There is a perception among victims of crime, and people in general, in South Africa that the country’s laws favour and protect offenders. These people believe that offenders have more rights than victims which are derived from the Constitution of the country, and other legislative Acts of parliament. This view may sometimes lead to vigilantism and a total disregard of the law. The study will show that victims do have rights in the country’s legislations. The study briefly explains the sources of such laws, like the Constitution, the Victims Charter and selected provisions of some Acts of parliament. It is a fact that the section 35 of the Constitution provides in detail, the rights of the arrested, detained and accused. It is also submitted persons that there is no specific provision that talks about the rights of the victims of crime. However, that does not mean that such victims do not have rights in terms of the constitution. The rights of victims of crime are seen during the courts’ interpretation and application of rights mentioned in the Bill of Rights. The use of words like “everyone” and “any person” in the Bill of Rights also refers to victims of crime. Therefore, the Constitution is not victim-biased and offender-friendly. The Constitution protects everybody because it seeks to uphold the values of human dignity, equality, freedom and the African concept of ubuntu. The study discusses briefly the rights of victims as adopted by the Victims’ Charter. The Charter lists these rights, but does not explain how such rights are to be achieved. South Africa also developed a document called the Minimum Standards for Services for Victims of Crime which indicates how each right is to be achieved. The study also shows that South Africa had developed some Acts of parliament even before the adoption of the Victims Charter. South Africa claims that the Victims’ Charter is compliant with the Constitution and the United Nations Declaration of Basic Principles of Justice Abuse of Power of 1985. It is submitted that this statement is not entirely correct, especially with regards to the provision that deals with compensation. South Africa did not define compensation as defined by the United Nations Declaration. This can be seen as a dismal failure by South Africa to abide by the United Nations Declaration and this has resulted in more harm suffered by victims of crime. The study also discusses how rape victims benefit through the use of Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007. This begins with the changing of the definition of rape. The Act also deals with how rape victims can access antiretroviral drugs to prevent HIV/Aids infection. It explains limitations on the right to privacy of the accused, especially to compel him or her to undergo an HIV test. The HIV positive status of the accused can be used as an aggravating factor during sentencing in terms of UNAIDS policies. S v Nyalungu 2005 (JOL) 13254 (T) is a leading case in South Africa showing compliance with UNAIDS policies. Restorative justice mechanisms have been discussed to show positive movement by South Africa from a retributive justice system to a restorative justice system. The advantages of such mechanisms for victims have been discussed. The study also describes briefly some selected provisions of the Criminal Procedure Act of 1977 and how these provisions benefit victims of crime. These include sections 153, 170A, 297, 299A, 300 and 301. The study highlights some challenges that still exist and what innovations can be made. This includes recommendations which can be made to benefit victims of crime further. For example, an apology can be used as one of the important principles in the restorative justice system. It is submitted and recommended that truth and apology go hand in glove and the basic elements of forgiveness. South Africa can pride itself with regards to this approach especially during the Truth and Reconciliation Commission which was established in post-apartheid South Africa. The study concludes by saying that South Africa should set up a victim-compensation scheme. It is submitted that South Africa can afford such a scheme despite the problems identified.

