Magister Philosophiae - MPhil (Law)

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An analysis of the position of Muslim widowed women within a South African context
(University of the Western Cape, 2025) Mallick, Imrah
The position of a widowed Muslim woman in South Africa has been a topic of discussion for more than 25 years, particularly concerning maintenance and her right to inherit from the estate of her deceased husband in terms of South African laws governing maintenance and succession. Historically, a widow subject to a marriage concluded in terms of Islamic law only (Islamic marriage) albeit monogamous or polygynous was not recognised for, inter alia, the purposes of South African laws governing maintenance and succession. A widow that was subject to an Islamic marriage could not, for example, claim from the intestate estate of her deceased husband as she was not recognised as a spouse for purposes of the Intestate Succession Act. The status has since changed. Recent case law developments have led to the recognition of certain aspects of Islamic marriages within South African legal provisions, specifically concerning the rights to claim maintenance and inheritance from the estates of deceased spouses. It is important to note that South African and Islamic laws governing maintenance and succession differ significantly. This research paper introduces a comparative analysis of these legal frameworks, focusing on the provisions for widows under both Islamic and South African law. This would include a discussion on the rationale behind the Islamic laws governing the maintenance and succession in this regard. It further analyses the developments in the recognition of Islamic marriages for purposes of maintenance and succession (testate and intestate) within the South African context to give effect to Islamic law. Recent developments in case law will be looked at in this regard. This research paper also extends a comparative analysis to Singapore, where Islamic law is formally recognised under the Administration of Muslim Law Act (AMLA). Singapore provides a structured legal framework for Muslim inheritance and maintenance, offering a contrast to South African law’s case-based approach. By analysing South African, Islamic, and Singaporean legal systems, this research paper highlights key differences in the recognition and protection of Muslim widows. The research paper concludes with an overall analysis of the findings and offer recommendations for future legal reform.
An analysis of South Africa’s efforts to realize the right to basic education in light of Covid-19
(University of the Western Cape, 2024) Macekiswana, Sanele
This study is an analysis of South Africa’s efforts toward ensuring the realisation of the right to basic education during the Covid-19 pandemic. In South Africa, the Covid-19 pandemic presented unprecedented challenges which intensified the existing inequalities that are threatening the realisation of the right to basic education for many young South Africans. During the Covid-19 pandemic, the shift from physical school attendance to online learning was one of the remarkable challenges that the basic education system failed to address due to a number of challenges such as lack of access to internet and technology in many South African schools. As a result, millions of young South Africans were left behind and their right to basic education was violated. Therefore, for the South African government to be still facing such challenges after 30 years of democracy shows a lack of commitment to protecting the right to basic education that is entrenched in our constitution.
A mini-thesis submitted in partial fulfilment of the requirements for the degree of Master of Laws (LLM) in International Trade, Investment and Business Law
(University of the Western Cape, 2024) Salum, Hamisi S
The global trade landscape has seen increased interdependence among countries, leading to increased bilateral relations. This has underscored the necessity for an entity to oversee and regulate countries' trade activities. As a result, the World Trade Organisation WTO was established in 1994, superseding the General Agreement on Tariffs and Trade (GATT) formed in 1947 during the Uruguay Round the WTO governs global trade with a membership of over 164 since 29 July 2016,1 the WTO facilitates smooth trade by eliminating barriers and promoting import and export agreements between nations. The GATT 1994 permits members to establish Preferential Trade Agreements (PTAs), such as customs unions and free-trade areas, as an exception to the principle of non-discrimination.2 In pursuit of fair trade, WTO members introduced the concept of anti-dumping, countervailing and the safeguard measures.3 Together, these measures, known as trade remedies, were implemented during the Uruguay Round. The WTO safely regulate the use of these trade remedies through the Agreement on Anti-Dumping and Countervailing, Subsidies, and Safeguard agreements. Therefore, within the context of trade liberalisation, industries may be susceptible to unfair trade practices or heightened competition from imported goods, potentially resulting in detrimental effects on domestic businesses, industries and market, thus, trade remedies serve as pivotal tools utilised by governments to intervene strategically, aiming to safeguard employment opportunities and stimulate investments within the economy.
