Rationalisation of magisterial districts to transform the judiciary and widen access to justice under the RSA constitution of 1996
- Authors: Skosana, Jacob
- Date: 2024-01
- Subjects: Justice, Administration of , Law and socialism , Human rights -- South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/28162 , vital:72777
- Description: The study examines how pre-1994 magisterial districts jurisdictions denied access to justice to many South Africans, and ongoing efforts to reverse this injustice. Delayed rationalisation of the judiciary and reform of the courts territorial jurisdiction during the apartheid era exacerbated the problem. The courts administered justice along spatial racial divide, and given the location of the courts, many black communities had to commute long distances to access justice and at a great cost and inconvenience. The Constitution of South Africa of 1996 provides not only for the right to equality before the law and equal protection and benefit of the law but also the right to access the courts and seek recourse. In a period spanning eight years from December 2014, new magisterial districts were proclaimed in all the nine provinces of South Africa. Despite this milestone and the imperative of the 1996 Constitution, the rationalisation process is still in its infancy: old legislation and judicial structures remain intact; divisions of the High Court continue to exercise jurisdictions determined for the pre-1994 constitutional dispensation. The status quo continues to perpetuate the denial of access to justice to communities especially those living in areas that hitherto formed part of the former homelands and self-governing ‘states’. The study was conducted through a desktop survey of primary and secondary material relevant to the rationalisation process. It drew lessons from the re-demarcation of municipal boundaries which, like magisterial districts, were based on racial laws and policies of the past. It also contrasted rationalisation principles in comparable jurisdictions. The findings provide a useful contribution to the ongoing effort to effect rationalisation of the court system. They also contribute to knowledge and enriches our understanding of the relationship that underpins the administration of justice in a dispensation driven by democratic, human rights and constitutional ethos. , Thesis (PhD (LLD)) -- Faculty of Law, 2024
- Full Text:
- Authors: Skosana, Jacob
- Date: 2024-01
- Subjects: Justice, Administration of , Law and socialism , Human rights -- South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/28162 , vital:72777
- Description: The study examines how pre-1994 magisterial districts jurisdictions denied access to justice to many South Africans, and ongoing efforts to reverse this injustice. Delayed rationalisation of the judiciary and reform of the courts territorial jurisdiction during the apartheid era exacerbated the problem. The courts administered justice along spatial racial divide, and given the location of the courts, many black communities had to commute long distances to access justice and at a great cost and inconvenience. The Constitution of South Africa of 1996 provides not only for the right to equality before the law and equal protection and benefit of the law but also the right to access the courts and seek recourse. In a period spanning eight years from December 2014, new magisterial districts were proclaimed in all the nine provinces of South Africa. Despite this milestone and the imperative of the 1996 Constitution, the rationalisation process is still in its infancy: old legislation and judicial structures remain intact; divisions of the High Court continue to exercise jurisdictions determined for the pre-1994 constitutional dispensation. The status quo continues to perpetuate the denial of access to justice to communities especially those living in areas that hitherto formed part of the former homelands and self-governing ‘states’. The study was conducted through a desktop survey of primary and secondary material relevant to the rationalisation process. It drew lessons from the re-demarcation of municipal boundaries which, like magisterial districts, were based on racial laws and policies of the past. It also contrasted rationalisation principles in comparable jurisdictions. The findings provide a useful contribution to the ongoing effort to effect rationalisation of the court system. They also contribute to knowledge and enriches our understanding of the relationship that underpins the administration of justice in a dispensation driven by democratic, human rights and constitutional ethos. , Thesis (PhD (LLD)) -- Faculty of Law, 2024
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The protection of the rights of people with disabilities in the South African workplace: a critical analysis
- Xokozela, Nwabisa https://orcid.org/0000-0002-6943-219X
- Authors: Xokozela, Nwabisa https://orcid.org/0000-0002-6943-219X
- Date: 2022-11
- Subjects: People with disabilities -- Legal status, laws, etc. , Human rights -- South Africa , People with disabilities -- Government policy
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28444 , vital:74332
- Description: In the past, persons with disabilities were marginalised and suffered many disadvantages because of oppression. As a result, that had become an obstacle for them to enjoy their basic rights such as social, political and economic rights. Judging from the inequalities in the workplace, disability appears to be the main challenge hindering the progress of achieving equal prospects and fair treatment in many countries, including South Africa, especially in the workplace. That has resulted in most persons with disabilities living in poverty or rather depending on social support from the government in order to survive, due to employment discrimination. Policies, transformative programmes and employment laws have been promulgated to address employment discrimination. Some of the promulgated transformative programmes were developed to enforce section 9 of the Constitution. However, persons with disabilities are still faced with challenges of discriminatory practices in the workplace even today. This study is impelled by how ineffective these employment laws are, especially when