in a diverse country. Furthermore, these rights are tailored to promote the founding values of the Constitution, which are amongst others, the protection of human dignity, equality, and non-racism. The Constitution also provides for language rights that promote multilingualism in education through section 29(2) which provides that everyone has the right to receive education in any official language of choice in a public education institution where that education is reasonably practicable. Further section 29(2) provides that the state has a positive duty to ensure that this right is effectively accessible and implemented through the consideration of various reasonable educational alternatives. This dissertation will therefore critically analyse the Language-in-Education policy (LiEP) measures of the Department of Basic Education, as a measure in the fulfilment of the state’s obligation to effectively provide access to section 29(2). The purpose of this analysis is to examine whether the current language policy promotes African languages as languages of instruction. In so doing, ensuring effective access to the right to choose a language of instruction as provided for by the Constitution for all learners.
Balancing the right to peaceful use and enjoyment of private property with the right of access to adequate housing and the government’s legitimate interest thereto.
(2020) Magagula, Sithelo.; Mpya, Maropeng Norman.
In the pre-constitutional dispensation, the courts could grant an eviction order without considering the risk of homelessness to the evictees. This was possible because there was no constitutional right of access to adequate housing, and there was no law obligating the government to provide alternative accommodation to vulnerable evictees. In this context, the owner’s right to peaceful use and enjoyment of private property to the exclusion of non-owners was absolute and it trumped the interests of the unlawful occupiers. Notably, this legal framework favoured historical landowners, while undermining the historical dispossession of land which in turn impacted on vulnerable evictees’ housing interests. In the new constitutional dispensation, there is a shift away from the pre-constitutional legal framework. The eviction landscape has been transformed by section 26 of the Constitution which gives everyone the right of access to adequate housing and not to be arbitrarily evicted. Section 26 further obliges the state to take all reasonable steps to realise the right of access to adequate housing. The subsequent promulgation of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) gives effect to section 26 of the Constitution. Accordingly, evictions are now qualified in terms of section 26 of the Constitution. In a situation where unlawful occupiers have no prospect of finding alternative accommodation of their own, a court may order local government to provide them with temporary alternative accommodation. Therefore, in the new constitutional dispensation the government has a constitutional duty to provide alternative accommodation to vulnerable evictees. Notably, the government has a central legitimate interest in evictions. To the extent that the government cannot provide alternative accommodation, a court may refuse to grant an eviction order or may suspend it until the government makes such provision. This new development aims to infuse the principles of justice and equity into South African eviction law by balancing and reconciling the landowners’ interests with those of the unlawful occupiers. However, this transformative development is hindered by the government’s failure to play its central role, in the sense that if the government fails to provide alternative accommodation or provides an inadequate form of alternative accommodation the eviction will be refused or delayed. As a result, the landowners’ property rights and the unlawful occupiers’ housing rights will be compromised. Ultimately, the courts’ balancing approach will be hampered. Therefore, this study indicates that the government has failed to play its central role in evictions. As such, balancing the landowners and the unlawful occupiers’ opposed interests in the context of eviction is a complex exercise. The study concludes that it is impossible to balance the relevant rights without the meaningful involvement of government.
The best interests of whose child? : an examination of African customary law in matters relating to children switched at birth.
(2018) Jali, Samukelisiwe Petunia.; Mpya, Maropeng Norman.; Singh, Annette.
Children switched at birth present not only emotional trauma but also a legal battle for all parties concerned. Thus the story of M and Z (an African boy and girl) switched at birth in OR Tambo Hospital on August 2, 2010 elucidates this challenge aptly. This challenge plays itself within the contested legal systems being the Common law system (Western Law) and African customary law, which bears different consequences for the same event of children being switched at birth. Therefore, the research interrogates the rules of African family law, particularly those related to children and their parenthood. Equally important is African laws approach to the legal status of the parents’ vis-à-vis the children switched at birth, as well as the compatibility of this approach with the Constitution and the Children’s Act. An analysis of similar cases of children switched at birth suggests that family mediation, a practice mandatory amongst African societies, must be used in such matters rather than lengthy court battles. Consequently, the benefits of family mediation and parenting co-ordination are discussed emphasizing the use of parenting agreements in resolving conflicts in matters relating to children switched at birth.
The certification of the constitution of South Africa.
(1997) Rickard, Carmel.; Govender, Karthigasen.
