This study focuses on the role of the South African judiciary under an entrenched and justiciable Bill of Rights. The lack of an established human rights culture in South Africa results in uncertainty regarding the permissible extent to which judges are empowered, under the Bill of Rights, to employ judicial activism and creativity in order to protect the fundamental rights of citizens. Judicial activism is used in the sense that judges can and should, whenever expressly or impliedly sanctioned to do so by the Bill of Rights, ensure that the fundamental rights of the individual are protected to the extent of granting actual constitutional relief, where this is justified, instead of merely declaring the existence of a right. The essential aim of this study is to outline the parameters of, and the legal basis upon which judicial activism can be justified and accepted into a South African human rights culture. / Jurisprudence / LL. M.

This study focuses on the role of the South African judiciary under an entrenched and justiciable Bill of Rights. The lack of an established human rights culture in South Africa results in uncertainty regarding the permissible extent to which judges are empowered, under the Bill of Rights, to employ judicial activism and creativity in order to protect the fundamental rights of citizens. Judicial activism is used in the sense that judges can and should, whenever expressly or impliedly sanctioned to do so by the Bill of Rights, ensure that the fundamental rights of the individual are protected to the extent of granting actual constitutional relief, where this is justified, instead of merely declaring the existence of a right. The essential aim of this study is to outline the parameters of, and the legal basis upon which judicial activism can be justified and accepted into a South African human rights culture. / Jurisprudence / LL. M.

Jurisprudence / (LL.D.)

Jurisprudence / (LL.D.)

Thesis (LLM. (Management and Development)) -- University of Limpopo, 2014 / Every accused person has the right to a fair trial which encompasses the right to adduce and challenge evidence in court. Whilst the Constitution of the Republic of South Africa confers the right to legal representation, an accused person may still opt to conduct his or her own defence. Once an unrepresented accused opts to conduct his or her own defence, the presiding officer then becomes obliged to assist the undefended accused to present his or her own case. South Africa adheres to the accusatorial / adversarial system. Under the accusatorial / adversarial system the presiding judicial officer is in the role of a detached umpire, who should not descend the arena of the duel between the state and the defence for fear of becoming partial or of losing perspective as a result of the dust caused by the affray between the state and the defence. Under the accusatorial/adversarial system, a presiding officer may find it challenging to assist an unrepresented accused or may inadequately assist him or her. This may be so because a fair trial is not determined by ensuring exercise of one of the rights to a fair trial but all the rights to a fair trial. This mini-dissertation, on the injunction of section 35 of the Constitution of the Republic of South Africa which makes provision for the rights to a fair trial, covers the different rights of an unrepresented accused. This is done alongside related provisions of the Criminal Procedure Act 51 of 1977 and pertinent case law. The fat that an unrepresented accused has waived legal representation at the expense of the state and has opted to conduct his or her own defence should not be to his or her peril. The court has a constitutional injunction to protect and advance the rights of an unrepresented accused. Justice must not only be done but must also be seen to be done.

The author explores the traditional approaches to interpretation in a constitutional democracy, with specific emphasis on Bill of Rights interpretation. The approaches adopted by the court in India and Canada, are briefly outlined with a view to gleaning from the experience of these countries, a theory which will inform a proper approach to interpretation in a South African context. He concludes that the value-based approach is most appropriate to concretise the rights entrenched in the Bill of Rights, and specifically the so-called second and third generation rights. Addressing the fear that this may lead to an undisciplined judiciary, he concludes that there are sufficient disciplinning mechanisms to ensure that the courts do not encroach upon the other branches of government. / Constitutional, International & Indigenous Law / LL.M.

The author explores the traditional approaches to interpretation in a constitutional democracy, with specific emphasis on Bill of Rights interpretation. The approaches adopted by the court in India and Canada, are briefly outlined with a view to gleaning from the experience of these countries, a theory which will inform a proper approach to interpretation in a South African context. He concludes that the value-based approach is most appropriate to concretise the rights entrenched in the Bill of Rights, and specifically the so-called second and third generation rights. Addressing the fear that this may lead to an undisciplined judiciary, he concludes that there are sufficient disciplinning mechanisms to ensure that the courts do not encroach upon the other branches of government. / Constitutional, International and Indigenous Law / LL.M.