safeguarding of persons with disabilities is concerned. Apart from the ineffectiveness of the current labour legislation in protecting the rights of persons with disabilities, the study aims at identifying how equality rights can be used by disability movements in order to influence policy development and implementation to advance access to work for persons with disabilities, and to further provide them with reasonable accommodation to be able to thrive within the workplace. Also, deriving some guidance from the international perspective of governing disability rights is of paramount importance in achieving equality within the working environment. It is thus extremely important to adopt compelling speedy actions to promote equal rights in the context of disability by bringing proportional aspects of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) into action. That can be achieved if the policies and legislation created can be interpreted in a manner that is equal and effective, and that promotes implementation more than theory. Therefore, dealing with discrimination against persons with disabilities signifies an essential aspect in defeating the elevated inequality in the apartheid era, which disempowers the recognised constitutional democracy. , Thesis (LLM) -- Faculty of Law, 2022
- Full Text:
- Authors: Xokozela, Nwabisa https://orcid.org/0000-0002-6943-219X
- Date: 2022-11
- Subjects: People with disabilities -- Legal status, laws, etc. , Human rights -- South Africa , People with disabilities -- Government policy
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28444 , vital:74332
- Description: In the past, persons with disabilities were marginalised and suffered many disadvantages because of oppression. As a result, that had become an obstacle for them to enjoy their basic rights such as social, political and economic rights. Judging from the inequalities in the workplace, disability appears to be the main challenge hindering the progress of achieving equal prospects and fair treatment in many countries, including South Africa, especially in the workplace. That has resulted in most persons with disabilities living in poverty or rather depending on social support from the government in order to survive, due to employment discrimination. Policies, transformative programmes and employment laws have been promulgated to address employment discrimination. Some of the promulgated transformative programmes were developed to enforce section 9 of the Constitution. However, persons with disabilities are still faced with challenges of discriminatory practices in the workplace even today. This study is impelled by how ineffective these employment laws are, especially when safeguarding of persons with disabilities is concerned. Apart from the ineffectiveness of the current labour legislation in protecting the rights of persons with disabilities, the study aims at identifying how equality rights can be used by disability movements in order to influence policy development and implementation to advance access to work for persons with disabilities, and to further provide them with reasonable accommodation to be able to thrive within the workplace. Also, deriving some guidance from the international perspective of governing disability rights is of paramount importance in achieving equality within the working environment. It is thus extremely important to adopt compelling speedy actions to promote equal rights in the context of disability by bringing proportional aspects of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) into action. That can be achieved if the policies and legislation created can be interpreted in a manner that is equal and effective, and that promotes implementation more than theory. Therefore, dealing with discrimination against persons with disabilities signifies an essential aspect in defeating the elevated inequality in the apartheid era, which disempowers the recognised constitutional democracy. , Thesis (LLM) -- Faculty of Law, 2022
- Full Text:
Civil protests and their impact on human rights in the Republic of South Africa
- Authors: Melvin, Kokwe Sonwabo
- Date: 2021-03
- Subjects: Protest movements -- South Africa , Human rights -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28184 , vital:73806
- Description: This mini dissertation investigates civil protests and their impact on human rights in the Republic of South Africa. South Africa is a democratic country that subscribes to representative democracy. Its civilians vote for political parties that elect members to represent them in parliament or in government. Civilians are not members of armed forces, such as police, soldiers, or fire fighters. These people are ordinary citizen with no power or authority to engage in war as they do not have arms or gear to do so. Whenever they feel aggrieved with situation or action by authorities (political leaders, government, or employers), they embark on protest to voice their grievances or disapproval. However, in the process of protest there have been developments of intimidation, vandalism, abuse, and violation of other people's rights. This happens even though the right to protest is enshrined to the Constitution of the Republic of South Africa. Section 17 of the constitution guarantees civilians the right to protest. It further stipulates the way in which protests should be conducted. The fact that protest is recognised as a right, means it plays an important role in assisting civilians expressing dissatisfaction with current situations and assert demands for social, political, and economic change. Additionally, the right to protest gives citizens right to participate in discourse. It is the individual and/or collective exercise of existing and universally recognised human rights that affords civilians opportunity to demand dignity, freedom of association and expression from authorities. Although this right is fundamental, it has its limitations, and its impact is crucial to human rights. This is so because every protest is human right inclined. Hence, this mini dissertation attempts to contribute to academic discourse by bringing forth human rights perspective on the impact of civil protest. The discourse has been majorly influenced by the following disciplines: sociology, social