Magister Legum - LLM (Public Law and Jurisprudence)

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Natural fathers of extramarital children should have an inherent right of access to their children!
(University of the Western Cape, 1991) Amien, Waheeda; Sloth-Nielsan, Julia
The story which I am about to relate is a true one. However, to protect the privacy of the parties concerned, their names have been changed. I have a friend called Bob. Bob is the biological father of a five-year-old girl called Ethel. Avril is Ethel's mother. Five and a half years ago, Bob and Avril entered into a short sexual relation commonly known as a one-night stand. Eight months later and out of this brief encounter was produced a tiny baby girl which Avril claimed was Bob's child and which he unquestionably accepted. Bob thus acknowledged paternity of this child and formalised it by entering his name as the father on the birth register. He then proceeded to pay maintenance support every month without fail into Avril's bank account and continues to do so today. Bob also paid half of all Avril's lying-in expenses.
Kurds Kurdistan and the claim of the right of self determination of peoples
(University of the Western Cape, 1997) Kalay, Mehmet Siddik; De Ville, Jacques
Background: Since the French Revolution, the concept of self-determination has been inter-twined with international political discourse. Conflicting interpretations of the concept of self-determination have given rise to much international conflict and bloody wars have been fought in pursuit of the exercise of self-determination. The concept of the self-determination of peoples have shaped many state borders in our modem day world and its application is expected to effect even further changes to state borders, political structures within states as well as political relations between different states in future. In what follows, the historical development of the concept of self-determination as well as its development in modem international law will be examined. It is submitted that a clear understanding of the concept of the right of self-determination of peoples firstly requires an analysis of each of the constituent elements, such as: What is a right? Who is the self? Who determines the criteria for the purpose of establishing who is the 'self? What is to be determined?
A legal analysis of provincial intervention in a municipality
(University of the Western Cape, 1999) De Visser, Jacobus Wilhelm; Steytler, N
With the introduction of the 1996 Constitutor local government was for the first time in South African history acknowledged as a fully-fledged 'sphere' of government and its role and responsibilities as an equal partner of national and provincial government gained momentum. Local government no longer was an instrument at the hands of national government, used to implement its apartheid policies and practices. Instead, it became one of the three "distinctive, interdependent and interrelated spheres of government and a new unexplored legal space for local government opened up. But on 18 March 1998, a crack in the newly created sphere of local government appeared. The Eastern Cape Provincial Executive intervened in the Butterworth Transitional Local Council and assumed full responsibility for the administration of Butterworth. The province used as a legal basis section 139 of the very same Constitution that provided Butterworth with this new status as being part of an 'independent and autonomous sphere of government'.
The limitation of fundamental rights
(University of the Western Cape, 1999) Barday, A. G.; De Ville, Jacques
South Africa's new Constitution has been hailed as one of the most democratic and sophisticated in history, surpassing even the Constitutions of many first world countries. Of paramount importance in the Constitution is the limitation clause. In this dissertation, an endeavour shall be made to shed light on the provision for the limitation of rights in section 36( 1) of the 1996 Constitution. 1 Allusion will be made to section 33 of the 1993 Constitution2 so that the rationale, relevance, content and context of section 3 6(1) can be more meaningfully appreciated.
The right of access to information: The Constitutionality of the promotion of access to information bill
(2000) Jacobs, Donald; Steytler, N.C
The Constitution of the Republic of South Africa ("the Constitution") as well as its precursor ("the interim Constitution") 2entrench the right of access to information. ln the Constitution the right of access to information is contained in section 32. Section 32(2) of the Constitution provides in express terms that national legislation should be enacted to give effect to the right of access to information and provides furthermore that the contemplated national legislation may provide for reasonable measures to alleviate the administrative and financial burden on the state. De Waal, Currie, and Erasmus 3 refer to the right of access to information contained in section 32 thus as "a right under construction".
