An evaluation of affirmative action in public sector
- Authors: Myoli, Vuyiseka Marly
- Date: 2017
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Human rights -- South Africa , Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/14190 , vital:27443
- Description: The South African public service has been undergoing fundamental transformation since 1994. The new government has had to build a democratic, inclusive and responsive public sector to the extent that the last two decades have witnessed the most dramatic shifts in public reform. After 1994, the public sector had to be transformed so that it could be representative of the nation’s racial composition, caters for the needs of all citizens irrespective of their racial, ethnic, gender, sexual persuasion and orientation. The government agenda of reconstructing and developing a democratic state depends on the willingness, capabilities and patriotism of the public service. As part of its transformation agenda, the government had to introduce policies that were focusing on promoting affirmative action and employment equity. Through this policy and other related employment equity measures, the South African public sector had to be transformed in terms of racial and gender representivity. This study assesses and evaluates whether the policies and legislation that were geared towards the transformation and democratization of public sector have yielded positive or negative results. By way of a literature review and comparative analysis, this study examines the objectives of affirmative action and analyses the approaches that have been taken since the adoption of this policy in the workplace. It looks at public sector and argues that there are still flaws relating to the implementation of affirmative action in public sector. The extent to which affirmative action programs attempt to implement affirmative action differs if South Africa and the United States of America can be taken as examples. The study considers some of the challenges faced by the new South African government in transforming public sector and interrogates the courts’ application and interpretation of affirmative action legislation. It concludes with recommendations that could be put in place in order to position affirmative action policies in line with the objectives of the South African Constitution, labour laws and American approach where the policy was adopted from.
- Full Text:
- Date Issued: 2017
- Authors: Myoli, Vuyiseka Marly
- Date: 2017
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Human rights -- South Africa , Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/14190 , vital:27443
- Description: The South African public service has been undergoing fundamental transformation since 1994. The new government has had to build a democratic, inclusive and responsive public sector to the extent that the last two decades have witnessed the most dramatic shifts in public reform. After 1994, the public sector had to be transformed so that it could be representative of the nation’s racial composition, caters for the needs of all citizens irrespective of their racial, ethnic, gender, sexual persuasion and orientation. The government agenda of reconstructing and developing a democratic state depends on the willingness, capabilities and patriotism of the public service. As part of its transformation agenda, the government had to introduce policies that were focusing on promoting affirmative action and employment equity. Through this policy and other related employment equity measures, the South African public sector had to be transformed in terms of racial and gender representivity. This study assesses and evaluates whether the policies and legislation that were geared towards the transformation and democratization of public sector have yielded positive or negative results. By way of a literature review and comparative analysis, this study examines the objectives of affirmative action and analyses the approaches that have been taken since the adoption of this policy in the workplace. It looks at public sector and argues that there are still flaws relating to the implementation of affirmative action in public sector. The extent to which affirmative action programs attempt to implement affirmative action differs if South Africa and the United States of America can be taken as examples. The study considers some of the challenges faced by the new South African government in transforming public sector and interrogates the courts’ application and interpretation of affirmative action legislation. It concludes with recommendations that could be put in place in order to position affirmative action policies in line with the objectives of the South African Constitution, labour laws and American approach where the policy was adopted from.