psychology, anthropology, political science, economics, and public administration. The existence of this study attempts to conscientize civilians about the importance of respecting, supporting, and protecting human rights. The study found that violent protests have negative impact on human rights. The negative impact is not only experienced by non-protesting civilians, but by protesting civilians. Because of the interdependency of rights, the study has also found that infringement of one right can lead to the violation of other rights. For instance, the burning of infrastructure such as clinic does not violate the right to access health only, but also violate the right to life, education, and security. Therefore, the study concludes that civilian's use of violence during protest action does not advance section 17 of the Constitution. Instead, it violates the same section or right. Moreover, negative impact of violent protests cost civilians dearly. Because after destroying property, the same civilians that destroy property are the ones who suffers. For instance, burning of police vehicles, makes it difficult for police to attend civilian's calls for help. Lastly, this mini dissertation concludes by recommending areas where government and civilians need to consider in respecting, supporting, and protecting human rights in a protest. , Thesis (MPhil) -- Faculty of Law, 2021
- Full Text:
- Authors: Melvin, Kokwe Sonwabo
- Date: 2021-03
- Subjects: Protest movements -- South Africa , Human rights -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28184 , vital:73806
- Description: This mini dissertation investigates civil protests and their impact on human rights in the Republic of South Africa. South Africa is a democratic country that subscribes to representative democracy. Its civilians vote for political parties that elect members to represent them in parliament or in government. Civilians are not members of armed forces, such as police, soldiers, or fire fighters. These people are ordinary citizen with no power or authority to engage in war as they do not have arms or gear to do so. Whenever they feel aggrieved with situation or action by authorities (political leaders, government, or employers), they embark on protest to voice their grievances or disapproval. However, in the process of protest there have been developments of intimidation, vandalism, abuse, and violation of other people's rights. This happens even though the right to protest is enshrined to the Constitution of the Republic of South Africa. Section 17 of the constitution guarantees civilians the right to protest. It further stipulates the way in which protests should be conducted. The fact that protest is recognised as a right, means it plays an important role in assisting civilians expressing dissatisfaction with current situations and assert demands for social, political, and economic change. Additionally, the right to protest gives citizens right to participate in discourse. It is the individual and/or collective exercise of existing and universally recognised human rights that affords civilians opportunity to demand dignity, freedom of association and expression from authorities. Although this right is fundamental, it has its limitations, and its impact is crucial to human rights. This is so because every protest is human right inclined. Hence, this mini dissertation attempts to contribute to academic discourse by bringing forth human rights perspective on the impact of civil protest. The discourse has been majorly influenced by the following disciplines: sociology, social psychology, anthropology, political science, economics, and public administration. The existence of this study attempts to conscientize civilians about the importance of respecting, supporting, and protecting human rights. The study found that violent protests have negative impact on human rights. The negative impact is not only experienced by non-protesting civilians, but by protesting civilians. Because of the interdependency of rights, the study has also found that infringement of one right can lead to the violation of other rights. For instance, the burning of infrastructure such as clinic does not violate the right to access health only, but also violate the right to life, education, and security. Therefore, the study concludes that civilian's use of violence during protest action does not advance section 17 of the Constitution. Instead, it violates the same section or right. Moreover, negative impact of violent protests cost civilians dearly. Because after destroying property, the same civilians that destroy property are the ones who suffers. For instance, burning of police vehicles, makes it difficult for police to attend civilian's calls for help. Lastly, this mini dissertation concludes by recommending areas where government and civilians need to consider in respecting, supporting, and protecting human rights in a protest. , Thesis (MPhil) -- Faculty of Law, 2021
- Full Text:
Reconciling the right to housing with the establishment of informal settlements in South Africa
- Authors: Dibela, Michael Mzwandile
- Date: 2015-05
- Subjects: Housing policy -- South Africa , Human rights -- South Africa , Social justice
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/25901 , vital:64562
- Description: After the advent of Democracy in 1994, the South African government prioritised the question of homelessness of the South African citizens in particular the previously disadvantaged people. Through its various departments nationally, provincially and locally, many legislations have been enacted in order to assuage this problem. The study seeks to find out what are the policies if any, and attempts which have been made by the government in eradicating this problem and whether sufficient funds are being channelled from the national and provincial government in an endeavour to eradicate the problem of homelessness and whether the government is winning the battle. , Thesis (MPhil) -- Faculty of Social Sciences and Humanities, 2015
- Full Text:
- Authors: Dibela, Michael Mzwandile
- Date: 2015-05
- Subjects: Housing policy -- South Africa , Human rights -- South Africa , Social justice
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/25901 , vital:64562
