Faculty of Law

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https://hdl.handle.net/10566/25

The Faculty of Law's principal research focus areas include human rights, local government law, criminal justice and prisons, and labour law.

Electronic theses and dissertations are available in the Electronic Theses and Dissertations Repository.

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Now showing 1 - 20 of 1696

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.
The 2010 Kenyan constitution and the hierarchical place of international law in the Kenyan domestic legal system: a comparative perspective
(Pretoria University Law Press (PULP), 2013) Orago, Nicholas Wasonga
The prominent use of international human rights law in a state’s domestic legal system depends on the hierarchical place occupied by international law in general, and international human rights law in particular, among the sources of law in that particular legal system. Two systems of receipt of international law in the domestic legal systems have been used by different states: monism, which looks to directly incorporate ratified international law treaties in a state’s domestic legal system; and dualism, which entails the transformation of international law into the domestic legal system through the domestication of ratified international law treaties by means of the enactment of parliamentary legislation. Kenya, as a Commonwealth country, has always primarily followed a dualist approach which requires that domesticating legislation be enacted by parliament for ratified international law treaties to have application in the domestic legal system. However, with the promulgation of the new Constitution in August 2010, international law has been given a more prominent role in the domestic legal system through the inclusion in the Constitution of a provision directly incorporating ratified treaty law into the Kenyan legal system as a legitimate source of law. This article is primarily focused on analysing the hierarchical place of international law, specifically international human rights treaty law, in the Kenyan domestic legal system in the context of the new constitutional dispensation. It recommends that in order for international human rights law to have a prominent place in the governance of the country, article 2(6) of the Constitution should be interpreted progressively so as to give international human rights law norms an infra-constitutional but a supra-legal status in the domestic legal system. In this way, international human rights law will act as a bulwark against recession to totalitarian rule, as well as safeguard the democratic and fundamental rights protection gains that were won in the struggle for constitutional change.
A Critical analysis of section 129 of the companies act 71 of 2008
(University of the Western Cape, 2017) Barends, Richard Heinz; Wandrag, Riekie
A company forms an important part of a community in which it conducts business. It, therefore, has a direct impact on the economic and thus the social well-being of that community through its employees, suppliers and distributors. Consequently, the failure of a company has a large effect on society than merely its employees and creditors. In some instances this may lead to companies being liquidated. Granting an order of liquidation, results in the demise of the corporate entity and the attendant loss of jobs. This is further protracted by an unsatisfactory pro rata share in the residue for unsecured creditors, and the abandonment of claims when such are not proved. Having a corporate rescue procedure in place can prevent or even limit the amount of job losses, or provide an alternative measure as opposed to liquidation of companies. Corporate rescue affords a company a second chance, after having once failed, to restructure its financial affairs and once again become a successful concern.
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?
Abusing the accused? Unpacking the use of entrapment in Uganda’s fight against corruption
(University of the Western Cape, 2018) Nanima, Robert Doya
In Uganda, an accused person enjoys a right to a fair trial. It is a requirement that the circumstances surrounding the collection and admission of evidence do not violate this right. This article argues that the use of entrapment in cases of corruption may lead to an abuse of the fair trial rights of an accused. The lack of a legislative framework regulating entrapment, the institutional entrenchment of entrapment in the criminal justice system and the inadequate guidance from judgments substantiate this argument. This article recommends amendments to the Criminal Procedure Code Act with a view to preventing abuse of the accused by agents of the criminal justice system.
Access to essential medicines in East Africa: A review of East Africa community and its member states approach to WTO-TRIPS public health flexibilities
(University of the Western Cape, 2018) Majok, Daniel Bol; Lenaghan, Patricia
Magister Legum - LLM (Mercantile and Labour Law)
Access to HIV treatment for refugees : case study of South Africa and Uganda
(University of the Western Cape, 2015) Njiba, Jessica Tshiosha; Durojaye, E
Access to Justice in Kenya in the Context of Sustainable Development Goals (SDG) 16.3 on the Rule of Law: Lessons for the upcoming 2020 Voluntary National Review Report
(CEDRED Publications, 2020-08) Nanima, Robert Doya; Durojaye, Ebenezer
Kenya was among the various countries that presented a Voluntary National Review Report in 2017. In the context of the Sustainable Development Goal 16.3, a close reading of the 2017 Report shows some strong and weak points. Kenya is preparing its second Voluntary National Review Report at the next High-Level Political Forum in 2020. This contribution argues that Kenya can take lessons from its 2017 Report to comprehensively engage issues that speak to Access to Justice under SDG 16.3. First, the contribution contextualizes Sustainable Development Goal 16.3 in Kenya’s context. Secondly, it evaluates and juxtaposes the requirements for the Voluntary National Review Report under the 2020 and the 2017 Guidelines. Thirdly, it evaluates the extent to which the 2017 Voluntary National Review Report ascribed to its guidelines and where the emphasis for the 2020 Report should be. The fifth step is a hint on the way forward; followed by a conclusion. The authors adopt a desktop approach that evaluates available literature, legislation, case law and similar sources. The findings show that until May 2020, the SDG 16.3 did not deal with access to civil justice. Literature has identified the need to engage both formal and informal courts to deal with various societal issues like entrenched inequalities, discrimination and the independence of the judiciary. This study finds that a point of departure from Kenya’s 2017 VNR Report requires that data should be desegregated according to the requirements of SDG 16.3, with a more nuanced approach that links the challenges to access to justice.
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.
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
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