Potential risks of Money Laundering and Terrorist Financing in SADC’s Informal Cross-Border Trade – A South African perspective
(University of the Western Cape, 2024) Mtatase, Sibusiso
The Southern African Development Community (SADC) is known for its emerging economies that are largely dominated by a significant number of Informal Cross-Border Trade (ICTB) activities. 1 These activities play a pivotal role in regional trade and international mobility, and they represent an important aspect of the economy. The SADC is an inter-governmental organization headquartered in Gaborone, Botswana, comprising 16 Member States.2 These Member States are Angola, Botswana, Comoros, the Democratic Republic of Congo, Eswatini, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Tanzania, Zambia, and Zimbabwe.3 The objectives of the SADC are to achieve economic development, peace, and security, as well as to promote growth, alleviate poverty, and enhance the living standards and quality of life of the people of Southern Africa.4 Additionally, the SADC aims to support the socially disadvantaged through regional integration.5 In 2011 the SADC recognised money laundering and terrorist financing as a priority crime and promulgated Annex 12 (Anti-Money Laundering (AML)) to its Protocol on Finance and Investment (hereafter referred to as Annex 12). The SADC Annex 12’s objectives are to facilitate the joining of anti-money laundering and combating of financing of terrorism policies, laws, and regulatory practices of its Member States, within the framework of the Financial Action Task Force (FATF) Recommendations.6 Annex 12’s aim is to further support an effective and proportional action against money laundering and the financing of terrorism in the SADC region.
The enforcement of the Palestinian right to self-determination: an examination of third state obligations and countermeasures
(University of the Western Cape, 2024) Jaffer, Zameer
The enforcement of the Palestinian people's right to self-determination has been a longstanding issue on the United Nations agenda. While self-determination is universally recognised as a foundational principle of international law, the Palestinian claim to this right has been persistently obstructed, most notably by Israel’s breach of peremptory norms of general international law, including: the violation of human rights and humanitarian law; the prohibition of acquisition of territory by force; and the prohibition of racial discrimination and apartheid. This study interrogates whether states not directly injured by the denial of the Palestinian right self-determination, have a right to resort to countermeasures against Israel. The jus cogens nature of self-determination, triggers erga omnes obligations, suggesting that all states share a collective interest in enforcing compliance with jus cogens norms. However, enforcement has been hindered by the structural weaknesses of the United Nations Security Council. Within this context, the thesis explores the legal framework of decentralised enforcement mechanisms, focusing on their legal basis and customary status. In doing so, this thesis examines the field of state responsibility, offering a critical analysis of whether non- injured states can lawfully adopt countermeasures to end the prolonged occupation and advance the right to self-determination for Palestinians in Gaza, the Occupied Palestinian Territories, and Palestinian refugees worldwide.
Women's Rights in a Changing Climate: An Intersectional Analysis of Climate Change and Gender Inequality in Nigeria.
(University of the Western Cape, 2025) Mashiyi, Vuyiseka Vicky
Climate change disproportionately impacts women, particularly in Nigeria where poverty and deep-rooted gender inequalities intersect. This dissertation explores how climate change affects women's socio-economic rights, through an intersectional feminist and human rights lens. This study examines how social identities like gender, class, and ethnicity shape women’s vulnerabilities and coping mechanisms to climate shocks. And how existing gender gaps exacerbate these challenges. Women's limited access to resources, information, and decision- making power hinders their ability to adapt to climate-induced crises such as droughts, floods, and rising sea levels, leading to increased food insecurity, health risks, and gender-based violence. Employing a human rights framework, this research investigates how climate change exacerbates existing gender inequalities, disproportionately affecting women. Through case studies and policy analysis, the study will explore the multifaceted impacts on women's food security, employment, poverty, and health, including reproductive rights. This thesis advocates for the critical inclusion of women in climate change decision-making processes, arguing that their underrepresentation creates a 'value gap' hindering effective solutions. By examining the intersection of climate change and gender inequality in Nigeria, this research investigates the disproportionate impacts on women, including increased vulnerability to food insecurity, health risks, and gender-based violence. It further explores the link between climate-induced displacement and the rise in gender-based violence. Ultimately, this research aims to contribute to building a more just and equitable future for women facing the consequences of climate change.