Socio-economic rights in Africa: a critical evaluation of legal protection mechanisms and Implementation strategies
(University of the Western Cape, 2001) Olowu, Oladejo Justus.; Liebenberg, Sandra
There is an emerging broad consensus that civil and political rights on the one hand, and socio-economic rights on the other, are ingenerated and indivisible. Taken together, they embody the cardinal norms which inform modem human rights systems as expressed through the lntemational Bill of Rights as well as other innovative human rights instruments. ln spite of this agreement about the normative structure and relationship between the two categories of lights, it is common knowledge that within the province of intonational relations, the focus of African states and, to some considerable extent, transnational entities, has predominantly been on civil and political rights. So too have the monitoring activities of most African human rights non-govemmental organisations been confined to this same set of rights. Although a few African human rights groups are seeking to change this approach, the overall trend remains significantly unaltered. The fall-out of the above phenomenon is the devaluation of socio-economic rights in Africa. This study attempts to analyse the crisis of implementing socio-economic rights standards in Africa, flowing from the attitudinal patterns of states as well as non-state actors in downgrading the obligations of states in this regard. Applying a generalised but qualitative sampling strategy across Africa, this study examines the impact of intonational and regional socio-economic rights instruments at domestic levels. A central concern is demonstrated in this study for the role of the civil society in evolving pragmatic strategies, within the applicable legal framework, to hold African states accountable to the people for the performance of their obligations. The study also explores the possibility of galvanising intonational, regional and domestic human rights instruments towards the attainment of an enhanced regime of socio-economic rights in Africa, and the ultimate improvement of the qualig of the lives of the most vulnerable people all over Africa. Extrapolating from the dynamic interplay of legal protection mechanisms and implementation strategies, as we!! as the problematics involved therein, this study proffers viable trajectories for concerted activism at the levels of the civil society in Africa.
Making the rights of poor people practical in Malawi through a rights based approach to development
(University of the Western Cape, 2001) Mazengera, Shenard Flint; Rugege, Sam
This thesis tackles the issue of human rights and poverty in the context of Malawi. Our main concern is to find ways of how to make human rights practical for poor people in Malawi through a human rights-based approach to development. Our thesis has therefore examined the normative framework of human rights and development. It has also examined priorities of poor communities and how they can be met and sustained. Further, the issue of how these communities can build their capacities and participate in development to enable them realize their rights, is discussed. We argue that the idea of a society where all human rights are respected is farfetched when poverty erodes rights of poor people. Poor people are in a majority and are a marginalized group who have difficulties to claim or demand their rights. The right to development is therefore seen as a way to address the needs, rights and priorities of large sections of the population. This we propose should be through a human rights-based approach to development.
Dispute settlement mechanisms in regional trade agreements: the EU-SA perspective
(University of the Western Cape, 2001) Hangone, Shaun Preston; Philippe, XJ.
This paper shall attempt to define and explain the various forms of dispute settlement in regional trade agreements. Trade Agreements from various continents as well as the World Trade Organisation will be scrutinised. The paper shall analyse these various mechanisms and systems and conclude with a detailed analysis of the Trade Development and Co-operation Agreement (TDCA) I signed between the European Union (EU) and South Africa (SA). The agreement's dispute settlements procedure in Article 104 and the practical implications on the private individual.
Emerging, rights language and community knowledge discourse in Africa's biodiversity protection regime : a case study of OAU's Model Law
(University of the Western Cape, 2002) Mulugeta, Allehone; van Reneen, TP
Africa possesses huge amounts of genetic resources and traditional knowledge that sustain diverse small economies and local livelihood. The integrity of this natural wealth and cultural Pattern, however, is being seriously undermined by heightened encroachment. Absence of over-sight structures and IPRs' failure to afford adequate recognition and protection to genetic resources and traditional knowledge condoned such encroachment. IPIG often encourage intense commercialisation of life forms and the latter's protection through patent which not only disadvantage local communities but also create enormous strain on existing ecological balance. Examples abound that show how Western research institutions and pharmaceuticals collected, developed and commercialised African biodiversity without due recognition to local communities' contributions. This has become even more evident as increased investment on herbal health care, Iife science and related pharmaceutical developments significantly increased the value and market demand of genetic resources.
The Right to Strike - Is it an effective component in regulating the South African labour market?
(University of the Western Cape, 2003) Williams, Joseph; Bosch, Craig
This research paper presents an analysis of the right to strike in South Africa. It starts by providing a historical overview of labour relations in South Africa and the development of the right to strike. The discussion includes a look at the link between collective bargaining and the right to strike as promoted in the Constitution of 1996 and the Labour Relations Act of 1995. The relevance of International Law found in the International Labour Organisation's Recommendations and Conventions and relevant United Nations Conventions is also explored. As part of this analysis, is a critical look into how the courts have adjudicated the dismissals of strikers in granting the necessary relief, in terms of the old Labour Relations Act of 1956 and the new Labour Relations Act of 1995. Commentaries made on the right to strike and statistics of strikes in confirming that the right to strike is indeed a necessary component of labour market regulation are also provided
"The duties of states under international and constitutional law to secure rights of access to water and to protect water sources in situations of armed conflicts"
(University of the Western Cape, 2003) Klosa, Annette; van Reenen, T. P.
