Magister Legum - LLM (Public Law and Jurisprudence)

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The justiciability of the right to housing to advance social rights: The case of Cape Town and Rotterdam
(University of the Western Cape, 2026) Lettinga, Doutje; Mezmur, Benyam Dawit
This thesis examines how the justiciability of housing rights influences their realisation through an analysis of housing and spatial justice struggles in two urban contexts, both centring around the effects of gentrification on the rights of marginalised communities: the Tafelberg case in Cape Town and the Tweebosbuurt case in Rotterdam. It explores how the different legal frameworks of South Africa and the Netherlands shape the adjudication of housing rights claims of urban social justice movements. It examines how the different modalities and scope of justiciability of the right to housing in both countries shape access to justice in different ways, illustrating how the 1996 South African Constitution provides more opportunities for lower income and/or historically marginalised residents who are being displaced by gentrification to enforce their rights to adequate housing through court. It also puts forward that, beyond the justiciability of the right to housing, courts can play a proactive role in rights protection if they progressively interpret international human rights and constitutional law. It is shown how the International Covenant on Economic, Social and Cultural Rights, read together with the South African Constitution, creates an obligation for (local) governments to adopt measures towards protecting and advancing the right to adequate housing that are at odds with (elements of) urban gentrification policies that further limit access to affordable housing of vulnerable groups. The two cases demonstrate that the extent to which the adjudication of social rights can contribute to advancing housing and spatial justice agendas also depends on the judiciary’s willingness to identify and enforce positive obligations and to subject urban housing policies to substantive review. While the thesis does not aim to make a comparison between the two countries’ legal approaches nor presents an exhaustive examination of housing rights cases, it contributes to ongoing debates about whether, how and to what extent courts can advance progressive social rights agendas.
A legal analysis of the role of local government in the production and procurement of renewable energy in South Africa
(University of the Western Cape, 2026) Makora, Misheck; Steenkamp, Rochine Melandri
South Africa’s electricity supply crisis has been characterised by recurring load-shedding since 2007, with severe socio-economic and governance consequences for municipalities responsible for basic services such as electricity reticulation as outlined in Schedule 4 Part B and section 156 of the Constitution of the Republic of South Africa, 1996. Although there have been extended periods in which load-shedding has been suspended in recent years, including a prolonged suspension since mid-May 2025 as reported by Eskom, the underlying legal and institutional constraints affecting municipal energy security, affordability, and reliability remain contested and consequential. While municipalities are responsible for distributing electricity within their jurisdictions, they are often constrained because of inconsistent electricity supply from Eskom. Efforts to procure from alternative renewable energy sources such as Independent Power Producers are hindered by the requirement to first obtain ministerial determination in terms of section 34 of the Electricity Regulation Act of 4 of 2006.
Local government’s pursuit of the just energy transition: legal perspectives on the city of Cape Town
(University of the Western Cape, 2026) Koen, Jayde; Steenkamp, Rochine Melandri; Van der berg, Angela
Energy plays a critical role in social and economic development, especially considering the increasing energy demands projected for 2050, globally and in South Africa (SA). The current state of energy access in SA specifically raises concerns about economic, environmental, and resource security costs. The transition from fossil fuel-based energy systems to low-carbon renewable energy systems is crucial due to the detrimental effects caused by GHG emissions. The concept of a "just energy transition" (JET) focuses on the pragmatic progression from fossil-fuels toward cleaner renewable energy sources. SA’s commitment to decarbonisation and transitioning to renewable energy is driven by both environmental concerns and the electricity crisis that the country faces.
Gender-Based violence: A study on the community of Khayelitsha
(University of the Western Cape, 2026) Mfamana, Emihle; Van Marle, Karin
The aim of this study is to investigate the occurrence of Gender-based violence in South Africa, with a specific focus on the township of Khayelitsha. It aims to identify the gaps in our law with regards to GBV laws and policies and to provide recommendations on how we could tackle these issues. It also looks at the current strengthening efforts introduced by government and the Bills that were passed by parliament in 2021 and signed into law in February 2022. The study includes the issue of violence against women, and young girls with a specific focus on the challenges faced by these individuals when reporting and the role of our criminal justice system. The main focus is on the current ongoing cases in the community of Khayelitsha.