Hate speech in South Africa creates a tension between the right to freedom of expression and the rights to human dignity and equality. The challenge is to achieve a balance between these competing rights in the context of the divisive past and the transformative constitutional ideal, in which reconciliation and respect for group difference are promoted. Freedom of expression, an individual right, must be construed in light of its underlying values, but regard must also be given to communitarian interests. The constitutional standard draws the initial line. The advocacy of hatred on four grounds and which constitutes incitement to cause harm is not constitutionally protected speech. Such speech undermines nation building, causes acrimony, and is not tolerated in the egalitarian society envisaged by the Constitution. The thesis formulates a principled legislative hate speech framework for South Africa at both human rights and criminal levels within the parameters of the constitutional mandate, as guided by the standard for hate speech restrictions in international law, and the Canadian regulatory model. An essential premise is that regulation requires a multi-faceted balancing enquiry. A holistic approach is proposed where factors such as respect for the dignity of the victims, autonomy for speakers, listeners and the wider community; the causal link between hate speech and hatred in a community; and the desire to achieve a diverse and harmonious society; amongst others, are considered. Failure to regulate hate speech constructively endorses hatemongers and promotes damaging speech at the expense of vulnerable groups. Regulation ensures that law sets the normative benchmark, affirms the protection of vulnerable groups within the social fabric and upholds social cohesion, inclusiveness and the equal citizenship of all individuals in society. The thesis contains a proposal for the enactment of legislation creating a self-standing hate speech crime for the advocacy of extreme hatred, shaped in accordance with international requirements and comparative foreign law, and structured in light of the distinction between hate crime and hate speech. The existing legal framework is unable to provide consistent and fitting redress for the severe harm caused by such speech, namely the fostering of an environment in which the stigmatisation of groups is promoted, their exclusion from society justified and intervention is needed to remedy the escalated levels of hatred and violence between different groups in society. PEPUDA, a remedial statute aimed at promoting transformation and substantive equality, is valuable, but its speech prohibitions are broad and imprecise. Consequently, their effectiveness is compromised and their constitutionality questioned. The thesis proposes recommendations for amendments to sections 7(a), 10(1) and 12 of PEPUDA. The aim is to ensure compliance with the international standard and to foster the optimal regulation of hate speech and other forms of damaging speech, including derogatory racial epithets, which undermine human dignity and equality and threaten national unity. It is intended for the two systems to complement one another and to create a legal framework aimed at addressing hate speech constructively and in context, promoting tolerance, respect for difference, reconciliation and transformation.

This treatise discusses the increasing of the procedural and substantive limitations on the employees’ right to strike. The Constitution permits the right to strike to be limited in terms of the laws of general application. The Labour Relations Act (LRA) is a good example. Such limitation must be reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom. The study sought to investigate whether further increasing the existing limitations on the right to strike unduly breaches employees’ Constitutional right to strike and the purpose of the LRA. Further, the study sought to find out whether the additional content requirements in the strike notice amount to importing into the LRA additional limitations on the fundamental right to strike that enjoys no textual support. Through an extensive literature review, the findings arguably show that indeed further increasing the limitations on the employees’ right to strike may unduly infringe their right to strike. Moreover, the increase of the content requirements in a strike notice creates an unnecessary hurdle to employees wishing to strike. One of the most important finding made is that instead further increasing the limitations on the right to strike, going back to the basics of negotiation to alleviate strikes, particularly wage-related strikes is vital. To achieve this, it is important for employers to re-establish social and individual relationships with their employees, whereby they become aware of the issues that employees face on a daily basis. Also, establishing proper workplace dialogue and forums would assist employers in becoming aware of employees concerns. This would thereby prevent strikes, as problems can be dealt with beforehand. The findings above informed in the recommendations at the end of the study.