Water is the basis of our life and without it human beings cannot live for more than a few days. Nearly every function of our body depends on sufficient water. It is for this reason that the lack of access to clean water has a major effect on people's health. Contaminated water, whether consumed or used for cooking purposes, can be detrimental to a person's health. ln 2000, the World Health Organisation (WHO) estimated that 1.1 billion people did not have access to sufficient water supply (80 per cent of them are living in rural areas), needing at least 20 litres of safe water per person per day and that an estimated 2.4 billion people were without sanitation Furthermore, an estimated 2.3 billion people suffer from diseases linked to water each year. According to the United Nations World Water Development Report, seven billion people in 60 countries could face water scarcity by 2050.2 ln just 20 years, the report predicts that the average supply of water per person worldwide will have dropped by one bird, affecting almost every nation and especially those on the economic edge of poverty. Fresh water accounts for only 2,7% of the earth's water, of which less than half a percent is surface water, to be found in lakes and rivers.3
A right to protected rivers: An analysis of the fulfilment of the State's Constitutional obligation to take reasonable legislative and other measures that promote the conservation and secure the sustainable use of rivers in South Africa.
(University of the Western Cape, 2003) Abduroaf, Muhammad; Van Reenen, T P
This mini-thesis deals with the right to protected rivers whereby it analyses the fulfilment of the State's Constitutional obligation to take reasonable legislative and other measures that promote the conservation and secure the sustainable use of rivers in South Africa. In South Africa, water is one of the most limited resources. It is used in almost every part of its nation's existence and a lack of it would cause their destruction. Due to the indispensable roles water play in our lives, we have to conserve and protect the sources from where it is derived before they are all exhausted. Water scarcity is a matter of international concern. This is highlighted by water security having been a key issue at the world summit for sustainable development in 2002. Furthermore, our constitution of 1996 affords everyone the right to sufficient water. Therefore, rivers that provide us with the majority of our potable water need to be protected, conserved and used in a sustainable manner. Everyone has a right to an environment not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that, inter alia, promote its conservation and secure its sustainable use. ' Rivers form part of the environment and the state should take reasonable measures for its protection, conservation and sustainable use. These measures include co-operation, partnerships, policies, strategies, financial support and action plans. Furthermore, it includes taking part in international agreements. There is however no national legislation or policy which main areas of concern are river protection, its conservation and sustainable use. However, there are other measures in place that deal with the protection, conservation and sustainable use of the environment that find application to rivers. However, these measures have to be reasonable in order to meet the standard laid down in our constitution. The standard laid is not for the measures to be put on paper, but for the measures to achieve the constitutional objective. This is the protection, conservation and sustainable use of our rivers. In this work, I analysed measures taken and also demonstrated what these measures should entail in order for them to be reasonable. There are a number of measures that assist in the conservation, protection and sustainable use of rivers in South Africa that has been analysed in this research. To mention a few, I dealt with the national water act of 1998, the environment conservation act of 1989 and the national water act of 1998. All the measures taken by the state require the principle of co-operative governance to be applied in order to effectively assist in the protection, conservation and sustainable use of rivers in South Africa. This mini-thesis is concluded with an overview of the measures taken and recommendation for future activities.
Traditional leadership in South Africa: a critical evaluation of the constitutional recognition of customary law and traditional leadership
(University of the Western Cape, 2004) Hugh, Brian Ashwell; De Villiers, F A; Faculty of Law
The main objectives of this study were to identify the role that customary law and traditional leadership can play, without compromising their current positions or future recognition through legislation, in creating a better life for their constituents. The study analysed diverse issues such as legislative reform, the future role and functions of traditional leaders, training needs of traditional leaders, and the impact of a possible lack of commitment by national and provincial government on the training of traditional leaders to fulfill their functions within the ambit of the Constitution.
The impact of privatisation on socio-economic rights and services in Africa: the case of water privatisation in South Africa
(University of the Western Cape, 2004-12-01) Mwebe, Henry; De Vos, Pierre
This study generally centres on the debate about the impact of privatisation on socio-economic rights and services. The specific objective of the study is to establish whether the privatisation of water services in South Africa has led to denial of access, either through the lack of availability of a commercialised, cost-recovery service, or denial of access because of hight rates and resultant inability to pay. The study analysed how this has impacted on the states constitutional and international human rights obligation and how the resultant problems can be addressed. It examines whether or not privatisation, which is basically aimed at improving service delivery and bringing countries in line with globalisation principles, has actually achieved that objective.