Cinema, cultural diversity and the globalization process
(University of the Western Cape, 2007) Vincent, Berenice; Wandrag, Riekie
Film making is an industry, but also an art'. As such. it expresses values, contents and ways of life which are part of a cultural identity. It also reflects the diversity of creativity through different countries and societies. This creativity needs to be supported because of the threat of a world becoming more and more standardized. The support of diversity in cinema is for example realized through subsidies given to original works that would otherwise not exist without such a financial aid.
An examination of the extent to which South Africa is meeting its legal obligations with regard to the protection of undocumented foreign migrant children
(Univesity of the Western Cape, 2005) van der Burg, Anthea; Sloth-Nielsen, Julia
Undocumented foreign migrant children suffer from xenophobia, detention, deportation and abuse at the hands of South African government officials. The South African Constitution guarantees the rights of equality, humanity, dignity and non-discrimination to 'everyone' in South Africa. Section 28 of the Constitution is dedicated to children's rights and has effectively succeeded in domesticating the substance of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. South Africa has however failed in adequately domesticating the international legal provisions which protect the rights of undocumented foreign migrant children in national legislation. This thesis examines the extent to which South Africa has domesticated the international provisions protecting this group of children. The thesis further investigates procedural gaps and makes recommendations in respect of law and procedure to ensure the adequate protection of the rights of undocumented foreign migrant children in South Africa.
A critical legal perspective on seismic explorations in light of south africa’s just energy transition
(University of the Western Cape, 2025-07-31) Mathabatha, Mahlodi; Steenkamp, Rochine Melandri
South Africa is a signatory to international agreements such as the Paris Agreement 2015, and has adopted a Climate Change Act 22 of 2024 and submitted revised Nationally Determined Contributions (NDC), committing itself to just energy transition (JET) objectives and giving meaningful effect to human rights in decision-making. However, a disjuncture exists between these commitments and the governance of energy resources. This is concerning considering that South Africa is in the top 15 of the biggest GHG emitters in the world and with the energy sector being one of the biggest sources of these emissions. Seismic explorations raise concerns about cumulative ecological risk, livelihoods of fishing communities, coastal cultural and traditional practices, and the distribution of burdens and benefits for communities already affected by energy poverty. In light of this, this study assesses to what extent the approval of offshore seismic exploration rights aligns with South Africa’s international and domestic climate change commitments within the context of the just energy transition (JET).
Growing without poverty: The role of good governance and pro-poor growth in the realisation of socio-economic rights and human development in Africa
(University of the Western Cape, 2008) Ogbonna Hilary; Dr Chenwi Lilian
The idea of good governance has always occupied the discussions of public administrators, civil society and the development as well as aid communities. As a concept, good governance became popular as a response to the failures occasioned by the Structural Adjustment Programmes (SAP) of the 1980s. It however gained grounds with the disruption of constitutional orders in most African and developing countries in the late 1980s and early 1990s. In its traditional sense, good governance is usually used with particular reference to political governance. In this guise, it is related to such concepts as democracy, participation, human rights, rule of law and transparency, amongst others. Good governance ensures that political authorities and institutions are accountable to the guarantee of all human rights because all rights are universal, interdependent, interrelated and indivisible as enunciated by the Vienna Declaration+ It also means that traditionally marginalised rights like economic, social and cultural rights be given maximum attention in the design and implementation of economic policies.
Provincial intervention in local municipalities: the case of South Africa
(University of the Western Cape, 2025) Qonongo, Nomxolisi Stella; Fessha, Yonatan
The thesis examines provincial interventions in South African local governments by focusing on Section 139 of the Constitution, which allows provincial governments to intervene when local councils fail to meet certain executive obligations, particularly those related to service delivery and financial management. While South Africa’s Constitution grants autonomy to local municipalities, it simultaneously permits provincial intervention under specific conditions. This brings to light an inherent tension between empowering local governments on the one hand and ensuring accountability and effective governance on the other. The thesis argues that this balance – meant to facilitate oversight without undermining local governance – has been inconsistently managed, resulting in interventions that may, in some cases, encroach on local government autonomy.