Covid-19 and the right to social security for self-employed and informal workers in South Africa
(University of the Western Cape, 2025) Le-Ann Cupido
The year 2020 brought the world to a standstill when the Covid-19 pandemic was declared. Like in many other nations all over the world, one of the most drastic forms of intervention was the implementation of a national lockdown within South Africa. This in essence meant that all nonessential places of work were closed for business. As a result of this lockdown, those in the informal and self-employed economy found themselves unable to work and unable to gain an income. Job and income losses also occurred within the formal economy; however, an important distinction is that those within the informal economy had no protection under the available social security framework. The South African Government put measures in place to assist those impacted by the severity of the Covid-19 pandemic, however it was found that those measures were based on the existing social security framework that inherently disadvantaged those in the informal and self-employed economy. There are various international and regional instruments that are in support of extending social protection to the informal and self-employed economy. During the Covid-19 pandemic, the vulnerabilities of those in the informal and self-employed economy were exacerbated as they found themselves unable to provide for the basic needs of themselves and their families and as a result suffered the most. This study therefore focuses on the need to extend the right to social security towards the informal and self-employed economy.
Access to electricity within the South African Legal and Constitutional Context: lessons to be learnt from the Netherlands
(University of the Western Cape, 2025) Boer, Ketra Rae
The provision of electricity is essential for the promotion of healthcare, employment, food production and educational outcomes. The right to access electricity forms the basis of quality to life and various other rights. The ability of people to receive education, communication between people and the process of preparing food is impacted by access to electricity. 1 South Africa implemented load shedding to maintain the integrity of the electric grid and prevent further grid failure.2 South Africa has, however, coined the term ‘load shedding’ and defined it as ‘planned rolling blackouts based on a rotating schedule in a period where short supply threatens the integrity of the grid.’3 This implementation was the consequence of the failure to build new power stations which would keep up the economic growth and phase out older power plants.4 However the frequency of this load shedding has led to the current electricity crisis in South Africa. The frequency of load shedding has become a highly political and ideological topic due to its impact on various sectors of the economy.5 Load shedding is defined as the deliberate shutdown of electric power in a part of a power-distributing system, generally to prevent failure of the entire system when the demand strains the capacity of the system.6 There have been various factors which has heightened the discussion around the electricity crisis in South Africa. Politics and corruption have been noted as a big issue in the power sector of other African countries and now South Africa has also become one of these countries.
Justifications for the use of force under contemporary international law - the Nato air strikes in Kosovo
(University of the Western Cape, 2000) von Kurnatowski, Berit; Philippe, Xavier
The history of the territory known for the better part of the 20th century as Yugoslavia is a history of trying to amalgamate what nature seems determined to fragment - to "balkanise." Modern Yugoslavia arose after World War I from the ashes of millennia empire. Neither empire ever exerted full control over the various ethnic and national groups in the Balkans: during the Middle Ages both Serbia and Bulgaria dominated large portions of the Balkan land mass; Croatians, Albanians and Bosnians all had relatively short-lived states. After World War I, the Allies created the Kingdom of the Serbs, Croats and Slovenes, uniting all of the Serb population of the area in a single state. Yugoslavia was one of the most concrete manifestations of President Woodrow Wilson's vision of bringing ' democracy and self-determination to Europe. Tito's C_ommunist state, which evolved after World War II in 1944, was built as a federatiqn with six republics: Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. The internal borders (which remained until the country's breakup in 1991) did not attempt to consolidate populations along ethnic lines; indeed, it ap'peared that Tito (a Croat) intentionally sought to limit the Serb's clout by the way he drew the administrative divis;ons. Thus the borders of Serbia did not embrace all areas with large Serb populations; Bosnia, Croatia and Kosovo contain large Serb enclaves·. At least in theory, most of the Slavs who lived in the first two Yugoslav states - the I original one created in 1918, and the communist one born in 1944 - had freely opted to join "the land of the Slavs". But not the Kosovo-Albanians, who are not Slavs, do I not spea~ a Slavic language, and are mostly Muslim by religion. Yet in 1914 Kosovo nevertheless became part of Yugoslavia by virtue of the fact, that during the Balkan vyars of 1912, ~erbia had re-conquered this territory which, for more than 500 years, had been part of the Ottoman empire.