- Full Text:
- Date Issued: 2017
The impact of minimum sentence legislation on South African criminal law
- Authors: Du Plessis, Jan Andriaan
- Date: 2013
- Subjects: Sentences (Criminal procedure) -- South Africa , Capital punishment -- South Africa , Human rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10182 , http://hdl.handle.net/10948/d1020037x
- Description: The Criminal Law Amendment Act introduced a scheme where minimum sentences are prescribed for serious offences into the South African Criminal Law. The limitations put on the courts’ sentencing discretion were not received with unanimous approval from all quarters. The Constitutional Court declared the general working of the Act to be constitutional soon after its inception. Specific provisions pertaining to certain offences remained unpopular. The hefty sentence of 15 years imprisonment prescribed for the possession of a semi-automatic firearm is put forward as an example in this regard. High Courts avoid the minimum sentence prescribed for this offence by using different interpretational methods. Despite the sense of animosity towards the unfair contents of this provision, no ruling is made on the constitutionality thereof. An apparent deference towards the legislature could be detected on the part of the judiciary. South African jurisprudence discourages our courts to rule on the constitutionality of a law. It is only done when the defect could not be remedied by any other available means. The reluctance of our courts to make a ruling on the constitutionality of the semi-automatic provision does not promote legal certainty. High Courts attach different interpretations to the “true intention” of the legislature in order to bypass this provision. Logic dictates that inexperienced presiding officers with inferior interpretational skills would continue to hand down the minimum sentence while it remains on the law books. A sentence of fifteen years is also prescribed for robbery with aggravating circumstances. The existing common law on the interpretation of the definition of this offence provides for a wide range of human conduct to be included. Case law could be expected where the courts deviate from the prescribed sentence on a regular basis. This unscientific approach should be discouraged and a rethinking of the boundaries of this offence is suggested. The Act is doing more harm than good to our Criminal Law. The legislature could still provide other visible measures against serious crime without invading the sentencing discretion of the judiciary.
- Full Text:
- Date Issued: 2013
- Authors: Du Plessis, Jan Andriaan
- Date: 2013
- Subjects: Sentences (Criminal procedure) -- South Africa , Capital punishment -- South Africa , Human rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10182 , http://hdl.handle.net/10948/d1020037x
- Description: The Criminal Law Amendment Act introduced a scheme where minimum sentences are prescribed for serious offences into the South African Criminal Law. The limitations put on the courts’ sentencing discretion were not received with unanimous approval from all quarters. The Constitutional Court declared the general working of the Act to be constitutional soon after its inception. Specific provisions pertaining to certain offences remained unpopular. The hefty sentence of 15 years imprisonment prescribed for the possession of a semi-automatic firearm is put forward as an example in this regard. High Courts avoid the minimum sentence prescribed for this offence by using different interpretational methods. Despite the sense of animosity towards the unfair contents of this provision, no ruling is made on the constitutionality thereof. An apparent deference towards the legislature could be detected on the part of the judiciary. South African jurisprudence discourages our courts to rule on the constitutionality of a law. It is only done when the defect could not be remedied by any other available means. The reluctance of our courts to make a ruling on the constitutionality of the semi-automatic provision does not promote legal certainty. High Courts attach different interpretations to the “true intention” of the legislature in order to bypass this provision. Logic dictates that inexperienced presiding officers with inferior interpretational skills would continue to hand down the minimum sentence while it remains on the law books. A sentence of fifteen years is also prescribed for robbery with aggravating circumstances. The existing common law on the interpretation of the definition of this offence provides for a wide range of human conduct to be included. Case law could be expected where the courts deviate from the prescribed sentence on a regular basis. This unscientific approach should be discouraged and a rethinking of the boundaries of this offence is suggested. The Act is doing more harm than good to our Criminal Law. The legislature could still provide other visible measures against serious crime without invading the sentencing discretion of the judiciary.
