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Xenophobia in South Africa: a socio-legal analysis

- Sibanda, Samukeliso

Authors: Sibanda, Samukeliso
Date: 2011-04
Subjects: Xenophobia -- South Africa
Language: English
Type: Master's theses , text
Identifier: http://hdl.handle.net/10353/25548 , vital:64334
Description: The ways in which xenophobia continues to express itself in South Africa deserve to be noted at an advanced study. Over the past 15 years the expressions of xenophobia have been accompanied by increased deaths, more discrimination, increase of stereotyping of people of African descent and increased violence towards non-nationals, especially in the poorer parts of South Africa. Many of such xenophobic expressions have gone unnoticed and where they have been noticed, they have received little attention, leading to the exacerbation of the problem. The researcher of this study dwelt on a socio-legal analysis of xenophobia in South Africa. Appreciating the legal connotations and the expressions of xenophobia in South African society is a major concern of this study. To fulfill the objectives of this study, the researcher explores the extent and expression of xenophobia, in addition to analyzing and assessing the efficacy of legislative and other measures aimed to protect non-nationals in South Africa. The study investigates the role of state organizations, government and civil society and evaluates the impact of xenophobia on the enjoyment of human rights by non-nationals. A central objective of this study was to suggest alternative ways of explaining and understanding xenophobia and the responses to it. Empirical research was conducted to explore the extent of xenophobia in South Africa and how and why it is manifested in the way it is. Through in-depth face-to-face interviews it was revealed that the extent and manifestation of xenophobia differs in relation to particular communities, economic set ups and social settings; with poor communities being the most vulnerable to violent xenophobic attacks. Further, it was interesting to note that people have no firm understanding of what xenophobia entails as a social, legal, political and economical phenomenon. Again, it became evident that xenophobia still manifests in a country founded on values of equality, dignity and justice. Moreover, it was established that there is a weak link between law, human action and human behavior. It also became evident that education and sensitization need to be employed if xenophobic perceptions and behaviors are to be sufficiently dealt with. Recommendations were provided upon completion of the study. These included developing the law consciously, thus ensuring that the law has public legitimacy; effective law enforcement and prosecution; human rights education and training (especially in government departments, civil society organizations and institutions of learning); use of media and other communication channels to advocate for non discrimination, equality and respect for human rights, values and integration. Finally, the fight against xenophobia, racial discrimination and other related forms of intolerance needs to be taken up by all members of South African society and Africa at large. , Thesis (LLM) -- Faculty of Law, 2011
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Constitutional damages for the infringement of a social assistance right in South Africa are monetary damages in the form of interest a just and equitable remedy for breach of a social assistance right

- Batchelor, Bronwyn Le Ann

Authors: Batchelor, Bronwyn Le Ann
Date: 2011
Subjects: South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:11117 , http://hdl.handle.net/10353/388 , South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
Description: This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores. , National Research Foundation
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The obligation of non-discrimination under the General Agreement on Trade in Services (GATS) and the agreement on Trade-related aspects of Intellectual Property Rights (TRIPS): a developmental perspective

- Bidie, Simphiwe Sincere

Authors: Bidie, Simphiwe Sincere
Date: 2011
Subjects: Food -- Relief -- Law -- Legislation , Food supply -- Law and legislation , Foreign trade regulation
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:11113 , http://hdl.handle.net/10353/338 , Food -- Relief -- Law -- Legislation , Food supply -- Law and legislation , Foreign trade regulation
Description: The non-discrimination obligation has existed since the twelfth century. It has been practiced since then, changing from a conditional to unconditional form with the passage of time. It became firmly applied unconditionally at the multilateral level in 1947 after the formation of the GATT trading system upon which several countries based their trading relations. In 1995 when the WTO was formed, the underlying principles of the GATT 1947 became part of the WTO trading system, including the non-discrimination obligation. When countries join the WTO they automatically become subject to the non-discrimination obligation. The ever increasing value of services and trade in the value of intellectual property has necessitated a look at the fundamental principles of world trade that countries have to adhere to in their trade relations. Incidentally, countries are not at the same level economically, hence one of the purposes of the WTO is to facilitate development in developing countries. Accordingly, this requires different application and/or interpretation of these fundamental principles in different situations, depending on the development level of each Member country. Amongst the five principles that underlie the international trading system, the non-discrimination principle is the focus of this study. The sustainability of the entire economic relations between WTO Member countries is dependent upon their fair compliance with this obligation. The obligation is found in Articles II and XVII of the GATS and Articles 3 and 4 of the TRIPS. The Membership of the WTO is made up of developed and developing countries. As a result of the fundamental nature of the obligation it is imperative that the scope and interpretation of this obligation, as developed by WTO adjudicating bodies, be analysed to determine if the obligation’s application and/or interpretation satisfies the above fundamental object and purpose of the multilateral system of trade. The intention here is at all times to show the importance that the non-discrimination obligation carries in international economic and legal interactions and how non-observance of this obligation would negatively affect relations between Member countries of the WTO.
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International legal protection of women's reproductive rights: a comparative analysis of abortion laws and policies in four jurisdictions-Nigeria, Ghana, South Africa and U.S.A.

