Magister Legum - LLM (Public Law and Jurisprudence)

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Children and domestic violence: should child exposure to domestic violence be regarded as child abuse?
(University of the Western Cape, 2025) Ngcingane, Nonelwa
Domestic and family violence is a pervasive and frequently lethal problem that challenges society at every level. Violence in families is often hidden from view and devastates its victims physically, emotionally, spiritually, and financially. It threatens the stability of the family and negatively impacts on all family members, especially the children who learn from it that violence is an acceptable way to cope with stress or problems or to gain control over another person. It violates communities’ safety, health, welfare, and economies by draining billions annually in social costs such as medical expenses, psychological problems, lost productivity, and intergenerational violence. Domestic violence is a prevalent problem globally.2 The World Health Organisation (WHO) conducted a prevalence data survey from 2000-2018 across 161 countries and found that 30% of women have been subjected to physical, sexual violence or both by an intimate partner.3 Moreover, in the same study, the WHO estimates that 38% of all murders of women are committed by an intimate partner.4 South Africa is known as one of the countries with high rates of domestic violence.5 It is estimated that 51% of women in South Africa have experienced abuse in their lifetime and 78% of men admit to having been perpetrators of women abuse.6 To highlight the severity of this matter, the number of protection orders obtained by victims of domestic violence amounted to 668 873 between the year 2009 to 2011.7 It is notable that in South Africa, domestic violence often results in the murder of women by their husbands and boyfriends.8 The interpersonal violence encountered by South African adolescents is respectively 5 to 8 times higher than the global average.
Exploring options in law for the legal recognition of the ‘rights of nature’ in South Africa: lessons from Ecuador, New Zealand, India, and Uganda.
(University of the Western Cape, 2024) Gumbo,Tinashe Pride
Human-induced activities such as pollution, burning fossil fuels and deforestation among others have been blamed for the current global environmental crisis. The recognition of the rights of nature (RoN) could be one of the solutions necessary to alleviate this crisis. Many countries across the world including Ecuador, New Zealand, India and Uganda have embraced and codified the RoN as a tool that emphasises a more harmonious relationship between humans and nature and therefore, deserving recognition and protection. These countries have uniquely strengthened the RoN protection in varying ways. While Ecuador constitutionalised the RoN, New Zealand recognised legal personhood by reaching an agreement with an indigenous community and further drew up legislation focusing on one aspect of nature (in this case rivers) instead of nature as a whole. On the other hand, India relies on the judiciary to protect the RoN through litigation, and Uganda amended the existing law to include the RoN. Regrettably, South Africa’s position is unclear in considering the recognition of the RoN albeit its White Paper on the Conservation and Sustainable Use of South Africa’s Biodiversity which aims to recognise the intrinsic value of nature, in addition to jurisprudence recognising this right. This study explores the legal options for South Africa in recognising the RoN. It argues that such recognition would help supplement and strengthen the constitutional protection of the environment. It will allude to the experiences in Ecuador, New Zealand, India and Uganda, to determine what option South Africa could follow to recognise the RoN.
Municipal regulation of food and waste pickers on landfill sites in South Africa: What should municipalities (dis)allow?
(University of the Western Cape, 2019) Damon, Lucille Tracy
The unemployment rate in South Africa is alarmingly high. In the year 2018, the unemployment rate was recorded at 27.2%. Many people are forced to do desperate, and even dangerous things in order to sustain themselves. This includes people going into landfills to collect recyclable materials to sell and look for a meal. Collecting and retailing recyclable waste has become an informal source of income for thousands of people in South Africa. Waste pickers are individuals whose survival largely depends on collecting, sorting and selling recyclable waste. Waste pickers are defined as people who “collect, sort and sell reusable and recyclable materials”. They embark on waste picking as a means of survival. Given the fact that informal waste management is not regulated by the government, waste pickers are left vulnerable to exploitation and hazardous working environments. Waste pickers are denied access to landfills by either private companies, where municipalities have outsourced this function, or by municipalities themselves. Depending on the management of the landfill, waste pickers could also potentially be faced with crime on landfills with gangsters robbing them of their recyclables and/or hard earned money.