Domestic implementation of the Rome statute of the international criminal court: a South African perspective
(University of the Western Cape, 2025) Daniels, Lucille Joy; Mushoriwa, Linda
This mini thesis examines the domestic implementation of the Rome Statute of the International Criminal Court from a South African perspective. It examines South Africa’s Implementation of the Rome Statute of the International Criminal Court Act (ICC Act) which came into effect on 16 August 2002 and highlights the challenges related to the implementation of this Act; within the context of immunity of heads of state. It also draws a comparison between the ICC Act and the International Crimes Act of Kenya and the International Criminal Court Act of Uganda. It is argued that even though an African Union/International Criminal Court tension exists, South Africa has through various means recommitted itself to its international obligations as a State Party to the Rome Statute.
The role and functions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) in land reform in South Africa
(University of the Western Cape, 2004) Oliphant Laetitia; de Ville Jacques; Mostert Hanri
In this minithesis, I set out to determine the degree to which the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) is in line with the objectives of South Africa's land reform policy with regard to the promotion of access to land and security of tenure, and to determine to which extent the Act has contributed to land reform. A brief historical overview of South African land law is provided in order to indicate the reasons for enacting PIE. Current land policy is then described to establish the extent to which the Act is in line with the objectives of land reform and its constitutive components. The motivation giving rise to the enactment of PIE is analysed in more detail by setting out the objectives of the Act and the basic procedure prescribed for eviction under the Act. The flaws identified in the Act are analysed with reference to case law. The Act along with the proposedamendments are then systematically compared to the objectives ofthe land reform policy. Conflicting views regarding the place of PIE in the land reform system gave rise to the present investigation. As the Act has its roots in section 26(3) of the Constitution, it has been linked to the right of access to adequate housing, which has led to the interpretation that it was a means of effecting land reform. It is evident from the investigation that the Act was intended too further purposes of land reform. However, the interpretation of the Act by the courts supports the notion of employing the Act as a means of effecting broader social reform. I argue that the Act makes a limited contribution to effecting the right of access to adequate housing. In terms of ensuring security of tenure, however, the Act plays a pivotal role in the prevention of arbitrary evictions. This minithesis is concluded with a description of the implications of this investigation.
The decriminalisation of prostitution in South Africa: towards a legal framework
(University of the Western Cape, 2010) Rhoda, Gary
This mini-thesis seeks to provide a substantiation for the need for a new legal framework for South Africa in order to address prostitution. It will argue that the current legal framework has failed in its desired aims and in addressing prostitution effectively. It will begin by explaining the connection between prostitution and human rights in order to establish the basis from which to proceed in an attempt to legislatively address prostitution. It maintains that whatever legislative framework is adopted, it needs to be entrenched in a human rights approach to prostitution. The international and domestic legal framework that currently governs prostitution will be unpacked. In terms of the international legal framework, this mini-thesis establishes that the international legal framework proceeds from the presumption for the need for total criminalisation of prostitution to the presumption of choice of legislative answer to prostitution. The legislative framework is entrenched in the acceptance that all forms of forced prostitution should be eradicated. Moreover, it finds that the current domestic legal framework, which criminalises prostitution, is insufficient in meeting its desired aims. This mini-thesis critically analyses the underlying reasons for prostitution in South Africa and discovers that it is influenced by a myriad of interrelated factors. The current level of poverty and the prevailing socio-economic paradigm in South Africa have contributed to its complex nature. The demand for prostitution acts as a catalyst for both the further exploitation of prostitutes and women, while making them vulnerable to sexually transmitted diseases. I establish that criminalisation alone is not sufficient to address prostitution, especially given the HIV/AIDS epidemic. The current judicial discourse on prostitution is critically analysed and it is found that it entrenches stereotypical notions of gender and sexual roles in South Africa. Even in the Constitutional Court, these notions form part of judicial decision-making. As such, judicial decisions have highlighted the need for a human rights approach to prostitution that is victim -centred.