- Description: After the advent of Democracy in 1994, the South African government prioritised the question of homelessness of the South African citizens in particular the previously disadvantaged people. Through its various departments nationally, provincially and locally, many legislations have been enacted in order to assuage this problem. The study seeks to find out what are the policies if any, and attempts which have been made by the government in eradicating this problem and whether sufficient funds are being channelled from the national and provincial government in an endeavour to eradicate the problem of homelessness and whether the government is winning the battle. , Thesis (MPhil) -- Faculty of Social Sciences and Humanities, 2015
- Full Text:
Factors that conduce towards domestic violence against rural women a case study of Sisonke District Municipality KwaZulu Natal
- Authors: Nyathi, Noluvo Annagratia
- Date: 2012
- Subjects: Spousal abuse -- South Africa -- KwaZulu Natal , Human rights -- South Africa , Crimes against -- Women , Legal status laws etc -- South Africa -- KwaZulu Natal , Domestic Violence -- KwaZulu Natal -- South Africa
- Language: English
- Type: Thesis , Masters , MA (Human Rights)
- Identifier: vital:11100 , http://hdl.handle.net/10353/509 , Spousal abuse -- South Africa -- KwaZulu Natal , Human rights -- South Africa , Crimes against -- Women , Legal status laws etc -- South Africa -- KwaZulu Natal , Domestic Violence -- KwaZulu Natal -- South Africa
- Description: In all the Black communities, women’s rights have always been taken for granted. Women have always been subordinate to the patriarchal system. The denial of domestic violence against rural women has its origin in the age long patriarchal society, deeply rooted in culture and tradition. The main aim of the patriarchal society is the control of women by men. The idea of protecting women abuse is not really new. It is a necessary component of long established and internationally recognized human rights. This includes the right to equality and freedom, liberty and personal security. The recognition could be traced to the adoption of the Universal Declaration of Human Rights of 1948 (UDHR). However, women’s rights remain unrealized and are continuously violated despite the fact that these rights are well expressed in many international documents and national laws. The study examined the factors that conduce towards domestic violence against rural women in the Kwa Zulu Natal Province of South Africa. In this regard, the reasons why they support culture and traditional practices that are detrimental to their health were also explored. The small isolated area of Umzimkhulu was used. In-depth face to face interviews were employed to elicit information from the respondents and brief notes were written down to collect the data. The findings revealed that women are not aware of their human rights. This ignorance and negative attitude is influenced by the dependency of women to men, supremacy of the patriarchal system and the dominance of culture. Most disturbing is that these women don’t seem to see anything wrong with the situation. It is evidently clear therefore that women empowerment, through education, will not only affect women’s autonomy but will also increase their worth and make them understand the impact of traditional practices that they support. All these will have implications for policy and legislative interventions.
- Full Text:
- Authors: Nyathi, Noluvo Annagratia
- Date: 2012
- Subjects: Spousal abuse -- South Africa -- KwaZulu Natal , Human rights -- South Africa , Crimes against -- Women , Legal status laws etc -- South Africa -- KwaZulu Natal , Domestic Violence -- KwaZulu Natal -- South Africa
- Language: English
- Type: Thesis , Masters , MA (Human Rights)
- Identifier: vital:11100 , http://hdl.handle.net/10353/509 , Spousal abuse -- South Africa -- KwaZulu Natal , Human rights -- South Africa , Crimes against -- Women , Legal status laws etc -- South Africa -- KwaZulu Natal , Domestic Violence -- KwaZulu Natal -- South Africa
- Description: In all the Black communities, women’s rights have always been taken for granted. Women have always been subordinate to the patriarchal system. The denial of domestic violence against rural women has its origin in the age long patriarchal society, deeply rooted in culture and tradition. The main aim of the patriarchal society is the control of women by men. The idea of protecting women abuse is not really new. It is a necessary component of long established and internationally recognized human rights. This includes the right to equality and freedom, liberty and personal security. The recognition could be traced to the adoption of the Universal Declaration of Human Rights of 1948 (UDHR). However, women’s rights remain unrealized and are continuously violated despite the fact that these rights are well expressed in many international documents and national laws. The study examined the factors that conduce towards domestic violence against rural women in the Kwa Zulu Natal Province of South Africa. In this regard, the reasons why they support culture and traditional practices that are detrimental to their health were also explored. The small isolated area of Umzimkhulu was used. In-depth face to face interviews were employed to elicit information from the respondents and brief notes were written down to collect the data. The findings revealed that women are not aware of their human rights. This ignorance and negative attitude is influenced by the dependency of women to men, supremacy of the patriarchal system and the dominance of culture. Most disturbing is that these women don’t seem to see anything wrong with the situation. It is evidently clear therefore that women empowerment, through education, will not only affect women’s autonomy but will also increase their worth and make them understand the impact of traditional practices that they support. All these will have implications for policy and legislative interventions.
- Full Text:
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
- 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
- Full Text:
- 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
- Full Text:
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