Magister Legum - LLM (Public Law and Jurisprudence)

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Preventing the statelessness of refugee children through the statelessness determination procedure: Lesson for South Africa
(Universty of the Western Cape, 2022) Janda, Sinovuyo; le Roux, Wessel
By exploring the different causes of childhood statelessness in displaced children on a global scale, this thesis aims to highlight the urgent need to end childhood statelessness. The importance of statelessness determination procedures will also be considered, and in turn the lessons South Africa can gain will be explored. The thesis argues, based on a literature review, that there are patterns that contribute to statelessness, and if these patterns are recognised, laws and policies can be implemented to combat them.
An analysis of the scope of sexual consent in bondage, domination, discipline, submission and sadomasochistic practices
(University of the Western Cape, 2023) Titus, Merique David; Sanger, Cherith
Background : Women are a historically marginalised group in society. Their sex (and gender) has been used as grounds for their sexual objectification which in turn exposes them to harmful acts. Accordingly, at both international and domestic levels, an array of legal protections underpins the efforts to eradicate gender-based violence (GBV) and, more specifically violence against women (VAW). Sexual objectification is an all-encompassing process whereby men construct [women’s] sexuality solely for their intended benefit and pleasure. These practices are often supported and promoted by women who have been socially conditioned to conform to the status quo.
Erosion of presidential term limits in practice: a comparative study of unconstitutional constitutional amendments in African states
(University of the Western Cape, 2023) Juta, Sinozuko; Fessha, Yonatan
Tracing the constitutional strategies of incumbents in African countries, the study documents the range of constitutional strategies these incumbents have pursued when they reached the end of their prescribed term to remain in office. The study shows that in many African countries amendments are frequently passed by following formal democratic procedures but result in anti-democratic constitutional outcomes, helping powerful presidents extend their term in office. The incumbents universally display nominal respect for the constitution by using constitutional rules and procedures to circumvent term limits, abusing the numerical advantages of two-thirds attempting to amend the constitution. The study presents the unconstitutional constitutional amendments doctrine as an institutional device for preventing a coup by constitutional means to erode term limits. Limiting the power of constitutional amendment can have clear democratic benefits. One way to do this is via a judicially enforceable unconstitutional constitutional amendments doctrine. The study establishes how judiciaries across jurisdictions have successfully deployed the unconstitutional constitutional amendments doctrine to prevent attempts of term limit evasion.
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?
The role of second chamber in representing subnational units: A comparative study of Nigeria and South Africa
(University of the Western Cape, 2023) Shabangu, Siboniso Andrew; Fessha, Yonatan
The purpose of the research is to investigate the effectiveness of representation of subnational units in Nigeria and South Africa in the second chamber. In both countries, the subnational unit is represented equally in the second chamber. In Nigeria, the second chamber guarantees equal representation with three senators to each of the thirty-six states, regardless of size in the senate, plus one senator representing the federal capital territory Abuja. Similarly, in South Africa, each province is equally represented in the second chamber by ten delegates from each of the nine provinces, regardless of population. The distinction between the two countries is that members of the second chamber in Nigeria are elected directly, whereas members of the second chamber in South Africa are appointed by the provincial legislature. Both second chambers enjoy considerable power over bills that affect subnational units. The study found that the second chambers in South Africa and Nigeria are not actually representing the subnational unit in the national decision-making process. Members of the two second chambers are frequently using their substantial powers to pursue their political parties’ agendas and choices, that conflict with the goals of their subnational entity. Also, institutional operating procedures prevent subnational unit legislatures from adequately assessing a bill, drafting a mandate that takes these issues into account, and directing their delegates to vote effectively. Therefore, the second chamber remains ineffective representatives of subnational interests, depriving the federation of the benefit of an organization that properly represents the subnational unit.
Risks and benefits of the eradication of African customs by modernity
(University of the Western Cape, 2023) Zhakata, Petula Pepukai; Diala, Anthony
African customs define the African people. Despite their varying cultures, Africans possess similar features which make it easy for them to identify each other. Before colonisation, African tribes sometimes fought amongst themselves. However, they still preserved their customs. The colonial era affected Africans by bringing them under the influence of foreigners who were unaware of the significance of indigenous customs. The colonial experience initiated the eradication of African customs, which is continued by modernity/globalisation. This mini thesis examines the risks and the benefits that modernity/globalization poses to the survival or eradication of indigenous African laws. It argues that there is a link between colonialism, globalisation, and modernity, and their effects on the African continent, specifically on African customs. Modern Western ideals have both positive and negative effects on social and emotional wellness, with some advancing economic progress while others slow it down. The thesis finds that most natives who mindlessly adopted Western ideas are currently experiencing a cultural identity crisis. It suggests that because culture is unique and profitable for communities to progress from a particular stage of advancement to the next, positive aspects of culture such as communal welfare should be protected by African governments.