Safeguard dilemmas: The need for practical special and differential treatment for developing countries
(University of the Western Cape, 2006) Lebero, Karugarama Richard
Safeguards are among the most controversial of all trade remedies, due to the fact that they are contrary to the general principles of international fair trade as articulated in the various agreements governing the relationship between Members of the World Trade Organisation (WTO). To illustrate this point: the decision by Member states to implement safeguards has in the past, and still is, severely criticised by the standing Appellate Body, the highest dispute settlement arena of the WTO. Thus, developing countries, least developed countries (LDC), South Africa, and other Sub-Saharan African countries, are hard-pressed to deploy and consider safeguards as an option, even in bona fide instances where these remedies are consistent with underlying trade and legal theory, considered together with the WTO rules. While pressure groups often seek to exert influence on governments to invoke safeguard measures for political and economic reasons, governments are seldom prepared to do so in light of the controversy surrounding safeguards and the strict interpretation thereof under the WTO structures.
Critical overview of the application of the default system in South Africa's matrimonial property regimes
(University of the Western Cape, 2010) Jassiem, Mogammad Shamiel; Gallinetti, Jacqueline
Equality, human dignity and freedom are the bedrock on which the South African democracy stands firm. The Constitution outlaws unfair discrimination and guarantees every person in this country equality before the law and the right to the equal protection and benefit of the law. But equality cannot, and does not, mean only equality on paper or in theory. That is simply not good enough. Promoting and achieving equality- and, indeed, the other human rights protected in the Bill of Rights- requires an acute awareness of the lived realities of people's lives. One of these realities is that many people in South Africa are unable to enforce their legal rights because they do not know what these rights are, what they mean in practice and how to protect them. The South African Constitution' provides that everyone is equal before the law and has the right to equal protection and benefit of the law.' Section 9(3) provides that everyone has the right not to be unfairly discriminated against on the grounds of race, gender, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age disability, religion, conscience belief, culture, language and birth.4 Statutes have been adopted, limited and extended to ensure that the laws align with the rights entrenched in the Bill of Rights of the Constitution.
Towards low carbon public transport in South Africa: a critical legal analysis of the City of Johannesburg’s local environmental governance instruments
(University of the Western Cape, 2025) Awadh, Aaliyah
The transport industry is responsible for a large portion of carbon emissions globally. The transition towards low carbon public transportation, is thus crucial, in order to limit emissions and prevent the detrimental effects of climate change on the environment as well as on human health and wellbeing. In South Africa, the need for low carbon public transport is driven by environmental concerns and the increasing need for reliable and affordable transport services and improved transport infrastructure in cities. Despite this, there are multiple obstacles within the current legal framework preventing the realisation of a low carbon transport system in South Africa, and more specifically in the City of Johannesburg which this study focuses on. Legal governance is fundamental in promoting the movement towards low carbon public transport with municipalities being one of the most important role players in guiding cities towards this goal. However, the legal and policy framework governing low carbon transport is fragmented and does not allow for a coordinated effort in implementing and enforcing low carbon transport plans and policies. In addition to this, obstacles such as the reliance on coal, limited financial resources, a lack of cooperation from public transport providers and a transport infrastructure built to enforce Apartheid’s segregation policies, have made it extremely challenging to comply with the legal obligations to move towards low carbon transport in South Africa. This research analyses the legal and policy gaps in relation to low carbon public transport. It looks at how municipalities, and specifically the City of Johannesburg, are using the current legal framework and policies to move towards low carbon public transport and how the use of Local Environmental Governance (LEG) instruments, such as market based commuter influences and carbon tax, can further assist in reaching these goals. The research will examine low carbon transport laws including section 24 of The Constitution of the Republic of South Africa, the National Environmental Management Act and the Climate Change Act which are the basis for environmental management in South Africa and extend to the transport sector.