Unfair discrimination in the South African workplace against women wearing headscarves for religious reasons.
(University of the Western Cape, 2025) Harris, Shakira
This dissertation examines unfair discrimination in the South African workplace against women wearing headscarves for religious reasons. None of the rights contained in the Constitution of the Republic of South Africa, 1996 (the Constitution) are absolute. An employee’s right to religious freedom (and the expression thereof in the workplace) is subject to certain limitations. This is particularly pertinent in the workplace. Employers have the right to require employees to conform to the inherent requirements of the job (IROJ), as provided for in section 6(2) of the Employment Equity Act 55 of 1998 (EEA). Employers are also entitled to conduct their business in accordance with their set operational requirements. Both parties to the employment relationship (employee and employee) are governed by the relevant legislative framework, which is to be interpreted against the overarching constitutional right to fair labour practices expressed in section 23 of the Constitution as well as section 186 of the Labour Relations Act 66 of 1995 (LRA). Consequently, an employer has the right to request the expression of religious beliefs on the part of an employee (for example a female employee who insist on wearing a headscarf for religious reasons) to conform to the IROJ and or operational requirements failing which the employer may take certain steps to reasonably accommodate the employee. In terms of section 15 of the Constitution, the right to freedom of conscience, religion, thought, belief, and opinion are fundamental rights. These rights must be read together with the provisions of section 9 of the Constitution; which provides for equality and equal protection as well as the prevention of unfair discrimination on the part of the State or any person (including an employer). The right to religious freedom, and equality rights, should be considered together with section 10 that protects human dignity. The potential clash in the workplace of the right of religious expression on the part of an employee with the IROJ (or operational requirements) of the employer raises concerns as to the resolution of, namely the wearing of a headscarf. The proposed study will explore the unfair discrimination female employees experience in the South African workplace as a result of wearing headscarves for religious reasons and measures that can be taken by both the employee and employer to address this problem.
The interplay between competition and patent laws in relation to access to medicines during future pandemics: A case study of the South African COVID-19 experience.
(University of the Western Cape, 2024) Makwara, Cathrine Ashley
Competition law and its enforcement have become necessary tools in combating global health crises. This is especially true in light of the COVID-19 epidemic, which has made it imperative to increase access to emergency medications. Many nations were forced to rely on pharmaceutical companies to decide the cost and quantity of COVID-19 vaccinations to be supplied. Considering the high number of deaths and infections associated with the pandemic, with the World Health Organisation reporting over 7 million deaths, more could have been done to prevent such mortality had the issue of accessibility of vaccines been resolved at an earlier stage to ensure a balance of the enjoyment of the patents as well as the right to health. One hand of the argument is the need for inventors to recuperate costs incurred in research and development and enjoy the monopoly granted by patents once vaccines have been developed. On the other side of the coin, competition law seeks to regulate any anti-competitive behaviour and it is undeniable that abuse of dominance which has resulted in extreme cases of exorbitant pricing of medication in the pharmaceutical industry needs to be curbed. As a solution, this current study makes specific recommendations that are directed at promoting the access to medicines in future pandemics by balancing intellectual property rights to competition law, drawing lessons from the COVID-19 experience in South Africa.
The Use of Pre-sentence Reports in the Deterrence of Drug-related Gang Activity in South Africa
(University of the Western Cape, 2025) Dart, Chinique Elizabeth
There are several outside influences that impact the criminal conduct of an offender. Pre-sentence reports must be used where the offender is to be properly and effectively rehabilitated, this is a key consideration. The only way to successfully implement rehabilitative measures is to examine all the circumstances that led to the crime. This paper is centred on the judiciary’s potential to take action and compel the use of pre- sentence reports not only as a deterrent to gang activity but also as a method of upholding the principles of sentencing. It is challenging to disregard the potential impact pre-sentence reports may have on the offender and the community they are endangering. There will be a further discussion as to what the legal system and specifically the judiciary can do, to stop gang violence and the ingrained “an eye for an eye” maxim. Psychological and societal factors influence the urge for survival in South African gang activity. The responsibility of the judiciary to reduce the offenders’ capacity and need for using violence to establish dominance and power over their communities, will be explored. By denying the significance and influence of pre-sentence reports, one is merely supporting the idea that prisons are training grounds for criminals. A pre-sentence report’s possible preventative authority will be discussed. This issue extends beyond the convicts’ rehabilitation since it also involves the need for retribution for those who suffer in gang-infested regions. The question to be answered is whether the pre-sentence reports are being used effectively.