The use of groundwater as an option for the realization of the right of access to basic water and sanitation in South Africa
(University of the Western Cape, 2004) Mgawuli, Zuko Aubrey; van Reenen, T. P.
The most contentious issue in the present South African Constitution is the realization of the rights entrenched therein. These rights are contentious because they are justifiable in their nature, subject to judicial processes and courts have in many cases interpreted them to impose positive and negative duties against the state. Positive duty means that it is the state responsibility to ensure that at least something is done (positively) in the realization thereo1 and negative duty means that the state must refrain from obstructing the functioning of the right. It is often argued against the realization of the rights that the state has limited resources to put rights in reality because for the rights to be realized they require pumping in of resources. In the discussions of the right to sufficient water and sanitation on which this paper is focusing, various factors make this right a little difficult to be realized. These factors include amongst others the scarcity of water resources in the country and the tension between human and environmental needs in the resource utilization.
An accused's rights of access to police dockets for bail hearings
(University of the Western Cape, 1998) Madotyeni, Zola Cedric Neville; Steytler, Nicolaas
Bail has always been a controversial and contentious topic m constitutional debate. The sensational coverage by the media of the failure by the criminal justice system to make use of the existing resources in preventing the pre-mature release of dangerous criminals, has led to public outrage and for the members of the public to blame the Constitution for the failure of the criminal justice system to keep criminals in custody.3 The criminal justice system found it difficult to deal with the new challenges brought in by the new constitutional order.
The right to privacy and the challenge of modern cell phone technology
(University of the Western Cape, 2004) Hamman, Abraham John; Steytler, Nicolaas
Privacy has been defined as a state in which one is not observed or disturbed by others and to have freedom from public attention. A person's right to privacy entails that such a person should have control over his or her personal information and should be able to conduct his or her personal affairs relatively free from unwanted intrusions. The right to privacy has been included in the Constitution of the Republic of South Africa, Act 108 of 1996. The inclusion of the right to privacy in the Bill of Rights as a Fundamental right illustrates how important this right is regarded.
The debate on sexual minority rights in Africa: A comparative analysis of the situation in South Africa, Uganda, Malawi and Botswana'
(University of the Western Cape, 2010) Ako, Ernest Yaw; Van Der Poll, Letitia
Gays, lesbians,2 and laws that criminalise homosexuality3 in Africa have been the subject of heated public debate in recent times.a Criminalisation and attempts at re-criminalisation of homosexuality in some African countries have generated a lot of debate on the issue.s The central theme in these debates has been the justification and maintenance of sodomy laws, as against the argument for the repeal of these laws because it violates the rights of gays and lesbians. According to Human Rights Watch, more than 80 countries in the world criminalise consensual same sex sexual activity between adults in private.6 lt is estimated that there are about 38 countries that criminalise homosexuality in Africa, accounting for almost half of the countries that criminalise homosexuality in the world. The sodomy laws in many African countries were inherited from the colonial masters of these countries.s The provisions in the Penal Codes of Botswana,e Malawilo and Uganda" were inherited from the British, who colonised these countries. Uganda has made attempts at re-criminalising homosexuality with the death penalty as the maximum penalty for'aggravated homosexuality'.12 The ramifications of these sodomy laws for the rights of gays and lesbians in Africa have been very grave. Gays and lesbians in Africa have been subjected to hate speech, harassed by police and civilians, physically assaulted; and in some instances remanded in prison custody for indefinite periods, convicted, or even murdered.lt Even after their deaths, there is still violence against sexual minorities.la Separate considerations or a combination of them may motivate the verbal and physical attacks on gays and lesbians, but it is submitted that even though the non existence of sodomy laws in a country does not guarantee the protection of sexual minority rights, the existence of sodomy laws embolden'perpetrators' to launch these attacks. As stated earlier, there are two diametrically opposed view points on the debate. One school of thought thinks that homosexuality should be criminalised and supports sodomy laws. Some even think that the current sodomy laws that exist in their countries are not punitive enough and support calls for re-criminalisation of homosexuality.ls The other school of thought maintains that sodomy laws violate the rights of sexual minorities and are a violation of the international obligations of countries that maintain these laws.' Four countries have been selected as the focus of this study. Malawi, Uganda, and Botswana have a colonial inheritance of sodomy lawsl7 that have generated some debate for varied reasons. Botswana and Malawi have invoked their laws in cases before their courts.'8 Uganda has made attempts at re criminalising its 'sodomy' laws and has also attracted some amount of debate. These countries are not the only 'hot spots' of the homosexual debate in Africa, but they are examples of recent developments that offer an interesting insight into the debate. South Africa is the fourth country. lt brings an interesting aspect to the debate as well, which may be of relevance to contrast with what pertains in the three other countries above. South Africa recognises the rights of sexual minorities and offers them protection in its constitution.le South Africa's history, which is different from that of the three countries, may have informed this situation, but the interest in South Africa is not so much of its history but the comprehensive jurisprudence and debate it has generated over the years.2o This study makes no pretence at settling this debate but hopes to contribute to it by unpacking the arguments of both sides in the light of international human rights law, and makes suggestions on the way forward.