Child marriage in Nigeria: a legal analysis of domestic laws and customary practices in relation to international human rights standards
(University of the Western Cape, 2026) Akanbi, Favour Funke
This study examines the persistence of child marriage in Nigeria by analysing how the country’s domestic laws and customary practices align with, or fall short of, international human rights standards. The research focuses on the tension between Nigeria’s international obligations and its plural legal system, which consists of statutory, customary, and religious laws. Although Nigeria has ratified key instruments such as the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, and the African Charter on the Rights and Welfare of the Child, the practice of child marriage remains widespread in several parts of the country. This study employs a qualitative research approach based on desktop research. It analyses legislation, constitutional provisions, case law, and international treaties to identify inconsistencies and gaps that weaken protection for girls. The findings reveal that while the Child Rights Act of 2003 prohibits marriage under the age of eighteen, other laws, including the Constitution, contain provisions that create uncertainty. Section 29(4)(b) of the Constitution, for instance, indirectly recognises adulthood through marriage, thereby undermining the intent of the Child Rights Act. The research also considers the influence of cultural norms, poverty, gender inequality, and limited access to education, which continue to drive the practice despite existing legal safeguards. It finds that the coexistence of multiple legal systems and the uneven domestication and implementation of the Child Rights Act have contributed to weak enforcement and uneven protection for girls across the country. The study concludes that eliminating child marriage in Nigeria requires both legal and social reform. It recommends harmonising national and state laws on the minimum age of marriage, ensuring the full domestication and implementation of the Child Rights Act, and strengthening institutional mechanisms to improve enforcement. It further emphasises the need for public awareness, education, and collaboration among traditional leaders, faith-based organisations, policymakers, parents and children themselves, and other stakeholders, to promote the rights and empowerment of girls.
Access to adequate housing in South Africa: a critical analysis
(University of the Western Cape, 2025) Mkula, Sithembile
Access to adequate housing remains a pressing socio-economic right in post-apartheid South Africa, with millions residing in informal settlements under precarious conditions. This study explores the legislative and policy framework relating to the in situ upgrading of informal settlements, and how the human rights of those living in informal settlements are affected. It also considers the roles of the branches of government in ensuring thein situ upgrading of informal settlements. Employing a desktop research methodology, the analysis draws on legislation, policy frameworks (notably the Upgrading of Informal Settlements Programme). The findings suggest that, while courts have recognised a justiciable obligation on the state to progressively realise access to adequate housing, their willingness to issue structural orders mandating specific forms of compliance, such as the upgrading of informal settlements, depends on the reasonableness of state conduct. In addition, contextual considerations are critical, and eviction must be the last resort. The study concludes that judicial intervention, though cautious, can serve as a crucial mechanism in enforcing housing rights, particularly where state inaction or inadequate policy implementation undermines constitutional commitments.
Silent suffering: the violation of women’s human rights during childbirth in South Africa
(University of the Western Cape, 2025) Pearson, Vivan Lizaan
Obstetric Violence (OV), an unrecognised and widespread type of gender-based violence (GBV), occurs when a woman's basic human rights are violated while she gives birth. This dissertation looks at OV in the South African context and how it developed from the discrimination and segregation brought about by colonialism and apartheid, and how this has created a health care system that still negatively impacts maternal health today. OV can occur in several different ways, including through physical abuse, verbal abuse, neglect, and through non-consensual medical treatment such as forced sterilization. Marginalized groups such as coloured women, lower socio-economic status women, and women living with HIV/AIDS are most affected by OV. This dissertation also identifies that OV violates many rights under the South African Constitution and other international and regional human rights instruments. International and regional frameworks like CEDAW (Convention on the Elimination of All Forms of Discrimination against Women) and the Maputo Protocol provide a basis for states to be held accountable for the actions of their state (and non-state) actors. This dissertation also reviews the legislative developments in some Latin American countries that have criminalized OV. This dissertation makes recommendations for a multifaceted strategy to address OV, and these include legislative reform, raising awareness of OV among the general population, providing comprehensive education and training to all persons who will provide health care services to pregnant women, as well as creating effective mechanisms for complaints to be filed and for accountability to exist. This dissertation also identifies further research as being necessary to better understand the extent to which OV exists and the effects of OV on women over time, and to determine whether the interventions identified in this dissertation were/are successful in preventing OV.