The place of women in the political sphere: a comparative study of Cameroon and South Africa
(University of the Western Cape, 2004-12-01) Alexandra, Diwouta T. Christele; Van Der Poll, Letetia
This thesis compared the status of women's political participation in Cameroon and South Africa through an assessment conducted against the backdrop key of international, regional and national human rights standards. The aim of this thesis was not only, to be conscious of women's absence in politics, but to also take steps to redefine sound strategies to implement gender equality in terms of the political participation of women on the part of governments.
Application of prescribed minimum sentencing legislation on juvenile offenders in South Africa
(University of the Western Cape, 2005) Momoti, Bafobekhaya Victor Lizalise; Sloth-Nielsen, Julia; NULL; Faculty of Law
The detention of juvenile offenders is not encouraged by both the Constitution and a number of international instruments. This right is entrenched in the South African Constitution (section 28(1)(g) ) which provides that every child has the right not to be detained except as a measure of last resort in which case, in addition to the rights a child enjoys under section s12 and 35, the child may be detained only for the shortest appropriate period of time. This Constitutional provision, in clear terms, views the incarceration of juvenile offenders in a serious light as it provides that the detention of juvenile offenders should be a measure of last resort. One of the important international instruments, the United Nations Convention on the Rights of the Child, (Article 37(b) provides that children may be arrested, detained or imprisoned "only as a measure of last resort and for the shortest possible period of time". This thesis examines the impact of the Constitution and some international instruments on the Criminal Law Amendment Act, 105 of 1997 with regard to juvenile offenders. It also sets out the current legal position in South Africa with regard to sentencing of juvenile offenders.
An international arbitration act for South Africa
(University of the Western Cape, 2005) Le Goff, Laurent; Wandrag, Riekie; NULL; Faculty of Law
When South Africa emerged from the era of isolation in 1994, it was faced with the fact that many of its laws relevant in the field of international trade and investment were outdated and inadequate. An obvious example is in the field of international arbitration. The problem is a serious one. Even thought South Africa is a developing country (one of the richest countries in Africa) and provides everything an investor wants: mainly, a reliable political and juridical system and some great opportunities of business, the same investor is also interested in how a dispute arisen between parties is settled. In this matter; one can be surprised not to see any references to international arbitration in the South African regulations.South African passed the Arbitration Act 42 of 1965 that was based mostly on the English Arbitration Act of 1950. Unfortunately, this law was designed for domestic arbitration and has no provision at all dealing with international arbitrations. This Act is perceived by those involved in international arbitration as being totally inadequate for this purpose.Given the fact that countries like Nigeria, Kenya or Zimbabwe have regulations on international arbitration prove the interests of States to give the best conditions for investors (e.g. predictability of where and how a dispute will be settled if one occurs).Focus will be on private arbitration (two private entities such as persons or corporations) and investor state arbitration and will therefore not be on the Dispute Settlement Body of the WTO which settles disputes between states. Besides, the domestic arbitration regime will be put aside to concentrate on International Arbitration.
"A comparison of the Cotonou Agreement and the AGOA: trade creating or trade diverting?"
(University of the Western Cape, 2005) Klostermann, Eva Amelie; Lenaghan, Patricia; Faculty of Law
This thesis has attempted to provide an analysis of two legal instruments; the Cotonou Agreement and the AGOA. Specific attention was directed to these instruments impact on trade between the European Union and the United States, respectively, and beneficiary African countries.
Eradicating delay in the administration of justice in African courts : a comparative analysis of South African and Nigerian courts
(University of the Western Cape, 2005) Obiokoye, Onyinye Iruoma; Hamman, Abraham John
A well functioning judiciary is a central element of civil society. It is the sole adjudicator over the political, social and economic spheres. Judiciaries in many African countries suffer from backlogs, delays and corruption. In countries such as Nigeria, South Africa, Ghana, Tanzania, and Uganda, speedy resolution of disputes is becoming increasingly elusive. Although many African countries have constitutional provisions against delay, and have identified congestion, excessive adjournments, local legal culture and corruption as some of the major causes of delay, nevertheless, the problem continues to be a feature in African Courts. In Nigeria, the average period to commence and complete litigation is six to ten years. In some instances, the litigation period is even longer. For example, in the case of Arioriv. Muraimo Elemo proceedings commenced in October 1960 and took 23 years to reach the Supreme Court of Nigeria. In South Africa, despite many programs and projects in place to solve the problem, delay in the administration of justice is still a problem.
Slithering towards uniformity: the international commercial arbitration and conciliation working group of UNCITRAL as a key player in the strengthening and liberalisation of international trade
(University of the Western Cape, 2005) Kirunda, Solomon Wilson; Wandrag, Riekie; Faculty of Law
The objective of this study was to examine and review the main features and works of the arbitration and conciliation working group of UNCITRAL while demonstrating their impact on international trade.

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