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Masters Degrees (Constitutional Law)

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    A critical analysis of political independence in the role and responsibilities of the Speaker of the National Assembly.
    (2021) Padayachee, Kamalan.; Freedman, David Warren.
    The former Speaker of the National Assembly, Ms Baleka Mbete, was the subject of numerous accusations of showing partisanship towards the ruling party culminating in a case before the High Court. This permitted the ruling party to control debate in Parliament while limiting the oversight potential of Members of Parliament belonging to different political parties. The Office of the Speaker could better serve the people of South Africa if the incumbent were to be politically independent by surrendering their party membership upon election. In the British Westminster model of Parliament, upon which the South African parliamentary system is based, the Office of the Speaker is characterised by indomitable autonomy and respect. An examination into the history and origin of the Office of the Speaker in Great Britain shows that the independence of the Office is crucial in preventing the abuse of state power. A partisan Speaker is dangerous to the separation of powers as it allows the needs of the ruling party to usurp the interests of the people. Adopting a model closer to that of the British Westminster system would allow for greater accountability of the executive by allowing opposition parties to perform their constitutional oversight obligations and it would restore public faith in the legislature.
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    A critical analysis of the constitutional concept of property in light of the judgment in Shopright Checkers (Pty) Ltd v MEC for Economic Development, Eastern Cape 2015 (6) SA 125 (CC).
    (2018) Noko, Khanya Kendra.; Freedman, David Warren.
    The meaning of “property” in a constitutional sense is a globally contested concept. As a result, various jurisdictions have adopted varying approaches to defining the meaning of this concept. Consequently, different conclusions have been reached with regard to the even more controversial issue of the inclusion of public law entitlements within the ambit of constitutional property. Like in other foreign jurisdictions, the South African courts had no difficulties when dealing with the inclusion of rights and interests already protected as “property” under private law within the constitutional definition of problem. Challenges only arose when the court had to extend the ambit of constitutional property beyond the rights and interests protected under private law. In much of the cases, unfortunately, the Courts extended the constitutional concept of property without fully explaining the reasons for such a decision, in a manner that would give certainty of outcomes in future cases. The Shoprite Checkers case, was the first case in which the Constitutional Court engaged fully with the meaning of constitutional property, and even went on to decide that constitutional protection of property extends to commercial licences which are public law entitlements. This dissertation will critically analyse the constitutional concept of property in light of the Shoprite Checkers case. It will question whether the Constitutional Court was correct to extend the constitutional meaning of property to include commercial licenses.
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    A critical analysis of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: to what extent have the remedies available to the Equality Court been utilised in achieving the objectives of the Act?
    (2019) Alli, Alaika.; Freedman, David Warren.
    In 1994, after decades of inequality and oppression, South Africa ushered in a new age of democracy with the help of its interim and final Constitutions. At the core of these Constitutions stand the values of human dignity, equality and freedom. In order to give effect to these values, Parliament has passed a wide range of statutes over the past 25 years. Perhaps the most significant of these is the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the ‘Equality Act’). As its short title clearly indicates, the purpose of this Act is, inter alia, to promote equality and to prevent unfair discrimination. Insofar as the second goal is concerned, however, the short title is misleading. This is because a careful examination of the Equality Act shows that its purpose is not simply to prevent unfair discrimination, but also to prevent, prohibit and eliminate hate speech and harassment. In order to achieve these various goals, the Equality Act makes provision for a new specialist court, namely the Equality Court. Apart from conferring the power on the Court to determine whether an act of unfair discrimination, hate speech or harassment has been committed, the Equality Act also confers a wide range of remedial powers on it. These remedial powers, which are set out in section 21, are varied in nature. While some look backwards and focus on remedying the individual harm suffered, others look forward and focus on preventing a recurrence of the harmful conduct. Despite being able to draw on such a wide range of remedies, an examination of the reported and unreported judgments of the Equality Court indicates that in the overwhelming majority of cases, the Court has relied on three remedies in particular, namely interdicts, damages and unconditional apologies. The aim of this thesis is to set out and critically discuss the manner in which the Equality Court has applied these three remedies.
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    Critical evaluation of the realization of the right to basic education in light of the 2012 textbook saga.
    (2014) Mbeki, Siphelo Dlamini; Govender, Karthigasen.
    Abstract not available
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