An analysis of the South African legal framework in relation to health risk mitigation in the mining sector
(2025) Mooko, Gosego
The extraction of mineral resources forms the bedrock of South Africa’s economy, contributing to employment, the country’s GDP and overall socio-economic development. And yet, this extraction has substantial environmental and human health costs. Over the years, South Africa has built a comprehensive legislative framework regulating environmental management, the exploitation of mineral and petroleum resources and the industry’s occupational health and safety standards. Nonetheless, the mining industry continues to expose employees to risks and hazardous conditions exceeding the occupational exposure limits. This demonstrates how the South African mining industry often prioritises production over health risk mitigation measures, leading to a high prevalence of occupational illnesses and unfavourable working Conditions. This study analyses the existing corpus of environmental and mining legislation to determine the extent to which it addresses health risk mitigation within South Africa’s mining industry.
The Universal Periodic Review (UPR) mechanism: Any Imperative for participation therein and the implementation of its recommendations by the South African Parliament’s Portfolio Committee on Justice and Constitutional Development (PCJ&CD)?
(University of the Western Cape, 2026) Molo, Mkhululi Patrick
Despite being marginalised for years within international human rights law, the UN recently acknowledged the significant role that national parliaments can play in the international human rights framework, particularly through the Human Rights Council's Universal Periodic Review mechanism. Established in 2006, the Universal Periodic Review mechanism aims to assess adherence to and implementation of international human rights standards across all UN member states, with the goal of ensuring rights realisation at the national level. While the mechanism is primarily driven by UN member states, it allows for the participation of all relevant stakeholders, including national parliaments, to address the implementation gaps identified in its recommendations. In democratic societies, national parliaments, with their legislative and oversight functions, are regarded as the guardians of human rights and are better positioned to ensure State compliance with, and implementation of, the recommendations from UN human rights mechanisms, including the Universal Periodic Review. However, many national parliaments around the world, with few exceptions, remain largely disengaged from international human rights matters, including the Universal Periodic Review mechanism and the implementation of its recommendations at the national level. Consequently, this study investigates the extent to which the South African Parliament, specifically its Portfolio Committee on Justice and Constitutional Development, has promoted and protected human rights through its involvement with the Universal Periodic Review mechanism and the implementation of its recommendations concerning South Africa’s human rights situation. The Portfolio Committee on Justice and Constitutional Development is a South African Parliament committee that is constitutionally mandated to scrutinise and oversee government actions, particularly those of the Department of Justice and Constitutional Development, while also promoting and protecting human dignity, equality, and freedom. This study is particularly relevant in the context of the Universal Periodic Review mechanism, where the participation of a national parliament is crucial, possessing the potential to address implementation deficiencies and reinforce the country’s commitment to upholding human rights standards. To explore the research topic, the study adopts a qualitative approach, reviewing existing research and various documents, including UN resolutions, the Draft Principles on Parliaments and Human Rights, toolkits on parliaments and human rights, the South African Constitution of 1996, official reports from the South African Parliament, the Parliamentary Monitoring Group, and the UPR.Info website. The study also considers the participation of parliaments from other jurisdictions in the UPR mechanism, not for comparative analysis, but to gain valuable insights. Through this analysis, the study aims to identify both opportunities and challenges regarding the official role of South African parliaments, particularly the PCJ&CD, within international human rights frameworks such as the UPR mechanism. The study concludes with practical recommendations aimed at enhancing the engagement of the South African Parliament and its PCJ&CD in the UPR process and the implementation of its recommendations at the national level.

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