Magister Legum - LLM (Public Law and Jurisprudence)

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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.
Yhini i-socialism? Umhlaba wonke ezandleni zabantu: A critical diagnosis of South Africa’s attempt to amend the constitution to permit expropriation of land without compensation
(University of the Western Cape, 2024) Ntsholo, Lubabalo; Fessha, Yonatan
The resolution of the land question in South Africa has been a controversial topic since the advent of the democratic dispensation in 1994. To date, the African National Congress (ANC) government has been unable to lead a comprehensive programme of land reform that transfers land from the usurping colonial settler minority to the dispossessed native majority. This has been attributed to a number of factors, ranging from government ineptitude to the constitutional limitations imposed on government in pursuit of land reform objectives. The motion tabled in the National Assembly by the Economic Freedom Fighters (EFF) in 2018, to amend the Constitution to provide for expropriation of land without compensation, was the most direct test of the Constitution’s suitability to address the peculiar nature of the country’s settler colonial problem of land distribution. The basis of the motion was rooted in the country’s colonial conquest, and the legitimation of this conquest by a series of colonial laws, which affirm and reaffirm de Sousa Santos coinage of an ‘abyssal line’, more specifically in the development of the law in the country in a manner that excluded native participation. The motion sought to uproot these colonial systems and structures, to dismantle the abyssal line that precluded the dispossessed native from having rights to land. The motion, however, underwent various modifications as a condition for its adoption. The modification moved the motion from actual expropriation without compensation to an exercise of rewording the Constitution to make explicit that which is claimed to be implicit in relation to expropriation of land without compensation.
Ethnicity and the making of local boundaries in South Africa: perspectives from Vuwani and Malamulele
(University of the Western Cape, 2024) Kamushinda, Tafadzwa; Fessha, Yonatan
The study examines local boundary demarcations in the South African context, specifically exploring the relevance of ethnicity as a determining factor in Vuwani and Malamulele. The study explores the nature and significance of boundaries and, drawing upon a comparative perspective from various jurisdictions, it compares demarcation criteria, with a primary focus on functionality and ethnicity. The study concludes that the disputes in Vuwani and Malamulele stem from local government inefficiencies, such as inadequate service delivery and a lack of consultation by the Municipal Demarcation Board. Ethnicity is found not to be a core issue. Based on that, the study advocates for a continued emphasis on functionality in the demarcation criteria in South Africa. The recommendation is grounded in the understanding that functionality acts as an equalizer, that limits conflicts and facilitates more effective and equitable service delivery across boundaries.
Women’s right to abortion versus paternal rights in South Africa
(Universty of the Western Cape, 2024) Zweni, Bongumsa; Diala, Anthony C.
The right to abortion is regulated by various sections of the Constitution, including section 12(2)(a), which provides that everyone has the right to make decisions regarding their reproductive health, as well as section 27. The aforementioned right is further provided for by the Choice on Termination of Pregnancy Act 92 of 1996. This Act was enacted for the sole purpose of regulating the termination of pregnancy in South Africa. Despite the fact that the right to abortion is legally protected, there is great stigmatisation surrounding abortion, women are shunned and shamed for legally seeking an abortion. This unfortunately leads to unsafe abortions performed by unqualified persons at some backroom in Soweto, increasing the number of deaths arising from unsafe abortions. Almost thirty years after the enactment of the Termination of Pregnancy Act. An Act which sought to protect women’s reproductive rights and affirm their right to freedom of choice.
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.

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