During the fall of 1924, the British Columbia Legislature debated a bill that proposed banning the employment of white women and Asian men as servants in the same household. Although this piece of legislation (publicly known as the "Janet Smith Bill") never passed into law, it offers great insight into the racial and nationalist ideas that were dominant in 1920's British Columbia. Drawing on postmodern theories of 'discourse' and 'knowledge,' I have located the Janet Smith Bill within larger intellectual and political structures to understand what the bill's goal of "protecting white women" means. My thesis identifies two primary meanings of this bill. First, the Janet Smith Bill is meant to prevent the production of Eurasian children in British Columbia by keeping Asian men and young white women physically apart. Scientific "knowledge" dictated that such offspring would only produce social chaos in the country. The second primary meaning of the bill is based on the nationalist drive to keep British Columbia "white" by increasing the white birthrate. Moral reformers and politicians feared that young white women would become drug addicts through close association with 'Orientals,' consequently forsaking their duty as "mothers of the race." Protecting white women, according to this discourse, meant protecting their ability and opportunity to produce healthy white babies. The Janet Smith Bill, therefore, was meant to produce and reproduce a "white British Columbia." / Arts, Faculty of / History, Department of / Graduate

This thesis examines Alberta and Manitoba sugar beet farms as carceral sites for displaced Japanese Canadians during the Second World War. Previous literature has focused on the relocation of Japanese Canadians but has not addressed the many distinct sites that marked the boundaries of incarceration for Japanese Canadians. By exploring issues of citizenship and history, this thesis examines the many ways that regulation was imposed on Japanese Canadians by state and extra-state organizations and individuals. This subject was explored using critical discourse analysis of the Calgary Herald and the Winnipeg Free Press for a twelve month period beginning February 1, 1942, two months prior to the announcement of the Sugar Beet Programme and ending January 31, 1943, as original beet contracts covered only the 1942 crop year. My analysis follows two major themes: sugar beet farms as carceral sites and the use of citizenship narratives to both legitimize and erase Japanese Canadian labour. Utilizing Fbucault's notion of 'carceral', I show how disciplinary strategies were used to strip Japanese Canadians of their social, economic and political citizenship. While Japanese Canadians were never formally incarcerated, I argue that the term carceral needs to be reworked in order to include losses of liberty that are not formally sanctioned. I examine newspaper reports regarding official state policy, local community responses, protests and individual letters to the editors, and conclude that, indeed, Japanese Canadians underwent surveillance, supervision, constraint and coercion, all markers of incarceration. Citizenship discourses were a crucial tool of both state and non-state agencies. Further, 'whiteness' was central to these discourses. Citizenship discourses such as patriotism and duty were directed at 'white' citizens to encourage their acceptance of Japanese Canadian relocation. Further, these same discourses were used to recruit a volunteer 'white' labour force. However, despite the significant contributions of Japanese Canadians to this wartime industry, never were these types of discursive rewards or the subsequent material benefits offered to them. Further, the voices of Japanese Canadians were also silenced by the media. Thus, Japanese Canadians became invisible and silent workers who could claim no voice and thus, no membership in the nation. / Arts, Faculty of / Sociology, Department of / Graduate

This thesis is concerned with those 'social' rights that relate to the provision of the basic necessities of life; that is the right to an adequate standard of living (including food, clothing and shelter), the right to health and the right to education. The International Covenant on Economic, Social and Cultural rights (ICESCR) recognises obligations pertaining to the progressive realisation of these rights, whilst leaving the method of implementation within domestic discretion. The Canadian Charter of Rights and Freedoms only accords domestic constitutional protection to civil rights, leaving the implementation of these social rights within government discretion. This study will examine what has, in the Canadian experience, proven to be the practical consequences of adopting such a policy of 'selective constitutionalisation,' that puts social rights by definition outside the ambit of legal enforcement. Firstly, it will examine the court's approach to cases that have, in the absence of constitutionalised social rights, attempted to indirectly invoke social rights by encouraging a positive social interpretation of the right to equality and the right to life, liberty and security of the person, and will illustrate that the courts have failed to interpret these rights so as to indirectly protect social rights. Secondly, it will consider the relationship between legal, political and social discourse, illustrating that, in light of the non- constitutionalised status of social rights, the values underlying these rights have been marginalised in political and social discourse, facilitating reforms that have restructured and eroded the welfare state, reducing the realisation of social rights within Canada. Thirdly, it will consider the practicability of adopting the alternative approach of according equal constitutional protection and justiciable status to social rights, through an examination of the theoretical literature and the approach taken to social rights under the Final Constitution of the Republic of South Africa 1996. It will illustrate that the philosophical arguments that have been utilised to support the nonconstitutionalised status of social rights are no longer sustainable and that the constitutional experience of South Africa provides evidence that a practical alternative to the position adopted in Canada exists. / Law, Peter A. Allard School of / Graduate