The exceptions to patent rights under the WTO-TRIPS agreement : where is the right to health guaranteed?
(University of the Western Cape, 2002) Mugambe, Lydia; Wandrag, Riekie
Health as the world affirmed in the Universal Declaration of Human Rights more than fifty years ago, is a fundamental human right and an indispensable component of development under any economic policy model.2 Poverty in families and nations produces poor health and the links also go the other way, failure to invest in good health will undermine even the best-laid development plans. Protection of the right to health is important as a prerequisite for the right to life. lt is therefore imperative that as the world turns into a global market and village, the essence of human existence is not forgotten. There is a need to strike a clear and meaningful balance between profit and human wellbeing with greater consideration for life without which, the profit motive is itself futile. The scale of the AIDS crisis now outstrips even the worst-case scenarios of a decade ago.3 AIDS has reached pandemic proportions. Described by the United Nations General Assembly Special Session on HIV/AIDS (UNGASS) as a "global emergency"on account of its sheer scale and impact, AIDS is recognised as a formidable threat to human life, dignity and the enjoyment of fundamental human rights.a Dozens of countries are already in the grip of serious HIV/AIDS epidemics, and many more are on the brink. Around the world, an estimated five million people became infected in 2OO1,8OO,OOO of them children. Over the next decade, without effective treatment and care, they will join the ranks of the more than twenty million people who have died of AIDS since the first clinical evidence of HIV/AIDS was reported in 1981.
A reevaluation on international law and policy related to the quantification of environmental harm
(University of the Western Cape, 2003) Peter, Lulamile Lester; van Reenen, T.P
The doctrine of quantification of environmental damage is one of the most highly contested aspects of international law and also national policy. In the context of environmental law, there are various questions that are related to the quantification of damage, which are still uncertain and unresolved.' These questions are commonly found in environmental cases dealing with toxic-liability litigation.2 This kind of litigation is related to damage caused by production and handling of hazardous materials such as asbestos. The questions of causation, liability and that of unclear methods of calculating damage are hallmark problems in international environmental law.
An analysis of the expanded mandate of local government under Covid-19
(University of the Western Cape, 2021) Tanale, Buchule; Chigwata, Tinashe
The Constitution places municipalities at the forefront of service delivery in South Africa. This can be discovered from a perusal of section 152(1)(b) of the Constitution, which provides that one of the objects of local government is to ensure the provision of services to communities in a sustainable manner.1 The Constitution further envisages local government as a driver of development at the local level. This is evident when reading section 153(a) of the Constitution, which states that, over and above the prioritisation of the basic needs of communities, municipalities must promote social and economic development of the community.
