Text in Afrikaans / Constitutional, International & Indigenous Law / LLM

Afrikaans text. / Public, Constitutional, & International / LLM

Afrikaans text. / Public, Constitutional, and International / LLM

Text in Afrikaans / Constitutional, International and Indigenous Law / LLM

Text in Afrikaans / The Convention on the Rights of the Child was adopted by the United Nations General Assembly on 29 November 1989. Included in the inherent rights set out in the Convention is the right to the highest attainable standard of health. In implementing the Convention states parties must refer to the requirements of article 2 of the Convention, which places them under a duty to respect and ensure the rights in the Convention to each child. The term “respect” implies a duty of good faith to refrain from actions which would breach the Convention. The “duty to ensure”, however, requires states parties to take whatever measures are necessary in order to enable children to enjoy their rights. A state party must also review its legislation in order to ensure that domestic law is consistent with the Convention. South Africa showed commitment to protecting and promoting children’s health when it ratified the United Nations Convention on the Rights of the Child in 1995 and subsequently adopted the Constitution of the Republic of South Africa, 1996, which includes provisions guaranteeing the health rights of children. South Africa also showed commitment to give legislative effect to the protection and promotion of children’s health by reviewing the Health Act 63 of 1977 (reviewed as the National Health Act 61 of 2003) and the Child Care Act 74 of 1983 (reviewed as the Children’s Act 38 of 2005). The review of the Child Care Act 74 of 1983 revealed that the act is virtually silent on the issue of child health. This led to the decision to identify and evaluate existing policy and legislation, as well as pending relevant law reform and policy affecting child health in order to assess how well South African legislation addresses the issue. The research showed that although much legislation exists, none provides comprehensively for child health rights. The legislation that does exist contains obvious gaps. Most importantly, there is no reference to the core minimum requirements for the state in providing for the health of children, particularly in the way of health services and nutrition. Further, there is a complete lack of legislation which protects the health needs of disabled children. A comparative study was also undertaken. Legislation of India and Canada were evaluated in order to make recommendations as to how the gaps in South African legislation can be rectified. However, the research showed that South Africa has made far more significant progress in promoting a rightsbased approach to children’s health in legislation. In order to ensure that the health rights of children are protected and promoted, I propose more comprehensive legislative protection. / Private Law / LL.D.

Text in Afrikaans / The Convention on the Rights of the Child was adopted by the United Nations General Assembly on 29 November 1989. Included in the inherent rights set out in the Convention is the right to the highest attainable standard of health. In implementing the Convention states parties must refer to the requirements of article 2 of the Convention, which places them under a duty to respect and ensure the rights in the Convention to each child. The term “respect” implies a duty of good faith to refrain from actions which would breach the Convention. The “duty to ensure”, however, requires states parties to take whatever measures are necessary in order to enable children to enjoy their rights. A state party must also review its legislation in order to ensure that domestic law is consistent with the Convention. South Africa showed commitment to protecting and promoting children’s health when it ratified the United Nations Convention on the Rights of the Child in 1995 and subsequently adopted the Constitution of the Republic of South Africa, 1996, which includes provisions guaranteeing the health rights of children. South Africa also showed commitment to give legislative effect to the protection and promotion of children’s health by reviewing the Health Act 63 of 1977 (reviewed as the National Health Act 61 of 2003) and the Child Care Act 74 of 1983 (reviewed as the Children’s Act 38 of 2005). The review of the Child Care Act 74 of 1983 revealed that the act is virtually silent on the issue of child health. This led to the decision to identify and evaluate existing policy and legislation, as well as pending relevant law reform and policy affecting child health in order to assess how well South African legislation addresses the issue. The research showed that although much legislation exists, none provides comprehensively for child health rights. The legislation that does exist contains obvious gaps. Most importantly, there is no reference to the core minimum requirements for the state in providing for the health of children, particularly in the way of health services and nutrition. Further, there is a complete lack of legislation which protects the health needs of disabled children. A comparative study was also undertaken. Legislation of India and Canada were evaluated in order to make recommendations as to how the gaps in South African legislation can be rectified. However, the research showed that South Africa has made far more significant progress in promoting a rightsbased approach to children’s health in legislation. In order to ensure that the health rights of children are protected and promoted, I propose more comprehensive legislative protection. / Private Law / LL.D.