Reflete-se acerca da aplicação da técnica da ponderação (máxima parcial do princípio da proporcionalidade em sentido amplo) por tribunais em nosso ordenamento jurídico. Objetiva-se a análise da correspondência entre a ponderação utilizada pelos tribunais e a proposta teórica de Robert Alexy (2008). Os direitos fundamentais possuem, essencialmente, estrutura normativa de princípios, portanto são mandamentos de otimização e sua efetivação sujeita-se à máxima satisfação, versando-se nas situações fáticas e jurídicas do caso concreto. O direito fundamental ao meio ambiente ecologicamente equilibrado tem estrutura normativa de princípio e, por esse motivo, frequentemente, entra em rota de colisão com outros direitos e bens constitucionalmente protegidos. No presente estudo, avalia-se o conflito do Direito ao Meio Ambiente com os Direitos Fundamentais da Propriedade e da Livre Iniciativa. Sob essa perspectiva, pretendeu-se responder o problema de pesquisa, qual seja, se o uso da ponderação pelos tribunais brasileiros, nos casos de colisão entre o meio ambiente com os direitos fundamentais da propriedade e da livre iniciativa, é adequado e satisfaz a teoria proposta por Robert Alexy, ou confirma a prática do voluntarismo e da arbitrariedade jurisdicional, colocando em risco a efetividade desses direitos fundamentais. No primeiro capítulo, elucida-se sobre a diferenciação normativa entre regras e princípios, além de tratar-se da colisão de princípios, da proporcionalidade e da ponderação. No segundo capítulo trata-se especificamente dos três direitos fundamentais em questão, quais sejam: direito fundamental ao meio ambiente ecologicamente equilibrado, direito fundamental à propriedade e direito fundamental à livre iniciativa. Adota-se o método de pesquisa indutivo-analítico, através da pesquisa empírica de jurisprudências (do TJ/RS, TJ/SC, TJ/AL, TJ/PA e do STF), partindo-se de categorias de pesquisa, quais sejam, a “colisão entre o direito fundamental ao meio ambiente com o direito fundamental à propriedade” e “colisão entre o direito fundamental ao meio ambiente com o direito fundamental à livre iniciativa”. Posteriormente, proceder-se-á com análise a partir das subcategorias de pesquisa “colisão”, “proporcionalidade”, “adequação”, “necessidade” e “ponderação”. Dentre os oito casos analisados, verificou-se a perfeita prática da ponderação e das demais máximas parciais da proporcionalidade em apenas um dos julgados. / It reflects about the application of the weighting technique (partial principle of proportionality in the broad sense) by courts in our legal system. The objective of this paper is to analyze the correspondence between the weighting used by the courts and the theoretical proposal of Robert Alexy (2008). Fundamental rights essentially have a normative structure of principles, so they are commandments of optimization and their effectiveness is subject to maximum satisfaction, dealing with the factual and legal situations of the concrete case. The fundamental right to the ecologically balanced environment has a normative structure of principle and, for this reason, often collides with other constitutionally protected rights and assets. In the present study, the conflict of the Right to the Environment with the Fundamental Rights of Property and of the Free Initiative is appreciated. From this perspective, the aim was to answer the research problem, namely, whether the use of the Brazilian courts' weighting in cases of collision between the environment and the fundamental rights of property and free initiative is adequate and satisfies the theory Proposed by Robert Alexy, or confirms the practice of voluntarism and jurisdictional arbitrariness, putting at risk the effectiveness of these fundamental rights. In the first chapter, it elucidates on the normative differentiation between rules and principles, besides treating the collision of principles, proportionality and weighting. The second chapter deals specifically with the three fundamental rights in question, namely: the fundamental right to an ecologically balanced environment, a fundamental right to property and a fundamental right to free enterprise. The method of inductive-analytical research, through the empirical research of jurisprudence (TJ / RS, TJ / SC, TJ / AL, TJ / PA and STF) is adopted, starting from research categories, the "collision between the fundamental right to the environment with the fundamental right to property" and "collision between the fundamental right to the environment with the fundamental right to free enterprise". Subsequently, we will analyze the subcategories of research "collision", "proportionality", "adequacy", "necessity" and "weighting". Among the eight cases analyzed, we verified the perfect practice of weighting and the other partial maxims of proportionality in only one case law.