An Assessment of South Africa’s Intergovernmental Relations System as a Response to the Covid-19 Pandemic
(University of the Western Cape, 2024) Mzingelwa, Andisiwe; Steytler, Nico; Stevens, Curtly
South Africa was among the numerous nations impacted by the Covid-19 pandemic. The health systems in every nation were overhauled because of this pandemic, which claimed countless lives. The pandemic in South Africa, however, also had a direct impact on the system of multilevel governance, since it necessitated cooperation between the national, provincial, and local governments, particularly in disaster management. According to schedule 4 (Part A) of the 1996 Constitution, disaster management in South Africa is a concurrent function between the three spheres of government. The intergovernmental relations (IGR) structures were put in place for the concurrent functions, disaster management being one of them, since the three spheres could only collaborate through the IGR structures to manage the Covid-19 pandemic.
Virginity testing and male circumcision: harmful practices of customary law?
(University of the Western Cape, 2006) Moeketse, Wendy; De Villiers, Francois
When dealing with an issue of customary law, one has to begin by giving a definition of customary law for the purposes of understanding. Customary law is defined in the Recognition of Customary Marriages Act1 as being customs and usages traditionally observed among the indigenous African peoples of South Africa and which forms part of the culture of those peoples. South Africa has many different customs that are practised but mainly two are to be dealt with in this paper, and they are male circumcision and virginity testing. These practices have raised some tension between traditionalists and the legislatures (which are backed by GO's who stand for human rights) on the constitutionality of the provisions of the Draft Children's Bill, which seeks to outlaw the harmful practises of customary law. This research paper aims to illustrate how harmful these practises are in society and even though the Constitution does not deny anyone the right to practise his or her culture, as long as it is consistent with the Bill of Rights, also taking into consideration international law.
Commercial ostrich farming: a critical analysis of South Africa’s flightless animal welfare and well-being legislation
(University of the Western Cape, 2023) Doak, Celine; Van Der Berg, Angela; Wilson, Amy P.
Game farming is becoming an increasingly lucrative industry. The owning of game animals and farms has been around for decades and has increased significantly. This situation is illustrated by the fact that in 2019 there were approximately over 10 000 game farms in South Africa as opposed to 1991 where there were around 3 500.In the past, wild animals were considered as ‘res nullius’ meaning that they were owned by no one. Ownership was achieved by having physical control over the animals through the South African common law. Resultantly, animals roaming on a game farm did not necessarily belong to the landowner as they had no physical control over the animal concerned. Game farms are essentially farms which keep and/or breed certain wild captive wild animals (referred to as ‘game’) on a farm for either commercial or aesthetic purposes. Already in 1980 and 1981, 1446 tonnes of venison was exported from South Africa, showing that game has been commercially farmed for decades.4 ‘Industrial farming’, in turn, has been defined by the National Resources Defence Council5 as being a large-scale intense production of both crops and animals and is also known as commercial farming or factory farming.
Children's right to consent to medical treatment and a consideration of the changes effected in the Children's Bill B70 D of 2003
(University of the Western Cape, 2006) Fakier, Zarina; Sloth- Nielsen, Julia
Children's rights to consent to medical treatment and the balancing of parental rights have become the focus of much debate in South Africa over the last few decades. Issues concerning the age at which children can consent to medical treatment, either with or without parental consent, have become pertinent especially in light of the escalating HIV pandemic. This thesis examines the law as it developed with particular regard to the age at which children can consent to medical treatment and have access to contraceptives. It will further examine the role that parents play when children exercise their right to consent to medical treatment and access to contraceptives. Several changes have taken place in domestic legislation and this thesis will analyse those changes with reference to the provisions on the protection of health rights of children.
Variations in the adoption of children: African versus Western Jurisprudence
(2024) Aplane, Kelebogile Magan; Diala, Anthony C.
During the colonial era, South Africa's indigenous normative order was subjugated by European laws, which led to a distortion of indigenous laws and the perception that Western jurisprudence was the supreme law. However, the validity of the imposed European laws is vitiated by the use of violence on indigenous people through colonisation. Indeed, this is the basis on which common law (Roman-Dutch law and Roman law) was imposed on South Africa. As a result, customary law has been subordinated and denigrated through colonial legislation, which relegated it, through the repugnancy clause, to be inferior to the common law.
