Department of Public Law and Jurisprudence

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    2 + 2 = 5? Exploring the domestication of the CRC in South African jurisprudence (2002-2006)
    (Brill Academic Publishers, 2008) Sloth-Nielsen, Julia; Mezmur, Benyam Dawit
    South Africa commenced transition to a constitutional democracy with the adoption of an interim constitution in 1994, followed by national elections based, for the fi rst time, on universal adult suffrage. A justiciable Bill of Rights, containing some rights accorded to children, was at the core of our new society based on values of dignity, equality and respect for the freedom and security of the person, in sharp contrast to the violence and legalised discrimination that had characterised the apartheid regime. T e two years that followed the adoption of the Interim Constitution were a period of intense negotiations by a multi-party constitutional assembly to fi nalise the text of a fi nal constitution, in accordance with the principles set out in the Interim Constitution. As has previously been pointed out (Sloth-Nielsen, 1996, p.326), there was a high degree of consensus amongst political parties about the children’s rights to be included, to the extent that four of the six party submissions supported the extension of the children’s rights clause, and indeed a number of additional rights were fashioned and ultimately adopted.
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    A child's right to identity in the context of embryo donation: Lessons from Australia and New Zealand, part 2
    (North-West Unversity, 2024) Bouah, Nicole; Jacobs, Carmel
    In part 1 of this article the current level of protection of the right to identity both at the national and international levels were considered in the case of embryo donation. It was concluded that at a national level the national health act, its accompanying regulations and the children's act fail to protect this right. The constitutional provisions on children's rights are also unhelpful in providing the requisite level of protection. At an international level it was further found that neither the CRC nor the ACRWC explicitly uphold the child's right to identity in the case of embryo donation. In an attempt to address this defect, this article compares the legal protection provided for the right to identity of children born through embryo donation in Australia and New Zealand. A number of lessons can be drawn from this comparative analysis. At a national level the article submits that the birth certificate should indicate the child's true origins and in addition to a register which holds the particulars of the child's donor parents, a separate donor sibling register is also suggested. Legislative amendments are also suggested to parliament.
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    A legal analysis of the prevalence of domestic violence against women by their intimate partners in underprivileged areas in South Africa
    (University of the Western Cape, 2024) Maseko,Vuyelwa; Van Marle,Karin
    The aim of this research paper is to investigate the prevalence of domestic violence in underprivileged areas, where spatial location and patriarchy are at the center of the problem. Underprivilege for the purposes of the study refers to areas where poverty, unemployment and poor service delivery are rife. These factors often go hand in hand with enduring inequality between men and women. The public private divide has been criticized by feminist theorists over many years. One of the results of this divide is that domestic violence has been regarded as a private matter and a matter to be dealt with in the private sphere. The private sphere is often a space where women experience patriarchy and domination with little recourse to the law and this is worse for women who find themselves in areas of impoverishment and inequality. In terms of Section 2 of the Domestic Violence Amended Act 14 of 2021, domestic violence is defined as physical abuse; sexual abuse; emotional, verbal and or psychological abuse; economic abuse; intimidation; harassment; sexual harassment; related person abuse; stalking; spiritual abuse; damage to property; elder abuse; coercive behaviour; controlling behaviour; expose a child to domestic violence; entry into the complainant’s – permanent or temporary residence, workplace or place of study without his or her consent or any other controlling or abuse behaviour of intimidation , threatening, abusive degrading, offensive or humiliating nature towards a complainant.Statistics shows that over 50% of women will experience gender-based violence in their life time either at work place or at home.The aim of this paper is to consider the intersection between spatial location,specifically underprivileged areas where there is inequality and impoverishment, and patriarchy as contributing to women’s plight.
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    Abortion and the right to life: A case study of South Africa and Germany
    (University of the Western Cape, 2016) Zimmer, Martina; Mezmur, Benyam Dawit; Machaya, Musavengana
    The issue of abortion and the protection of the right to life have been discussed by many academics, yet remains an unresolved topic in many countries. The mere fact that abortion is the deliberate termination of a human pregnancy raises the question, whether or not such an act violates the right to life. Abortion has been legalised in South Africa and Germany. This study explores the area of abortion vis a viz the obligation of South Africa and German under the international and regional human rights instruments to protect the right to life. Notably, the right to life is protected under a plethora of international and regional human rights instruments. At international level, the right to life is protected under Article 3 of the Universal declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights. At regional level of the right to life is protected by Article 2 of the European Convention on Human Rights and Article 4 of the African Charter on Human and Peoples� Rights. To give a broad understanding of the meaning, nature and content of the right to life, this mini-thesis shall critically analyse the words used under the above Articles which protect the right to life. Then the paper will endeavour on its main objective which is to determine whether or not the legalisation of Abortion in South Africa and Germany violates the right to life?