O pensamento jurídico tem apresentado dinamismo nas discussões em torno de um novo paradigma de teoria do Direito. O modelo positivista estruturalista consolidado por Hans Kelsen (a norma jurídica que regula o comportamento humano, o dever ser), eminentemente lógico-dedutivo, preconiza um método subsuntivo de aplicação das normas jurídicas, ou seja, dedutivo e discricionário, uma vez que permite ao intérprete buscar a forma como irá aplicar a norma, dentre as várias possibilidades reconhecidas pelo positivismo jurídico, quando as diretrizes normativas que sustentam o ordenamento jurídico (modelo de regras) não são suficientes para atingir a eficácia plena na solução de um caso concreto. As questões das lacunas de abertura e dos déficits de indeterminação no ordenamento jurídico brasileiro apresentados pelo modelo constitucionalista, especialmente as questões que envolvam as colisões de direitos fundamentais, favorecem uma interpretação expansiva das disposições normativas. A subsunção e o modelo discricionário, característicos do discurso lógico-dedutivo, ou seja, do pensamento positivista que marcou a base da teoria Kelsiana são contestados a partir da dialética e do discurso prático geral proposto por Alexy. A perspectiva da separação das normas jurídicas em regras (modelo adotado por Hart) e princípios (modelo adotado por Dworkin) traz à tona um modelo jurídico-político que permite a aplicação das normas jurídicas pelo julgador através da utilização de um raciocínio indutivo (princípios), não exclusivamente dedutivo (regras) nas decisões judiciais. O pensamento de Dworkin serve de referência à teoria da fundamentação jurídica de Alexy. Nessa perspectiva, Alexy defende, através do seu discurso jurídico prático, a introdução de princípios para justificar os déficits de racionalidade e discricionariedade sob uma pretensão de correção do discurso jurídico, superando a relação estreita entre o Direito e a Moral e propondo um amplo redimensionamento na estrutura da ordem jurídica positivista. Esse modelo de raciocínio jurídico vem sofrendo uma série de críticas e debates na esfera político-jurídico e ideológico, uma vez que seu discurso prático também é marcado por lacunas de racionalidade e subjetividade, especialmente nos casos que envolvem as colisões de direitos fundamentais. Partindo da compreensão inicial de que os direitos fundamentais são passíveis de colisão e de ponderação, configurando-se posições jurídicas definitivas e prima facie, conforme o pensamento de Alexy, a questão da resolução dessas colisões exige, por parte do intérprete, o estabelecimento de critérios e parâmetros que sejam suficientemente sólidos e racionais e que possam conduzir para uma solução adequada, motivada ou intersubjetivamente controlável, sem levar ao risco de subjetivismo e decisionismo judiciais. Insta salientar que a teoria dos princípios proposta por Alexy não consegue garantir toda a complexidade do sistema dos direitos fundamentais, especialmente a possibilidade de assegurar a resolução de colisões entre o direito fundamental ao meio ambiente sadio e ecologicamente equilibrado com outros direitos fundamentais de maneira juridicamente segura. Além dessas formulações filosófico-doutrinárias inspiradas na obra Teoria dos Direitos Fundamentais de Alexy, propõe-se, também, analisar o fenômeno da colisão de direitos fundamentais a partir de casos concretos apresentados na jurisprudência do Supremo Tribunal Federal com o objetivo de verificar a sua atuação nas decisões que envolvam o juízo de ponderação de bens. Nesse sentido, uma vez que a Teoria dos Direitos Fundamentais de Alexy não satisfaz plenamente as hipóteses de colisão de direitos fundamentais, propõe-se, com este trabalho, verificar até que ponto o princípio da ponderação de bens permite conferir uma racionalidade à decisão judicial nos casos em que o direito ao meio ambiente ecologicamente equilibrado colide com outros direitos fundamentais. / The legal thought has shown dynamism in discussions about a new law theory paradigm. The structuralist consolidated positivist model by Hans Kelsen (the legal standard governing human behavior, should be), eminently logical-deductive, advocates a subsuntivo method of application of legal rules, ie, deductible and discretionary, as it allows the interpreter look how it will apply the rule, among the various possibilities recognized by legal positivism, when the normative guidelines that underpin the legal system (model rules) are not sufficient to achieve full effectiveness in solving a case. The issues of opening gaps and indeterminacy