A critical legal analysis of elephant welfare and management considerations in South Africa’s environmental law and policy framework.
(University of the Western Cape, 2024) Theron, Ethel Meryl
Animal welfare refers to the humane treatment, care, and husbandry of animals. To take animal welfare into consideration is to protect and cater to the physical and mental needs of the animal. For many years, the topic of animal welfare has evaded the international and national legal realms. It was viewed as too controversial, and to a large extent, has still not been dealt with directly, globally, and nationally, with a few exceptions. Recently, there have been four cases in South Africa where specific reference has been made to the importance of animal welfare and acknowledgment of the existence of sentience in wild animals. This has been a progressive realisation in the South African judiciary. South African government needs to urgently promulgate comprehensive and holistic legislation that emphasizes the importance of animal welfare to ensure that reserves, parks, and zoos can properly manage wildlife. The 2008 Norms and Standards regulating the Management of Elephants are somewhat progressive with respect to welfare considerations. However, the owners and managers of elephants as well as conservation authorities have been facing challenges regarding the enforcement and implementation of these Norms and Standards. The Department of Forestry, Fisheries and Environmental Affairs (DFFE) proposed that amendments be made to address the challenges.
An analysis of the amendments to the regulations issued in terms of the Electricity Regulation Act 4 of 2006 that empower municipalities to generate their own (renewable) electricity and purchase from Independent Power Producers
(University of the Western Cape, 2024) Ngcobo, Mnotho Thamsanqa
Background: South Africa, just like many other countries in the world, has an energy system that is based primarily on fossil fuels such as coal and oil. South Africa remains largely dependent on coal. Fossil fuel-based energy poses many challenges to the environment, the people, and the economy. Particularly, extractions and the processing thereof cause environmental effects and damage, including air and water pollution. The greenhouse gases emitted contribute to climate change. There have been reports of high respiratory infections among the people residing close to the plants and the workers thereof. Coal ash, the by-product of burning coal made up of small particles, including heavy metals and radioactive elements, is discarded in open-air landfills where it can be emitted into the air, contributing to air pollution in the surrounding community. Thus, leaving the residents from the nearby mines susceptible to illnesses caused by the air-pollution. The Mpumalanga province has been declared as an air quality priority area because currently, this province has amongst the worst air quality in the world, largely due to coal mining activities, uncontrollable underground fires, and power-stations burning coal. Fossil fuel-based energy is no longer the cheapest form of energy. The costs of fossil fuels-based energy depend largely on two factors, the price of the fuel that they burn and the power plant’s operating costs.
Federalism in South Africa: Origins, operation, and its contemporary (ir)relevance
(University of the Western Cape, 2024) Xaba, Wandile Calvin Gerald
Following the end of apartheid in the early 1990s in South Africa, negotiations between major political groups of the country produced the Interim Constitution of 1993 approved by the Multi-Party Negotiating Council, which resulted in the country’s first democratic and multi-racial elections in 1994. The current 1996 Constitution was prepared during the transition period in line with the Constitutional Principles of the Interim Constitution. There are federal principles entrenched both in the Interim Constitution and Final Constitution which make South Africa a federal state. However, the operation of federalism in South Africa is not clear because the ANC government is anti-federalism, hence, it governs the country as though it were a unitary state. The DA-led Western Cape provincial government has introduced a Provincial Powers Bill that aims at increasing provincial powers. The study traces the origins of federalism in South Africa and examines its operation and contemporary (ir)relevance in today’s South Africa, against the background of a federal government that operates as a unitary state and the desires of the DA-led Western Cape province to obtain more powers.