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    Access to safe food in South Africa as a human rights imperative
    (University of the Western Cape, 2015) Adeniyi, Oluwafunmilola Foluke; Durojaye, Ebenezer
    The aim of this study is to examine laws and policies relating to food safety in South Africa, specifically with regard to labelling requirements in the food industry. It is hoped that this research will serve as a pointer for policy and legislative reforms in a bid to identify weak areas as well as encourage accountability and strengthen government’s response to the realisation of the right to safe food as a human right imperative.
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    Accession of least developed countries into the world trade organisation: the perspective of south Sudan
    (University of Western Cape, 2013) Oliver, Bakadi Sannah; Lenaghan, Patricia
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    Accession of least developed countries into the world trade organisation: the perspective of south Sudan
    (University of Western Cape, 2013) Oliver, Bakadi Sannah; Lenaghan, Patricia
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    The active and passive voting rights of convicted prisoners in South Africa and the United Kingdom
    (University of the Western Cape, 2014) Bekeer, Cindy-Lee Neavera; Le Roux, Wessel
    The purpose of this mini-thesis is to assess the present position regarding prisoner disenfranchisement in South Africa from a human rights perspective, and to recommend reforms of South African electoral legislation as far as prisoners‘ voting rights are concerned.
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    The active and passive voting rights of convicted prisoners in South Africa and the United Kingdom
    (University of the Western Cape, 2014) Bekeer, Cindy-Lee Neavera; Le Roux, Wessel
    The purpose of this mini-thesis is to assess the present position regarding prisoner disenfranchisement in South Africa from a human rights perspective, and to recommend reforms of South African electoral legislation as far as prisoners‘ voting rights are concerned.
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    Addressing climate change through international human rights law: From (extra) territoriality to common concern of humankind
    (Cambridge University Press, 2022) Bellinkx, Vincent; Casalin, Deborah; Scholtz, Werner
    International human rights law (IHRL) offers potential responses to the consequences of climate change. However, the focus of IHRL on territorial jurisdiction and the causation-based allocation of obligations does not match the global nature of climate change impacts and their indirect causation. The primary aim of this article is to respond to the jurisdictional challenge of IHRL in the context of climate change, including its indirect, slow-onset consequences such as climate change migration. It does so by suggesting a departure from(extra)territoriality and an embrace of global international cooperation obligations in IHRL.
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    Addressing the limits of autonomy: Origin, organization and purpose of horizontal intergovernmental forums in three federations
    (Centro Studi sul Federalismo, 2020) Fessha, Yonatan
    Horizontal intergovernmental forums that bring together the constituent units of a federation are increasingly common. This article examines the origin, organization and purpose of the premium horizontal intergovernmental forums in Kenya, Spain and Canada. The constitutional origin of institutions of horizontal intergovernmental relations is uncommon. The experience of the three political forums confirm the view that institutionalization of intergovernmental relations may not be a necessary condition for effective intergovernmental relations. Yet, in countries with no history of multilevel governance or a culture of cross-boundary interaction, institutionalization might give horizontal intergovernmental relation the prompt it needs.
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    Adopting a harmonised regional approach to customs regulation for the tripartite free trade agreement
    (University of the Western Cape, 2013) Jana, Vimbai Lisa Michelle; Lenaghan, Patricia M.
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    Adopting a harmonised regional approach to customs regulation for the tripartite free trade agreement
    (University of the Western Cape, 2013) Jana, Vimbai Lisa Michelle; Lenaghan, Patricia M.
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    Adopting the Twin Peaks model as a consumer protection mechanism in the financial sector : the Ugandan perspective
    (University of the Western Cape, 2015) Kamukama, Martha; Wandrag, R.