- Full Text:
- Date Issued: 2013
An analysis of the elements of genocide with reference to the South African farmer's case
- Authors: Du Toit, Johanna Helena
- Date: 2011
- Subjects: Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10168 , http://hdl.handle.net/10948/1568 , Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
- Description: The definition of genocide encompasses not only the killing of a protected group as is so often erroneously believed, but also inter alia the causing of serious bodily and mental harm to a group and deliberately inflicting conditions of life on a group calculated to bring about its destruction in whole or in part. Eight stages have been identified through which conventional genocide goes. There is a closed list of four groups named in the Genocide Convention in respect of which genocide can be perpetrated. Problems have been experienced with the classification and the determination whether a group should qualify or not. In answer to this problem, the definition of the groups should be seen cohesively and attempts should preferably not be made to compartmentalise any group suspected of being targeted for genocide. The special intent required for genocide sets it apart from other crimes against humanity. The intention that needs to be proven is the desire to exterminate a group as such in whole or in part. The mention of “in part” opens the door for genocide to be perpetrated against a small sub-group which conforms to the definition of a group. The white Afrikaner farmer forms part of the larger white Afrikaner group residing in South Africa. Incitement to genocide is an inchoate crime and is regarded as a lesser crime reflected in lower sentences being passed for incitement than for genocide itself. The requirements are that the incitement must be direct and public. The required intention to incite must also be proven for a conviction to follow. The farmer who laid the complaint with the International Criminal Court, did so in the hope that the Prosecutor would utilise his or her proprio motu powers to instigate an investigation in South Africa regarding white Afrikaner farmers. The complaint and petition as well as the statistics used by the farmer paint the picture of incitement to genocide and possible genocide. The allegations are not specific and will have to be proven in a court of law for any such finding to follow. , Abstract
- Full Text:
- Date Issued: 2011
- Authors: Du Toit, Johanna Helena
- Date: 2011
- Subjects: Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10168 , http://hdl.handle.net/10948/1568 , Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
- Description: The definition of genocide encompasses not only the killing of a protected group as is so often erroneously believed, but also inter alia the causing of serious bodily and mental harm to a group and deliberately inflicting conditions of life on a group calculated to bring about its destruction in whole or in part. Eight stages have been identified through which conventional genocide goes. There is a closed list of four groups named in the Genocide Convention in respect of which genocide can be perpetrated. Problems have been experienced with the classification and the determination whether a group should qualify or not. In answer to this problem, the definition of the groups should be seen cohesively and attempts should preferably not be made to compartmentalise any group suspected of being targeted for genocide. The special intent required for genocide sets it apart from other crimes against humanity. The intention that needs to be proven is the desire to exterminate a group as such in whole or in part. The mention of “in part” opens the door for genocide to be perpetrated against a small sub-group which conforms to the definition of a group. The white Afrikaner farmer forms part of the larger white Afrikaner group residing in South Africa. Incitement to genocide is an inchoate crime and is regarded as a lesser crime reflected in lower sentences being passed for incitement than for genocide itself. The requirements are that the incitement must be direct and public. The required intention to incite must also be proven for a conviction to follow. The farmer who laid the complaint with the International Criminal Court, did so in the hope that the Prosecutor would utilise his or her proprio motu powers to instigate an investigation in South Africa regarding white Afrikaner farmers. The complaint and petition as well as the statistics used by the farmer paint the picture of incitement to genocide and possible genocide. The allegations are not specific and will have to be proven in a court of law for any such finding to follow. , Abstract
- Full Text:
- Date Issued: 2011
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:
- Date Issued: 2011
- 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:
- Date Issued: 2011
The constitutional right to food in South Africa
- Authors: Holness, David Roy
- Date: 2007
- Subjects: Right to food , Human rights -- South Africa , Nutrition policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10202 , http://hdl.handle.net/10948/844 , Right to food , Human rights -- South Africa , Nutrition policy -- South Africa
- Description: This dissertation is a study of the ambit of the right to food as it is contained in the South African Bill of Rights and the steps needed to realise the right. Existing and potential food insecurity, hunger and malnutrition provide the social context for this research. The rationale for conducting the research is primarily two-fold. Firstly, the access to sufficient food is an indispensable right for everyone living in this country. Secondly, the right to food in South Africa has not been subject to extensive academic study to date. Socio-economic rights are fully justiciable rights in this country, equally worthy of protection as civil and political rights. Furthermore, socio-economic rights (like the right to food) are interdependent with civil and political rights: neither category can meaningful exist without realisation of the other. The right to sufficient food is found in section 27(1)(b) of the South African Constitution. Children have the additional right to basic nutrition in terms of section 28(1)(c). The right to sufficient food is subject to the internal limitation of section 27(2) that the state must take reasonable measures, within its available resources, to achieve the progressive realisation of the right. Furthermore, as with all rights in the Bill of Rights, both these rights are subject to the general limitations clause found in section 36. There is international law authority