Accountability and the right to food: A comparative study of India and South Africa
(Food Security SA Working Paper Series, 2018) Durojaye, Ebenezer; Chilemba, Enoch MacDonnell
It remains a great source of concern that, as richly endowed as the world is, each day millions of people go to sleep hungry and almost 870 million people, particularly in developing countries, are chronically undernourished. Also, every year, 6 million children die, directly or indirectly, from the consequences of undernourishment and malnutrition – that is, 1 child every 5 seconds. The international community at various forums in the last twenty years or so have committed to ending undernourishment in the world. The right to adequate food is guaranteed in a number of international and regional human rights instruments. Despite these developments, many countries have not lived up to their obligations to realise this right. South Africa and India provide an interesting comparison. On one hand, South Africa has a progressive constitution that explicitly guarantees the right to food, while the Indian Constitution does not recognise the right to food as justiciable right. Yet the Indian courts have developed rich jurisprudence to hold the government accountable for failing to realise the right to food of the people. Indeed the courts have played key roles in ensuring the judicialisation of the right to adequate food in India in the wake of the fact that the Constitution does not expressly set out the right. This report shows that South Africa can learn from the Indian experience by using litigation as a tool for holding the government accountable to its obligation under international and national laws. Besides litigating the right to food to hold the government accountable, it is noted that chapter 9 institutions such as the South African Human Rights Commission (SAHRC), the Gender Equality Commission and the Public Protector all have important roles to play in holding the government accountable to the realisation of the right to food. This is because these institutions are constitutionally empowered to monitor and report on the measures and steps taken by the government towards the realisation of socioeconomic rights, including the right to food under the Constitution. The report concludes by noting that civil society groups in South Africa will need to be more active in monitoring steps and measures adopted by the government to realise the right to food. It also notes that, where necessary, litigation can be employed as a useful strategy to hold the government to account for its obligation to realise the right to food.
Accountability for ISIS atrocities : is the International Criminal Court a viable prosecutorial option?
(University of the Western Cape, 2016) Dale, Adi Dekebo; Werle, Gerhard
The Islamic State of Iraq and the Levant is a jihadist militant group. The members of this militant group have committed criminal acts of unspeakable cruelty. These staggering criminal conducts are documented by the United Nations, international human rights organisations, and media. Besides, the group itself gives first-hand information through social media and its magazine. Having witnessed the atrocities committed by Islamic State of Iraq and the Levant, the United Nations Security Council affirmed that the Islamic State of Iraq and the Levant’s conduct in Syria and Iraq is a threat to international peace and security. Therefore, the media and various role players have called for the intervention of International Criminal Court. This research paper analyses whether the International Criminal Court is a viable prosecutorial option to account the Islamic State of Iraq and the Levant members for their crimes. For the Court to be a viable prosecutorial avenue, it must have a jurisdiction. Accordingly, this research paper critically examines whether the International Criminal Court has subject matter, personal and/or territorial jurisdictions to try the Islamic State of Iraq and the Levant perpetrators. The study concludes that although the criminal conducts by Islamic State of Iraq and the Levant members constitute crimes under the Rome Statute, the Court, however, has limited jurisdictional reach over the perpetrators. It is submitted that with a limited and fragmented territorial and personal jurisdictional reach over the perpetrators, the Court is not a viable prosecutorial avenue.
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.
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.
Adding injury to insult: Intrusive laws on top of a weak system
(Constitutional Court Review, 2016) Ntliziywana, Phindile
Local governments often encounter difficulties when state functions and powers are devolved to them. Capacity at local level often becomes the Achilles heel of devolution. This is the case in South Africa. The South African national government has undertaken a variety of capacity-building initiatives to address the capacity problems faced in the South African system of local government. A flurry of legal instruments containing capacity-building measures have been passed and more are in the offing. This paper is inspired by the argument raised by Steytler and De Visser about the national government’s attempt to legislate systemic problems faced by municipalities out of existence.
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.
Addressing female genital cutting/mutilation (FGC/M) in The Gambia
(Routledge, 2021) Durojaye, Ebenezer; Nabaneh, Satang
The purpose of this chapter is to examine the viability of the use of criminal sanction to address FGC/M in general. It then examines the nexus between FCG/M and human rights and discusses the reasons often adduced to support use of criminal law to address FGC/M. Furthermore, it focuses on the amendment to the Women’s Act in The Gambia, which prohibits FGC/M. The paper evaluates the utility of the approach adopted by the Gambian government vis-a-vis its obligation under the Protocol to the African Charter on the Rights of Women (African Women’s Protocol). The paper concludes by noting that while the prohibition of FGC/M through sanction is important, such an approach will fail to achieve its desired aim of reducing the incidence of this practice unless other complementary measures are adopted by states.
Addressing Human Rights concerns raised by mandatory HIV testing of pregnant women through the Protocol to the African Charter on the Rights of Women
(Journal of African Law, 2008) Ebenezer, Durojaye
This article considers the importance of preventing mother to child transmission of HIV in Africa. It argues, however, that any approach to achieving this aim must be consistent with respect for human rights. In particular, it argues that mandatory HIV testing of pregnant women violates their rights to autonomy, health and reproductive care, and non-discrimination, all guaranteed in the Protocol to the African Charter on the Rights of Women and other international and regional human rights instruments. It concludes by arguing that respect for women's human rights should form the fulcrum for any call for mandatory or routine HIV testing of pregnant women in Africa.
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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