- Abiodun, Adeleke Funminiyi

Authors: Abiodun, Adeleke Funminiyi
Date: 2010-10
Subjects: Abortion -- Law and legislation , Reproductive right
Language: English
Type: Doctoral theses , text
Identifier: http://hdl.handle.net/10353/25839 , vital:64491
Description: The subject matter of abortion law is extremely broad and multi-disciplinary. While naturally having its basis in criminal and constitutional law of individual states, the global development of abortion discourse has been influenced by the need to protect the reproductive rights of women as a sub-set of international human rights laws; thereby advocating not only the decriminalisation of abortion but also, that individual State should take affirmative actions in promoting abortion as a right for every woman. However, that induced abortion is a punishable criminal act or a “protectable” woman’s reproductive right remains controversial due to the plethora of perspectives, beliefs and reservations held by different groups of people which are multi-dimensional and contradictory. This thesis therefore attempts a comparative study of abortion laws and policies in four jurisdictions: Nigeria and Ghana, operating criminalised abortion laws, South Africa and United States which operate liberalised/permissive abortion laws and policies. The study basically examines the legal status and reproductive rights of women to legal and safe abortion within the existing legal framework of national laws of the four selected jurisdictions vis-à-vis the legal protection offered by various international instruments on human rights. While we show that strict and restrictive abortion laws, and also, failure of States to create conditions for safe abortion constitute infractions of the reproductive rights of women, we submit further that over-liberalisation of abortion laws and policies could also amount to infringement of the basic rights of other people, thus there is need to ensure a legal and acceptable balance. The study finally acknowledges the role of international human rights laws in the protection of women’s right to legal and safe abortion but asserts that there can be no universally acceptable morality to which the whole world could subsume in term of women’s right to abortion due to the interplay of socio-cultural, religious, and moral affiliations of the people in different communities. , Thesis (LLD) -- Faculty of Law, 2010
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The nature and extent of child labour in Zimbabwe: a case study of Goromonzi District farms in Zimbabwe

- Musandirire, Sally

Authors: Musandirire, Sally
Date: 2010
Subjects: Child labour -- Zimbabwe , Child abuse -- Zimbabwe , Child welfare -- Zimbabwe , Child prostitution -- Zimbabwe , Children's rights -- Zimbabwe
Language: English
Type: Thesis , Masters , MA (Human Rights)
Identifier: vital:11097 , http://hdl.handle.net/10353/266 , Child labour -- Zimbabwe , Child abuse -- Zimbabwe , Child welfare -- Zimbabwe , Child prostitution -- Zimbabwe , Children's rights -- Zimbabwe
Description: The study examines the nature and extent of child labour in Goromonzi District farms in Zimbabwe. The main objective of the study was to investigate the nature and extent of child labour in Goromonzi District farms. The study reveals high levels of child exploitation and abuse. A qualitative design was chosen and purposive sampling was used. Interviews were used to collect data. The sample consisted of 40 children between 7 and 16 years. Interviews were also conducted with the Coalition Against Child Labour in Zimbabwe (CACLAZ). CACLAZ is an NGO that specializes in the elimination of child labour in Zimbabwe through the provision of education. The study reveals different forms of child labour. These include children working in communal and commercial farms, children working in domestic set up and child prostitution. The study exposes some of the causes and effects of child labour. Poverty, increased cost of education, and cultural practices were some of the causes of child labour. The study also reveals gaps that exist in the LRA. In view of the findings, the study makes recommendation on how to curb child labour and protect the rights of children as enshrined in various international instruments such as the CRC and ILO Conventions.
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