in various human rights instruments for the protection of the right to food and what the right entails. In accordance with section 39 of the Constitution, such international law must be considered when interpreting the right to food. It is argued that a generous and broad interpretation of food rights in the Constitution is called for. Existing legislation, state policies and programmes are analysed in order to gauge whether the state is adequately meeting its right to food obligations. Furthermore, the state’s food programmes must meet the just administrative action requirements of lawfulness, reasonableness and procedural fairness of section 33 of the Constitution and comply with the Promotion of Just Administrative Justice Act. The dissertation analyses the disparate and unco-ordinated food and law policies in existence, albeit that the National Food Security Draft Bill offers the hope of some improvement. Particular inadequacies highlighted in the state’s response to the country’s food challenges are a lack of any feeding schemes in high schools and insufficient food provision in emergency situations. Social assistance grants available in terms of the Social Assistance Act are considered due to their potential to make food available to grant recipients. On the one hand there is shown to be a lack of social assistance for unemployed people who do not qualify for any form of social grant. On the other hand, whilst presently underutilised and not always properly administered, social relief of distress grants are shown to have the potential to improve access to sufficient food for limited periods of time. Other suggested means of improving access to sufficient food are income generation strategies, the introduction of a basic income grant and the creation of food framework legislation. When people are denied their food rights, this research calls for creative judicial remedies as well as effective enforcement of such court orders. However, it is argued that education on what the right to food entails is a precondition for people to seek legal recourse to protect their right to food. Due to a lack of case authority on food itself, guidance is sought from the findings of South Africa’s Constitutional Court in analogous socio-economic rights challenges. Through this analysis this dissertation considers the way forward, either in terms of direct court action or via improved access to other rights which will improve food access.
- Full Text:
- Date Issued: 2007
- Authors: Holness, David Roy
- Date: 2007
- Subjects: Right to food , Human rights -- South Africa , Nutrition policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10202 , http://hdl.handle.net/10948/844 , Right to food , Human rights -- South Africa , Nutrition policy -- South Africa
- Description: This dissertation is a study of the ambit of the right to food as it is contained in the South African Bill of Rights and the steps needed to realise the right. Existing and potential food insecurity, hunger and malnutrition provide the social context for this research. The rationale for conducting the research is primarily two-fold. Firstly, the access to sufficient food is an indispensable right for everyone living in this country. Secondly, the right to food in South Africa has not been subject to extensive academic study to date. Socio-economic rights are fully justiciable rights in this country, equally worthy of protection as civil and political rights. Furthermore, socio-economic rights (like the right to food) are interdependent with civil and political rights: neither category can meaningful exist without realisation of the other. The right to sufficient food is found in section 27(1)(b) of the South African Constitution. Children have the additional right to basic nutrition in terms of section 28(1)(c). The right to sufficient food is subject to the internal limitation of section 27(2) that the state must take reasonable measures, within its available resources, to achieve the progressive realisation of the right. Furthermore, as with all rights in the Bill of Rights, both these rights are subject to the general limitations clause found in section 36. There is international law authority in various human rights instruments for the protection of the right to food and what the right entails. In accordance with section 39 of the Constitution, such international law must be considered when interpreting the right to food. It is argued that a generous and broad interpretation of food rights in the Constitution is called for. Existing legislation, state policies and programmes are analysed in order to gauge whether the state is adequately meeting its right to food obligations. Furthermore, the state’s food programmes must meet the just administrative action requirements of lawfulness, reasonableness and procedural fairness of section 33 of the Constitution and comply with the Promotion of Just Administrative Justice Act. The dissertation analyses the disparate and unco-ordinated food and law policies in existence, albeit that the National Food Security Draft Bill offers the hope of some improvement. Particular inadequacies highlighted in the state’s response to the country’s food challenges are a lack of any feeding schemes in high schools and insufficient food provision in emergency situations. Social assistance grants available in terms of the Social Assistance Act are considered due to their potential to make food available to grant recipients. On the one hand there is shown to be a lack of social assistance for unemployed people who do not qualify for any form of social grant. On the other hand, whilst presently underutilised and not always properly administered, social relief of distress grants are shown to have the potential to improve access to sufficient food for limited periods of time. Other suggested means of improving access to sufficient food are income generation strategies, the introduction of a basic income grant and the creation of food framework legislation. When people are denied their food rights, this research calls for creative judicial remedies as well as effective enforcement of such court orders. However, it is argued that education on what the right to food entails is a precondition for people to seek legal recourse to protect their right to food. Due to a lack of case authority on food itself, guidance is sought from the findings of South Africa’s Constitutional Court in analogous socio-economic rights challenges. Through this analysis this dissertation considers the way forward, either in terms of direct court action or via improved access to other rights which will improve food access.