Power sharing as a tool of conflict management in Somalia
(University of the Western Cape, 2024) Adam, Abdullahi Abdulkadir
Background: Managing intercommunal conflict through power-sharing is widely regarded as a viable democratic method in divided societies. Communities with conflicting identities or communities where civil war poses a threat to the country's stability often use power sharing to resolve long-standing patterns of conflict and live in peace with one another.1 In most conflict-affected countries around the world, power sharing has created success stories although that has not always been the case. Historically, there have been few successful examples of formalized power sharing on the African continent. For example, Nelson Mandela became the elected President of South Africa on 27 April 1994, and that put an end to the country’s long-existing policy of apartheid.2 In Kenya, the country's two major parties agreed on a power-sharing arrangement after disputed elections in 2007 to end ethnic clashes. 3 As a result of the agreement, both parties became equal partners in a grand coalition government. The agreement has proven effective in resolving ethnic conflict and restoring peace in Kenya. The power-sharing agreement was able to put forward a new constitution (approved by popular referendum in August 2010) and hold the next election peacefully (in March 2013) during its five-year tenure. Unlike South Africa and Kenya, many other countries have failed to use power sharing as a tool for conflict resolution and state building.
Towards sustainable water management in the context of coal mining in South Africa: A critical reflection of the ongoing Lephalale coal mining project
(University of the Western Cape, 2024) Maqabuka, Anitha
Even though mining plays a major role in the economic development of South Africa, its detrimental impacts pose significant constraints on local communities’ rights. Such is the case with the right to access to water. Mining is one of the biggest contributors to water pollution, which impacts negatively on human life, particularly when heavy-metal-contaminated water is used. Water as an essential constituent of life is under threat in Limpopo Province, where approximately 40 per cent of the population does not have access to adequate water. The situation is exacerbated by the fact that coal-mining activity in Lephalale poses a significant threat to water resources through pollution. Furthermore, polluted water is detrimental to biodiversity and thus destroying ecosystems and vegetation that serve as livestock feed. The mining sector has been using water without regard for its negative impact on human health. Acid mine drainage and consequent water contamination have become a public controversy, given that contaminated water leads to death and the spread of disease.
A critical examination of the legal protection of climate refugees: lessons from recent case law in Australia and New Zealand
(University of the Western Cape, 2024) Davids, Ashlyn; van der Berg, Angela
As the climate crisis worsens, a growing number of people are being forced to flee their homes due to climate-related events.1 Such people are typically referred to as climate refugees.2 According to Institute for Economics and Peace (IEP), it is predicted that at least 1,2 billion people across the globe could be displaced by climate-related events by 2050.3 Human activity is the main driver of climate change.4McAdam states that an analysis of climate change-induced displacement can be traced back to earlier deliberations on environmental displacement, which were particularly prominent during the 1990s.5 Climate change6 has diverse negative impacts on human systems, including on water security and food production and cities, settlements and infrastructure.7 In general, refugees are protected by international law instruments. International human rights law and refugee law are closely intertwined as the system for protecting refugees at the international level is human rights-based.8 This places the dignity and rights of individuals and vulnerable groups at the centre of protection.9 In the case of Ioane Teitiota v New Zealand10 (hereafter referred to as Teitiota case), it was verified under human rights law that the principle of non-refoulement requires no one to be forcibly returned to a country, where climate change impacts expose them to life-threatening risks or cruel, inhuman, or degrading treatment.11
A comparative legal approach to mining rehabilitation funding schemes in South Africa and Western Australia
(University of the Western Cape, 2024) Fredua, Agyemang ; Ashukem, Jean-Claude Nkwanyuo
Despite the environmental and social challenges posed by historically abandoned mine sites to host communities, little effort has been made by the mining industry and governments to rehabilitate the environment. Mine rehabilitation projects are typically costly. In many instances, mining companies do not have a specific stance on funding sources for rehabilitation once the economically productive phase of the mine has concluded. Moreover, there is a lack of clearly assigned responsibilities and an absence of criteria and standards of rehabilitation for abandoned mines. South Africa is not exempt from the plague of abandoned mines because, for many years, environmental liabilities relating to mine closure have not been managed appropriately. As such, most mines have been simply abandoned. South Africa is believed to have around 6,000 deserted mines. Legislation has been enacted to address this issue. These include the National Environmental Management Act (NEMA) of 1998, the Mineral and Petroleum Resources Development Act (MPRDA) of 2002, and the Regulations pertaining to the Financial Provision for Prospecting, Exploration, Mining, or Production Operations, including National Environmental Management Act: Regulations: Financial provision for prospecting, exploration, mining or production operations (GNR1147). These legislative measures are designed to promote the polluter pays principle (PPP), which requires mines to bear the financial burden of environmental damage they cause.