    The main objective of the study is to analyse the possibility of adopting the Twin Peaks model as a mechanism for ensuring protection to the consumers of financial services in Uganda. Uganda's financial sector has suffered impediments to growth and this can largely be attributed to the regulatory framework but also due to the absence in streamlined financial consumer protection. The Parliament of Uganda has failed to pass into law legislation required to protect consumers generally let alone financial consumers. The gaping hole created by lack of legislation puts consumers of financial services at risk of loss. This research paper shall give insight into the possibility of the financial sector adopting a new regulatory framework with inbuilt mechanisms for consumer protection. This research paper will also be a legal resource for literature pertaining to the correlation between a financial regulatory system and financial consumer protection.
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    Adopting the Twin Peaks model as a consumer protection mechanism in the financial sector : the Ugandan perspective
    (University of the Western Cape, 2015) Kamukama, Martha; Wandrag, R.
    The main objective of the study is to analyse the possibility of adopting the Twin Peaks model as a mechanism for ensuring protection to the consumers of financial services in Uganda. Uganda's financial sector has suffered impediments to growth and this can largely be attributed to the regulatory framework but also due to the absence in streamlined financial consumer protection. The Parliament of Uganda has failed to pass into law legislation required to protect consumers generally let alone financial consumers. The gaping hole created by lack of legislation puts consumers of financial services at risk of loss. This research paper shall give insight into the possibility of the financial sector adopting a new regulatory framework with inbuilt mechanisms for consumer protection. This research paper will also be a legal resource for literature pertaining to the correlation between a financial regulatory system and financial consumer protection.
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    Advancing a gendered approach to climate adaptation in the metropolitan cities of Cape Town and Ethekwini
    (University of the Western Cape, 2024) Moosa, Shehnaz Cassim; Maziwisa, Michelle
    Background: Anthropogenic climate change has been on full display in recent years. Since June 2021, global news has regularly featured reports of heatwaves in the Pacific North-West of America, floods in Germany and China, and droughts in South Africa. July 2021 was significant in South Africa in this regard: alongside existing disaster legislation enacted to manage the Covid-19 pandemic, the National Disaster Management Centre declared drought as a disaster in the Western Cape, Northern Cape, and Eastern Cape, as dams in these three provinces were running dry. In April 2022, catastrophic flooding led to loss of life and homes and the destruction of public infrastructure in Kwa-Zulu Natal. The first half of 2023 was characterised by scorching temperatures across southern Europe and raging wildfires in Canada. For years, scientists and environmentalists have been warning that human activity is negatively affecting the planet, and recent catastrophic events are indicative of these forecasts coming to pass.
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    The African Charter on democracy, elections and governance: A normative framework for analysing electoral democracy in Africa
    (University of the Western Cape, 2007) Alemu, Tikikel; Steytler, Nico; Faculty of Law
    This paper gave an insight into the novelties as well as the deficiencies of the provisions related to democratic elections and their implementation framework. It examined the potential effectiveness or otherwise of a binding treaty which is not yet enforced on the basis of past experience. In effect, it shed light on the possible measures that could be taken to guarantee its realisation and to circumvent the shortcomings in ensuring its effective implementation.
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    The african commission on human and peoples' rights and the promotion and protection of prisoners, rights an analysis
    (University of the Western Cape, 2008) Igweta, R.N; Muntingh, L; Mujuzi, J
    There is an estimated one million prisoners in Africa and most of them are detained in overcrowded prisons and conditions that well below internationally accepted standards.'These prisons hold both sentenced prisoners and persons awaiting trial. What happens in prisons is usually unknown to the outside world leading to vulnerability of prisoners. For this reason, prisoners require specific recognition and protection. It is trite to say that how a society treats its prisoners, reveals a lot about its moral values, its commitment to the rule of law and democracy.'
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    Agricultural sector: the role of foreign direct investment (FDI) in the creation of an integrated agriculture sector in Nigeria
    (University of the Western Cape, 2007) Efunkoya, Adeola Adefunke; Hunt, John Edward; Mathis, Jim; Faculty of Law
    This research recommended ways in which Nigeria could unlock constraints to commercialization and investment in the Nigerian agricultural sector for sustained economic growth, enhanced food security, increased competitiveness of products in the domestic, regional and international markets, sustainable environmental management and poverty alleviation.
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