- Full Text:
- Date Issued: 2007
Judicial enforcement of socio-economic rights under the 1996 constitution : realising the vision of social justice
- Authors: Ngcukaitobi, T
- Date: 2003
- Subjects: South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3689 , http://hdl.handle.net/10962/d1003204 , South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Description: Few legal developments in South Africa and elsewhere in the world in recent times have excited such controversy as the legal recognition of social and economic rights. South Africa has created a special place for itself in world affairs for being one of the countries that recognise socio-economic rights in a justiciable Bill of Rights. Partly this is in response to the appalling levels of poverty prevalent in the country which could potentially destabilise the new democracy. Improvement of the quality of life of every citizen is a crucial step in consolidating the constitutional democracy. The question that will face any court in giving effect to socio-economic rights is: how are these rights to be judicially enforced in a given context? The crux of this thesis lies in the resolution of this question. Firstly this thesis traces the philosophical foundations to the legal recognition of socio-economic rights. It is stated that the recognition of these rights in a justiciable bill of rights requires a conceptually sound understanding of the nature of obligations that these rights place on the state. It is emphasised that it is imperative that access to justice be facilitated to poor and vulnerable members of society for the realisation of the constitutional goal of addressing inequality. Particular concern and priority should in this context be given to women, children and the disabled. The study explores various judicial remedies and makes suggestions on new and innovative constitutional mechanisms for judicial enforcement of these rights. It is concluded that there is an important role to be played by civil society in giving meaningful effect to socio-economic rights.
- Full Text:
- Date Issued: 2003
- Authors: Ngcukaitobi, T
- Date: 2003
- Subjects: South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3689 , http://hdl.handle.net/10962/d1003204 , South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Description: Few legal developments in South Africa and elsewhere in the world in recent times have excited such controversy as the legal recognition of social and economic rights. South Africa has created a special place for itself in world affairs for being one of the countries that recognise socio-economic rights in a justiciable Bill of Rights. Partly this is in response to the appalling levels of poverty prevalent in the country which could potentially destabilise the new democracy. Improvement of the quality of life of every citizen is a crucial step in consolidating the constitutional democracy. The question that will face any court in giving effect to socio-economic rights is: how are these rights to be judicially enforced in a given context? The crux of this thesis lies in the resolution of this question. Firstly this thesis traces the philosophical foundations to the legal recognition of socio-economic rights. It is stated that the recognition of these rights in a justiciable bill of rights requires a conceptually sound understanding of the nature of obligations that these rights place on the state. It is emphasised that it is imperative that access to justice be facilitated to poor and vulnerable members of society for the realisation of the constitutional goal of addressing inequality. Particular concern and priority should in this context be given to women, children and the disabled. The study explores various judicial remedies and makes suggestions on new and innovative constitutional mechanisms for judicial enforcement of these rights. It is concluded that there is an important role to be played by civil society in giving meaningful effect to socio-economic rights.
- Full Text:
- Date Issued: 2003
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