The scourge of HIV/AIDS is ravaging our communities; many children have lost their parents to this pandemic. The death of parents because of this pandemic has resulted in the emergence of a new phenomenon of child-headed households. This paper seeks to examine the rights of children in child-headed households as entrenched in section 28(1)(b) and (c) of the Constitution. Once the rights of children in child-headed households are ascertained, the state’s duty to give effect to these rights is investigated. In the analysis of the rights, the socio-economic rights jurisprudence of the Constitutional Court is considered. The paper further argues that the state gives effect to the rights of children in child-headed households through legislation and policy. As such, the paper takes a closer look at the legislation and policies that seek to give effect to the rights of children in child-headed households as enumerated in section 28(1)(b) and (c) and gaps in that legislation and policy are highlighted. In conclusion, proposals are made that will assist the state to give effect to the rights of children in child-headed households as set out in the Constitution. / Private Law / LL.M.

The scourge of HIV/AIDS is ravaging our communities; many children have lost their parents to this pandemic. The death of parents because of this pandemic has resulted in the emergence of a new phenomenon of child-headed households. This paper seeks to examine the rights of children in child-headed households as entrenched in section 28(1)(b) and (c) of the Constitution. Once the rights of children in child-headed households are ascertained, the state’s duty to give effect to these rights is investigated. In the analysis of the rights, the socio-economic rights jurisprudence of the Constitutional Court is considered. The paper further argues that the state gives effect to the rights of children in child-headed households through legislation and policy. As such, the paper takes a closer look at the legislation and policies that seek to give effect to the rights of children in child-headed households as enumerated in section 28(1)(b) and (c) and gaps in that legislation and policy are highlighted. In conclusion, proposals are made that will assist the state to give effect to the rights of children in child-headed households as set out in the Constitution. / Private Law / LL.M.

Afrikaans text / Suid-Afrika het ‘n ver pad gekom sedert die 16de eeu in die erkenning en ontwikkeling van kinderregte. Kinderregte word vandag ten volle erken in die Grondwet, wat die hoogste gesag in die land is. Hierdie studie het ten doel om die beskerming van kinderregte in die Suid-Afrikaanse Reg te ondersoek, met verwysing na die rol wat internasionale reg, soos die United Nations Convention on the Rights of the Child (“die Konvensie”) en die African Charter on the Rights and Welfare of the Child 1990 (“Afrika Handves”) in die ontwikkeling van kinderregte gespeel het. Spesifieke voorskrifte ingevolge waarvan die regte van kinders beskerm word is ondersoek,insluitend artikel 28 van die Grondwet en sekere bepalings van die Kinderwet. Weens die beperkte omvang van hierdie verhandeling, is sekere afgebakende voorbeelde uit die Kinderwet ondersoek met spesifieke verwysing na kinders se regte en tradisionele waardes soos manlike besnydenis, vroulike besnydenis en maagdelikheidstoetse. Daar is gekyk of die praktiese probleme op regeringsvlak, byvoorbeeld die voorsiening en befondsing van maatskaplike dienste, die implementering van die bepalings van die Kinderwet vertraag. Skrywer kom tot die slotsom dat die bepalings van die Kinderwet alleenlik nie voldoende is om effektiewe beskerming aan sekere groepe kinders te verleen nie en hierdie probleme lei daartoe dat kinderregte nie behoorlik gerealiseer en geïmplementeer word nie, en dat daar nie ‘n behoorlike balans tussen die regte en verantwoordelikhede van die kind, die ouers en die staat bereik word nie. Moontlike oplossings vir die probleem en tekortkominge in die uitvoering van die Kinderwet word voorgestel in die slot hoofstuk. / South Africa has come a long way since the 16th century in the recognition and development of children's rights. Children's rights are now fully recognized in the Constitution, the supreme authority in the country. This study aims to investigate the protection of children's rights in South African law, with reference to the role of international law, such as the United Nations Convention on the Rights of the Child and the African Charter on the rights and Welfare of the child 1990, in the development of children's rights. Specific provisions under which the rights of children protected is examined, including Section 28 of the Constitution and certain provisions of the Children’s Act. Due to the limited scope of this paper, some designated examples from the Children’s Act are examined with particular reference to children's rights and traditional values such as male circumcision, female circumcision and virginity testing. It is looked at if whether the practical problems experienced on government level, the provision and funding of social services delay the implementation of the provisions of the Children's Act .Author comes to the conclusion that the provisions of the Children alone is not sufficient to ensure effective protection of the rights of certain groups of children and that these problems led to children's rights not properly realized and implemented, and that a proper balance between the rights and responsibilities of the child, the parents and the state is not reached. In the concluding chapter possible solutions to the problems and shortcomings in the implementation of the Children’s Act is suggested. / Jurisprudence / LLM