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 constitutional experience of Zimbabwe : some basic fundamental tenets of constitutionalism which the new constitution should embody.
(2013) Mhodi, Peacemore Talent.; Govender, Karthigasen.; Stone, Lee.
Zimbabwe adopted the Lancaster Constitution in 1980. This constitution has been amended a record nineteen times. The critic on some of the amendments is that they have undermined the fundamental tenets of constitutionalism. Therefore, in the light of the fact that the tide of constitutionalism is sweeping throughout Africa, the dissertation critically evaluates the extent to which the Lancaster Constitution subsumes the basic tenets of constitutionalism. This evaluation is precipitated by the fact that Zimbabwe is currently grappling with drafting a new Constitution. Through this evaluation the inescapable conclusion is that the Lancaster Constitution merely provides a veneer of constitutionalism. Drawing from the constitutional experience of Anglophone African countries which include Botswana, Ghana, Lesotho, Malawi, Namibia, South Africa and Zambia; the dissertation offers some reforms which the drafters of the new constitution could include in the envisaged constitution. It is argued that it is only after a constitution embodies the identified fundamental tenets of constitutionalism that it becomes worth the paper it is written on.
A critical analysis of eThekwini Municipality’s bylaws that criminalise children in street situations.
(2022) Sibisi, Sinenhlanhla.; Holness, Willene Audri.
For a little more than fifteen years, children in street situations have been a focus of concern for relief organisations, such as NGOs and governments. There are children on the streets in every country, which is an issue in both developed and developing countries. This is not unique to South Africa. Post-apartheid government was tasked to redevelop and correct the ills of the past including but not limited to matters of poverty, social development, law enforcement and inequality; through following and holding high the provisions in the constitution. Children in street situations are protected by section 28 of the Constitution of the Republic of South Africa, 1996, which extends to their best interests being paramount. This leaves the state with powers invested in them to care and protect them. However, there have been criticism rising about lack and/or inadequacy in eThekwini Municipality bylaws that criminalise these children. Their approach highlights negligence and a shortfall in policy and strategy formulation meant to protect, care and manage homelessness and children in street situations in their city. The perception created by the bylaws is that children in street situations are a “nuisance, vagrants, criminals” and so forth. This categorisation and stigmatisation is in conflict with children’s rights inter alia in the Constitution, the Children’s Act 38 of 2005, the African Charter on the Rights and Welfare of the Child, and the United Nations’ Convention on the Rights of the Child. This study unpacks the eThekwini Municipality’s bylaws in relation to children in street situation and finds that it fails to care and protect these children in line with its local government obligations. The study draws on principles established in case law, advisory opinions, soft law and treaty obligations, particularly that of the African and Inter-American regional legal systems. Recommendations are made to help align policies, bylaws and strategies to speak children’s rights and state obligations.
Deconstructing section 25(3) of the Constitution: have the courts adopted a progressive approach in interpreting section 25(3): a critical study of Uys NO and another v Msiza and others?
(2020) Luthuli, Rodell Mandla.; Freedman, David Warren.
Section 25(2) of the Constitution provides that property may expropriated only in terms of law of general application for a public purpose or in the public interest, subject to compensation. Section 25(3) provides further that the amount of compensation, and the manner and time of payment, must be just and equitable, reflecting an equitable balance between the public interest and the interest of those affected, having regards to all relevant circumstances, including, inter alia, the purpose of the expropriation (s 25(3)(e)). Academic commentators such as Du Plessis have argued that these provisions implicitly provide for compensation below market value or nil compensation (so-called “compensation without expropriation”) where the purpose of an expropriation is a constitutionally special one, such as land reform. In light of this fact, they argue further, it is unnecessary to amend section 25 to explicitly provide for compensation below market value or nil compensation (see E du Plessis “The public purpose requirement in the calculation of just and equitable compensation” in B Hoops and E Marias (eds) Rethinking expropriation law I: Public interest in expropriation (2014) at 376). While this argument was adopted by the Land Claims Court in Msiza v Director-General Department of Rural Development and Land Reform 2016 (5) SA 513 (LCC), it appears to have been rejected, at least implicitly, by the Supreme Court of Appeal in Uys NO v Msiza 2018 (3) SA 440 (SCA). The judgment of the Supreme Court of Appeal thus appears to support the decision taken by the National Assembly to amend section 25 of the Constitution to authorise expropriation of land for land reform purposes in those circumstances identified in an Act of Parliament. The purpose of this dissertation is to critically analyse the manner in which the Supreme Court of Appeal interpreted and applied section 25(3) of the Constitution in Uys NO v Msiza.