The right to have access to health care services is enshrined in section 27 of the South African Constitution of 1996 as one of the socio-economic rights protected by this Constitution. In order to observe the entitlements in this human right, the South African government has since 1994, embarked on legislation, policies and programmes to improve access to health care services among vulnerable and disadvantaged groups in South Africa. As a result of the measures put in place by the government, enormous progress has been registered since their enforcement, in respect of access to health care services. However, as evident in some reports such as the 7th Report on Economic and Social Rights by the South African Human Rights Commission and studies conducted by the Studies in Poverty and Inequality Institute (SPII), it is revealed that the measures adopted by the government to improve access to health care services have not effectively translated the entitlements of this right to the population of South Africa. This study is motivated by the disclosure of these concerns, irrespective of the measures put in place by the government to achieve universal access to health care services. The study therefore aims at stressing the importance of upholding the right to have access to health care services in the social transformation process of South Africa. In doing so, it will investigate current health care reforms in South Africa and make recommendations on how to effectively interpret and implement section 27 of the Constitution to achieve equal benefits on access to health care services to everyone in South Africa. / Jurisprudence / LL. M.

The adoption of the 1996 Constitution in recognition of the historic imbalances that South Africa inherited from its past, affirms the commitment to the promotion of human rights including the right to equality. The emphasis on the right to equality in the Constitution and other related laws discussed in the study represents a guarantee for both men and women the right to equal treatment and benefit of the law. The point of departure is based on the premise that views the law as an instrument that has the potential to effect social change. The primary purpose is to determine various factors that are an impediment to the significance of the law for the promotion of the right to gender equality. The objective is to establish with sufficient certainty the substantive conception of the right to gender equality in post-apartheid South Africa. This dissertation examines and provides a brief overview of the development and the intersection of the principles of non-discrimination at the international and regional spheres and their influence in broadening the scope for enforcement of gender equality in South Africa. It provides a literature review and an analysis of the equality jurisprudence of South Africa’s Constitutional Court and its influence to the lowest structures of the judiciary in promoting the right to gender equality. This undertaking is reinforced by the primary purpose in this study of examining various factors that are an impediment to the promotion of the right to gender equality. It discovers that the establishment of a “just society” is difficult where the significance of the law is affected by the lack of legal knowledge and other related factors identified in the study. It establishes that the promotion of the right to gender equality is a gradual process that should not be undertaken overnight but on a continuous basis. It can be drawn from the findings in this study that the law “alone” is limited in its application in addressing socio-legal problems. Despite the limitation, the use of law is not a goal that should be discarded as it lays the framework for the determination of the significance of legal measures for social change.

The adoption of the 1996 Constitution in recognition of the historic imbalances that South Africa inherited from its past, affirms the commitment to the promotion of human rights including the right to equality. The emphasis on the right to equality in the Constitution and other related laws discussed in the study represents a guarantee for both men and women the right to equal treatment and benefit of the law. The point of departure is based on the premise that views the law as an instrument that has the potential to effect social change. The primary purpose is to determine various factors that are an impediment to the significance of the law for the promotion of the right to gender equality. The objective is to establish with sufficient certainty the substantive conception of the right to gender equality in post-apartheid South Africa. This dissertation examines and provides a brief overview of the development and the intersection of the principles of non-discrimination at the international and regional spheres and their influence in broadening the scope for enforcement of gender equality in South Africa. It provides a literature review and an analysis of the equality jurisprudence of South Africa’s Constitutional Court and its influence to the lowest structures of the judiciary in promoting the right to gender equality. This undertaking is reinforced by the primary purpose in this study of examining various factors that are an impediment to the promotion of the right to gender equality. It discovers that the establishment of a “just society” is difficult where the significance of the law is affected by the lack of legal knowledge and other related factors identified in the study. It establishes that the promotion of the right to gender equality is a gradual process that should not be undertaken overnight but on a continuous basis. It can be drawn from the findings in this study that the law “alone” is limited in its application in addressing socio-legal problems. Despite the limitation, the use of law is not a goal that should be discarded as it lays the framework for the determination of the significance of legal measures for social change.