Afrikaans text / Suid-Afrika het ‘n ver pad gekom sedert die 16de eeu in die erkenning en ontwikkeling van kinderregte. Kinderregte word vandag ten volle erken in die Grondwet, wat die hoogste gesag in die land is. Hierdie studie het ten doel om die beskerming van kinderregte in die Suid-Afrikaanse Reg te ondersoek, met verwysing na die rol wat internasionale reg, soos die United Nations Convention on the Rights of the Child (“die Konvensie”) en die African Charter on the Rights and Welfare of the Child 1990 (“Afrika Handves”) in die ontwikkeling van kinderregte gespeel het. Spesifieke voorskrifte ingevolge waarvan die regte van kinders beskerm word is ondersoek,insluitend artikel 28 van die Grondwet en sekere bepalings van die Kinderwet. Weens die beperkte omvang van hierdie verhandeling, is sekere afgebakende voorbeelde uit die Kinderwet ondersoek met spesifieke verwysing na kinders se regte en tradisionele waardes soos manlike besnydenis, vroulike besnydenis en maagdelikheidstoetse. Daar is gekyk of die praktiese probleme op regeringsvlak, byvoorbeeld die voorsiening en befondsing van maatskaplike dienste, die implementering van die bepalings van die Kinderwet vertraag. Skrywer kom tot die slotsom dat die bepalings van die Kinderwet alleenlik nie voldoende is om effektiewe beskerming aan sekere groepe kinders te verleen nie en hierdie probleme lei daartoe dat kinderregte nie behoorlik gerealiseer en geïmplementeer word nie, en dat daar nie ‘n behoorlike balans tussen die regte en verantwoordelikhede van die kind, die ouers en die staat bereik word nie. Moontlike oplossings vir die probleem en tekortkominge in die uitvoering van die Kinderwet word voorgestel in die slot hoofstuk. / South Africa has come a long way since the 16th century in the recognition and development of children's rights. Children's rights are now fully recognized in the Constitution, the supreme authority in the country. This study aims to investigate the protection of children's rights in South African law, with reference to the role of international law, such as the United Nations Convention on the Rights of the Child and the African Charter on the rights and Welfare of the child 1990, in the development of children's rights. Specific provisions under which the rights of children protected is examined, including Section 28 of the Constitution and certain provisions of the Children’s Act. Due to the limited scope of this paper, some designated examples from the Children’s Act are examined with particular reference to children's rights and traditional values such as male circumcision, female circumcision and virginity testing. It is looked at if whether the practical problems experienced on government level, the provision and funding of social services delay the implementation of the provisions of the Children's Act .Author comes to the conclusion that the provisions of the Children alone is not sufficient to ensure effective protection of the rights of certain groups of children and that these problems led to children's rights not properly realized and implemented, and that a proper balance between the rights and responsibilities of the child, the parents and the state is not reached. In the concluding chapter possible solutions to the problems and shortcomings in the implementation of the Children’s Act is suggested. / Jurisprudence / LLM