Dignity of an ex-convict in South Africa : a critical discussion.
(2018) Nondabula, Ndiphiwe.; Osman-Hyder, Munirah.
The constitutions of many countries do not provide a clear definition of the concept of dignity. This study scrutinises the meaning of dignity and the violation of ex-convicts’ right to dignity in South Africa. Government policies place ex-convicts at a disadvantage, which may result in discrimination. The study examines section 271(4) of the Criminal Procedure Act that pertains to criminal records. It highlights inconsistencies between public policies in South Africa and international treaties as well as some provisions of the country’s constitution and offers recommendations to protect ex-convicts’ dignity and their reintegration into society.
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.
Executed in execution : discussion and suggestions regarding the immovable property foreclosure process in South Africa.
(2017) Sham, Nikhil.; Swales, Lee Jay Edwin.
The right to housing is not only important because of its socio-economic role in society – also because of our racially and socio-economically divided past. Despite the vital function housing plays, manifested in the constitutional aegis of Section 26, our legislature has failed to enact specific legislation that enunciates a tailor-made procedure and clarifies the substantive rights that homeowners should enjoy against their homes being sold in execution. Consequently, this drastic procedure which deprives often the most vulnerable of society their shelter, has been left to be mainly regulated by court rules. These rules are outdated and I assert that it certainly does not reflect the full level of protection the Constitution intended to give home owners. Due to the apparent failure of the legislature, the responsibility has fallen to the judiciary to prevent injustices from occurring. The Constitutional Court (hereinafter ‘the CC’) has had to significantly develop our law as evidenced in Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140(CC) and Gundwana v Steko Development CC and Others 2011 (3) SA 608 (CC); however as the dates indicate – progress has been painstakingly incremental. Taking the 10 year period between from 2006 to 2015 statistics show that 112,325 properties in South Africa were sold in execution - over 11 000 a year. This is exponentially higher than both the United States of America and the United Kingdom over the same period of time. To exacerbate the situation, the majority of these properties have been sold below market value – with many being sold for 30% or more below their market value. Despite judicial progress being made in this field and the legislature putting forward a bill to amend the court rules progressively, reports persist of members of the public being short-changed by unscrupulous mortgagees. This study will focus on the current judicial procedure that needs to be followed for immovable property1 to be sold in execution of an outstanding and overdue debt. It will further critique the progress that has been made and suggest the progress that needs to be made. Particular attention will be paid to Section 26 of the Constitution and the way it has and should direct the realisation of the right of access to housing.
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.
A human rights analysis of posthumous reproduction in South Africa.
(2018) Shozi, Bonginkosi.; Thaldar, Donrich Willem.
Advances in the field of medicine are consistently posing difficult questions to the law and society. This is because of the propensity of these medical advances to alter the limits of what is and is not possible, and when this happens we are forced to decide on how these new medical technologies will be used. It has been said that no use of medical technology poses more challenging questions than posthumous reproduction. This is because in the past, the act of reproduction was limited to living persons. However, now persons can become parents long after they die. This study was prompted by a case that recently came before the High Court, in which a widow sought to use her dead husband’s sperm in order to have a child. The court granted her order, but did not give reasons – thus leaving the rationale behind the decision unknown. This case came before the court because, in the relevant laws, what happens to gametes and embryos after the death of the gamete provider is largely unaddressed. This study looks at the law relating to posthumous reproduction in 30 foreign jurisdictions. This investigation reveals that there is no consensus on regulating posthumous reproduction, and state positions range from highly permissive regulation based on voluntary guidelines, to highly restrictive positions enforced by statutes. In analysing how South African law regards posthumous reproduction, the study finds there are no legal barriers to posthumous reproduction in South Africa, and that human rights related to procreative liberty support posthumous reproduction. The study concludes there is a right to posthumous reproduction, based on the freedom of testation in relation to reproductive material – which our law conceives as property – and reproductive autonomy. However, there are significant gaps in the law in South Africa that ought to be addressed by legislative reform in order to accommodate the exercising of this right.
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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