From Yugoslavia to Sierra Leone: advantages and shortcomings of the ad-hoc tribunals and the hybrid courts
(University of the Western Cape, 2004) Geigenmüller, Jan; Sarkin, J. J
In this Mini thesis, I compare the advantages of the hybrid courts with the international ad-hoc tribunals, arguing that the potential of the hybrid courts to work successfully is much greater than that of the ad-hoc tribunals. I present five case studies and provide an overview over the historical background as well as the legal framework for the respective courts. These case studies are the two international ad-hoc tribunals, the Intonational Tribunal for the former Yugoslavia (ICTY) and the one for Rwanda (ICTR), and three hybrid court models, the Special Panels in East Timor, the Special Court in Sierra Leone and the Extraordinary Chambers in Cambodia. I measure the ad-hoc tribunals against their goals in order to evaluate their success and to compare them with the work of the hybrid courts. My findings are that the international ad-hoc tribunals failed to reach their goals of ensuring prosecution and promoting reconciliation (both ICTY and ICTR) and establishing regional stability (ICTR only). I discuss the term "reconciliation" and develop a five-tier model in order to measure whether and to what extent reconciliation has been reached. This model includes a sociological, political, economic and demographic approach as well as an assessment of how the respective societies reckon with their past. I apply this model to the work of the ICTY and the ICTR and state that they were not successful in promoting reconciliation. Furthermore, I describe the contributions of the ICTY and the ICTR to the field of international criminal law and show some legal problems regarding the work of the two finals. Regarding the three hybrid courts, of which two (East Timor and Sierra Leone) are currently operating and one (Cambodia) is yet to be established, I analyse their potential and the problematic aspects. Examining the potential, I enumerate the geographical proximity of the hybrid court, its possibility to contribute to the process of capacity-building for both legal and administrative staff and the chance of increasing the acceptance of international criminal law norms and human rights as well as the trust in the rule of law within the local population. Regarding problematic aspects, I discuss the international perception and legitimacy of the hybrid courts as well as their possibility of contributing to intonational criminal law. I show the problematic funding of the hybrid courts, the struggle to win over the local population, as well as the need for support from both the UN and the national government. I look at the role that hybrid courts can play in future, considering the establishment of the International Criminal Court and how the two bodies could cooperate. I describe the concepts of retributive and restorative justice with the model of a truth commission and how a society which has to deal with massive human rights violations can benefit from the ideas of restorative justice and the combined use of a hybrid court and a truth commission. I conclude the Mini thesis with an outlook of when and how hybrid courts are a suitable measure for a society to reckon with its past.
Collective bargaining, minimum labour standards and regulated flexibility in the South African clothing manufacturing sector: at the level of the national clothing bargaining council's Western Cape sub-chamber
(University of the Western Cape, 2006) Groenwald, Jakobus William; Bolton, P
In the context of a society in which there is an urgent need to create jobs, this research considers, firstly, whether the current labour regulatory environment is flexible enough to allow for an employment scenario that is conducive to job creation. The research then considers what is meant by the policy of 'regulated flexibility' and considers how flexibility operates in practice at NBC level. It is argued that the concept of flexibility is a misnomer - since it creates more problems than it solves. The research concludes with a call for real flexibility that will allow for increased investment and a greater supply of jobs.
The role of digital platforms in promoting cartel competition law enforcement within the AFCFTA: A focus on data privacy
(University of the Western Cape, 2022) Woldeyohannise, Meron Girma; Kondo, Tinashe
Competition law preserves market competitiveness by regulating anti-competitive conduct. Competition law enforcement requires high levels of data transparency and traceability. The traditional method of competition law enforcement, which is based on document review, testimony and economic analysis, is faced with many challenges in the contemporary environment. This is particularly true in the case of cartels, which use many methods to cloak their activities. Similarly, cross-border detection of anti-competitive conduct has also proved elusive. A major reason for this is that large multinational companies use their significant resources to evade detection of their anti-competitive conduct.
The impact of foreign direct investment on the environment: A case study of the mining sector in Congo Brazzaville
(University of the Western Cape, 2023) Dombolo, Bob Hermann; Wandrag, Riekie
The impact of foreign direct investment (FDI), national or local investment on the environment is experienced all around the world. In Indonesia, for instance, multinational companies’ production trends indicate that the FDI flows significantly affect CO2 emissions, which has an impact on environmental degradation.1 In the Niger Delta, the increase in FDI has adverse consequences resulting in high levels of air pollution.2

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