deficits in Brazilian law submitted by the constitutional model, especially the issues involving fundamental rights of collisions, favor an expansive interpretation of the regulatory provisions. The subsumption and the discretionary model, characteristic of logical-deductive discourse, that is, of positivist thinking that marked the foundation of Kelsiana theory are contested from the dialectic and practical general discourse proposed by Alexy. The prospect of the separation of legal provisions in rules (model adopted by Hart) and principles (model adopted by Dworkin) brings up a legal-political model that allows the application of legal rules by the judge through the use of an inductive reasoning (principles) not exclusively deductive (rules) in judicial decisions. The thought of Dworkin is a reference to the theory of legal reasoning of Alexy. From this perspective, Alexy argues, through its practical legal discourse, the introduction of principles to justify the rationality deficits and discretion in a correction claim of legal discourse, exceeding the close relationship between the Right and the Moral and proposing a broad resizing in structure of positivist law. This legal reasoning model has suffered a lot of criticism and debate in the political-legal and ideological sphere, since its practical discourse is also marked by gaps of rationality and subjectivity, especially in cases involving fundamental rights of collisions. From the initial understanding that fundamental rights are subject to collision and weighting, setting up final and prima facie legal positions, as the thought of Alexy, the issue of resolution of such collisions requires, on the part of the interpreter, the establishment of criteria and parameters that are sufficiently solid and rational and that could lead to an appropriate solution, motivated or intersubjectively controllable, without the risk of subjectivism and judicial decisionism. Calls point out that the theory of principles proposed by Alexy can not guarantee all the complexity of fundamental rights system, especially the ability to ensure the resolution of collisions between the fundamental right to a healthy and ecologically balanced environment with other fundamental rights of legally safe way. In addition to these philosophical and doctrinal formulations inspired by the work Theory of Fundamental Rights of Alexy, it is proposed also to analyze the phenomenon of the fundamental rights of an impact from concrete cases presented in the jurisprudence of the Supreme Court in order to verify its performance in decisions involving the judgment of weighting assets. In this sense, as the Theory of Fundamental Rights of Alexy does not fully satisfy the assumptions of fundamental rights of collision, it is proposed, with this work, check to what extent the principle of weighting assets allows confer rationality judicial decision in where the right to an ecologically balanced environment collides with other fundamental rights.

No description available.

Transgender law and politics may seem to have been nonexistent prior to the 21st century. This dissertation argues that the timeline of transgender progress should begin much earlier and the measure of success should be recalibrated. As early as 1955, states enacted legislation allowing transsexual persons to change their legal sex status. By the end of the 20th century, over half of America’s states had such statutes. I argue that these should be acknowledged as LGBT civil rights successes as significant as any other. Most early sexual orientation anti-discrimination laws omitted protections for trans people, based either on a belief that they were not attainable or that trans issues were not even a proper gay rights concern. Often engaging in direct confrontation, trans people in Minnesota demonstrated that that exclusion was not the only possible civil rights path, securing inclusion in local law in 1975 and in state law two decades later, while other states still maintained an exclusionary mindset. The lesson trans people learned was that if they were not included in such legislation from the outset, the likelihood of being added later was slim. They applied this knowledge to civil rights efforts at the state and federal levels. Gradually, more states did become inclusive, but not until 2007 did a federal proposal include trans-inclusive language. Paradoxically, the circumstances of its failure exacerbated fissures within the LGBT community but also brought most of the community together in favor of inclusion to a degree previously unimaginable.