A critical analysis of political corruption within the executive and the role of the constitution
(University of the Western Cape, 2023) Kati, Siphesihle; Nortje, Windell
The achievement of constitutionalism in South Africa is often applauded for its pivotal liberation that it laid upon individuals through bureaucracy, human rights, institutionalism, and moral science. However, there should be a level of consideration for the idea of constitutionalism having also opened a gap that enables societies to operate in a destructive manner. Particularly, this paper asks whether in South Africa the current transformative constitutionalism grants permission for political corruption to exist within its civilisation. This study is meant to execute a critical analysis of the Constitution of the Republic of South Africa 1996 (1996 Constitution). Precisely focusing on the constitutional obligations set in Chapter 5 of the Constitution and its contribution on the rife of political corruption and disturbance among other constitutionally guaranteed provisions. Since the early 1900s, constitutional law in South Africa has always been a participating factor regarding the instability of the state, specifically when it comes to the powers given to the ruling government. Therefore, the relationship between political corruption and constitutional law is not a new age dilemma. However, there is a lack of literature contribution on the issue. This study will uncover the relationship between constitutionality and political corruption using the qualitative method based on legislation, judicial precedent, publications, and literature reviews. The aim of this research is to provide clarity within the battle of political corruption. This assessment is to touch on the history of constitutional law in South Africa and the constitutional obligations that are currently at war.
Inadequate representation of female attorneys in the legal profession in South Africa
(University of the Western Cape, 2023) Mbantsa, Phelokazi; Diala, Anthony
Female law graduates have significantly increased in South Africa over the past few decades. Yet, female attorneys are still underrepresented in the legal profession. Historically, men have dominated the legal profession and female attorneys frequently experience bias and discrimination that impede their ability to develop in their careers. Using a desktop research method, this study examined the underrepresentation of female attorneys in the legal profession in South Africa. The study reviewed current literature on the topic, as well as case law, constitutions, legislation, journal articles, and other pertinent materials. It sought to discover the extent to which female attorneys in South Africa are represented in a primarily male-dominated legal profession. It indicated that the scarcity of female attorneys is due to a combination of systemic hurdles, gender discrimination, and societal customs. These factors have significant impact on female attorneys’ professional experiences, career trajectories, and overall job satisfaction. Based on the review of the literature, the study recommends several potential solutions to address the issue, including implementing policies that address gender bias, providing mentorship and support for female attorneys, and increasing opportunities for female attorneys to advance into leadership positions. This study provides valuable insights for legal practitioners, policymakers, and other stakeholders interested in promoting gender equity and diversity within the legal profession in South Africa.
Muslim family law and judicial protection of women’s rights in Kenya: an assessment
(University of the Western Cape, 2023) Kunyuk, John Tito; Diala, Anthony C
The status of women in Muslim majority and minority states is a major question in the articulation of rights in non-Western settings. Contestations over women’s rights in these societies are thought to stem from conundrums that Muslims face when they struggle to comply with constitutional and statutory norms that reify equality and non-discrimination, while staying true to the teachings of their religious tradition, which may not necessarily reflect those norms. This study set out to explore the practice of Muslim Family Law in Kenya in order to assess whether and the extent to which the law, as it is currently adjudicated in Kenyan courts, protects the rights of women. The study examined the evolution of Muslim family law and the legal and institutional frameworks that underpin the protection of Muslim women’s rights in Kenya. The study relied on case law from the Kadhis’ court, the High Court and the Court of Appeal in the assessment of judicial protection of women’s rights. Findings reveal that women assert their family law rights in the courts by using tools within the Islamic legal tradition and taking advantage of state laws, which promote an egalitarian vision of rights. Courts are found to be proactive in allowing women’s access to their rights and redressing violations of rights in the adjudication of Muslim family law. However, the lack of clarity on jurisdictional questions and the absence of a definitive madhhab or school of law in the administration of Muslim family law are found to be drawbacks that may hamper women’s enjoyment of their rights. It is recommended that amendments of the laws be made to redress legal indeterminacy.
Preventing the statelessness of refugee children through the statelessness determination procedure: Lesson for South Africa
(University of the Western Cape, 2022) Janda, Sinovuyo; le Roux, Wessel
By exploring the different causes of childhood statelessness in displaced children on a global scale, this thesis aims to highlight the urgent need to end childhood statelessness. The importance of statelessness determination procedures will also be considered, and in turn the lessons South Africa can gain will be explored. The thesis argues, based on a literature review, that there are patterns that contribute to statelessness, and if these patterns are recognised, laws and policies can be implemented to combat them.
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.
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.
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.
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.
The right to development as a normative framework For the human rights obligations of international financial institutions
(University of the Western Cape, 2008) Tadeg, Mesenbet Assefa; de Visser, Jaap
Human rights are the product of different stages of human struggle that took place throughout history. The advent of the right to development in the international arena is part of the result of the struggle of developing countries for a New International Economic Order (NIE0).1 The right to

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