Flawed corporate governance of state-owned entities (SAA) in South Africa: lessons from Rwandair and Ethiopian airlines
(University of the Western Cape, 2024) Moganane, Kago; Wandrag, R
State-owned companies (SOEs) hold a distinct and contrasting position in the majority of governments worldwide. They function as commercial enterprises while also being obligated to promote the political interests of the state. The term SOEs lacks a specific or widely agreed-upon definition. The Organisation for Economic Co-operation and Development (OECD) defines SOEs as enterprises where the state has considerable control through full majority or major minority ownership. This definition encompasses SOEs that are owned by the central or federal government, as well as those owned by regional and local governments. Another definition is that SOEs are: entities in which the state owns more than 50% of voting shares of joint-stock companies (JSCs), or more than 50% of shares in the authorised capital of limited liability partnerships, including national managing holdings, national holdings, and national companies, in which the state is a participant or shareholder, as well as subsidiaries and affiliated organizations that are part of their corporate structure, except for non-residents.4 On the African continent, SOEs play an important role in many of the countries’ economies.5 They have a vital role in national development as they provide citizens with commodities such as water, health sanitation, electricity, and telecommunications.6 In the Southern African economies, SOEs are fundamental drivers to remedy market failures and remove direct obstacles to development
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.
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.
Violence against women in South Africa: an event that disturbs public order in terms of the oau refugee convention?
(Universty of the Western Cape, 2024) Grosch, Shunelle; Loedolf, Kim-Leigh
The OAU Refugee Convention incorporates and expands upon the refugee definition outlined in the 1951 UN Convention, with the aim of addressing the unique challenges faced by refugees in Africa. Despite this, little is known about the implementation of the expanded refugee definition outlined in OAU Refugee Convention. This thesis critically analyses the OAU Refugee Convention, particularly the enumerated refugee producing ground of “events seriously disturbing public order” (ESDPO). Despite its ambiguous nature, the ground of ESDPO is becoming increasingly significant in asylum applications. This thesis acknowledges that ESDPO encompasses a series of international or domestic instances of war, violence and climatic events that grossly violate the fundamental human rights of an indeterminable number of individuals within their country of origin. These fundamental human rights include the right to life, human dignity, freedom and security of person. Violence perpetrated against women is a clear infringement upon the fundamental human rights of women worldwide. South Africa is known as the femicide capital of the world. Furthermore, the prevalence of violence against women in South Africa has reached epidemic proportions, posing a significant societal problem. Against this backdrop, this thesis examines the extent to which violence against women in South Africa constitutes ESDPO in terms of the OAU Refugee Convention.
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.
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.
Sustainable water management in the context of coal mining in South Africa: a critical reflection of the ongoing lephalale coal mining project
(University of the Western Cape, 2024) Maqabuka, Anitha; Ashukem, Jean-Claude Nkwanyuo
Even though mining plays a major role in the economic development of South Africa, its detrimental impacts pose significant constraints on local communities’ rights. Such is the case with the right to access to water. Mining is one of the biggest contributors to water pollution, which impacts negatively on human life, particularly when heavy-metal-contaminated water is used. Water as an essential constituent of life is under threat in Limpopo Province, where approximately 40 per cent of the population does not have access to adequate water. The situation is exacerbated by the fact that coal-mining activity in Lephalale poses a significant threat to water resources through pollution. Furthermore, polluted water is detrimental to biodiversity and thus destroying ecosystems and vegetation that serve as livestock feed. The mining sector has been using water without regard for its negative impact on human health. Acid mine drainage and consequent water contamination have become a public controversy, given that contaminated water leads to death and the spread of disease.

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