A research report submitted to the Faculty of Commerce, Law and Management in partial fulfilment of the requirements for the degree of Master of Commerce (Specializing in Taxation), Johannesburg, 2016 / The Tax Administration Act 28 of 2011 (TAA) came into effect on the 1 October 2012 and brought with it significant changes to the South African tax administrative regime, extending the powers of South African Revenue Service (SARS) while also indirectly emphasising taxpayers’ rights. This research report examines the impact that this ‘new legislation’ has had on taxpayers, more especially the procedural and administrative rights of taxpayers. This research report evaluates inherent procedural rights of taxpayers as contained in the Constitution of the Republic of South Africa versus the current provisions in TAA and the remedies available to taxpayers should their rights be infringed upon. The research report extends to instances of good tax administrative practices in a few OECD countries and finally concludes with comments on the future of tax administration in South Africa. / MT2017

Thesis ( LLM.) --University of Limpopo, 2014 / The Enforcement of the right to housing is one of the greatest challenges facing South African Government. The slow rate of housing delivery has forced society to suspect corruption. Communities from different provinces have demonstrated, through strikes and protest to their local municipalities, to register their discontent about the slow pace of housing delivery. The study focuses more on groups of people who are unable to address their emergency housing needs from their own resources, such as, minors heading households, children without parents, elderly, disabled and unemployed people. The study further discusses the possible remedies to these vulnerable people when their right of access to adequate housing has been infringed, especially during eviction.

This dissertation is an evaluation of the concept of a minimum core content to the constitutional right to health, with particular reference to HIV-positive persons in South Africa. The analysis involves an assessment of what the minimum core entails; whether such a formulation is necessary in the South African health context; the application of the concept in national and international law; as well as enforcement and implementation in the South African context. An appraisal of the South African social reality reveals the extent of the suffering of HIV-positive individuals and the difficulties experienced in accessing health care, especially for the vulnerable and disempowered. The problem is exacerbated by a critical inadequacy in national jurisprudence which fails to generate certainty in respect of the minimum, basic entitlements of affected people. Such a shortcoming maligns transformative constitutionalism, which requires the judiciary to develop a construction of human rights that accords with the canons of the Constitution. It is argued that one such course of action is the adoption of the minimum core, which prescribes a basic level of human rights that is guaranteed to all people – and which may withstand legislative challenge on the basis of resource constraints or progressive realisation. Reference to international law, in terms of Section 39(1) of the Constitution, assists us to overcome the shortcoming in domestic legislation in this regard. Of particular relevance is covenantal guidance offered by the ICESCR, and its guidelines of interpretation, which include the CESCR General Comments and the WHO recommendations. It is postulated that a minimum obligation to HIV-positive individuals under the right to health encompasses the duty of treatment and prevention and control in respect of the epidemic, on a non-discriminatory basis. Enforcement and implementation of such core obligations must be strictly and timeously effected. Of crucial importance in such a process is a competent judiciary that is able to resist an undue deference to the legislature. A review of court judgments, however, reveals an inadequate judicial approach to the implementation of socioeconomic rights and an appeal is made to the Constitutional Court to re-commit itself to an interpretation of the Bill of Rights that accords with Constitutional values, such as uBuntu. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2014.

With this piece of work an attempt is made to have a objective evaluation of the influence of South Africa's Bill of rights on the common law of Defamation. the following aspects are being highlighted: The general application of the Bill of Rights and its relevant sections; A comparative study of the application of Bill of Rights with special reference to the United States, Canada, India and Germany; The law of Defamation under a new legal order, with specific reference to whether the Bill of Rights does apply to Defamation and if so how will it change the current common law of Defamation. / Text in Afrikaans / Law / LL.M.

M.Ed. (Sociology of Education) / This study is part of a broader research project that deals with educating towards human rights. The purpose of this study was to determine the matriculants' perception of the duty of the State and the responsibility of the individual towards the State. It is also aimed at informing readers about the rights and duties of the State and individuals as far as education is concerned.

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.

The South African Refugees Act1 makes a distinction between an asylum seeker and a refugee. The Act defines an asylum seeker as “a person who is seeking recognition as a refugee in the Republic”. A refugee on the other hand, is a person “who has been granted asylum” in the Republic.2 The legal position in South Africa is that before a person is recognized as a refugee, he or she is protected by the Bill of Rights to a certain extent. In the case of Lawyers for Human Rights v Minister of Home Affairs the Constitutional court confirmed that the protection afforded by the Bill of Rights applies to everyone, including illegal foreigners and asylum seekers.3 This means that asylum seekers and refugees are entitled to most of the rights in the Constitution except those specifically reserved for citizens. Practically though, a refugee enjoys more rights than an asylum seeker. It is therefore in the interest of asylum seekers to have their status as refugees determined. The process of applying for refugee status can be a challenge for those seeking refuge in the Republic of South Africa. For applicants coming from non-English speaking countries, language barrier can also present its own challenges. In terms of the Refugees Act, the first application is to the Refugee Reception Officer at the refugee reception office. The application must be made in person.4 When an asylum seeker is deemed fit to qualify for asylum, he or she will be issued with a permit in terms of section 22 of the Refugees Act. The permit allows the asylum seeker to temporarily reside in South Africa until the finalisation of the asylum claim. This permit does not mean that the asylum seeker is already recognised as a refugee. The permit is an indication that the asylum seeker’s application as a refugee is not yet finalised. The application is considered finalised when it has gone through the hearing before the Status Determination Officer and any review or appeal following from that decision. It is the Refugee Status Determination Officer who will grant asylum or reject the application.5 For people applying for refugee status, the determination by the Status Determination Officer may in itself mark the beginning of the process to be repatriated back to the country they were running away from in the first place. An aggrieved applicant can also apply to have the adverse decision reviewed or even lodge an appeal in accordance with the provisions of the Refugees Act.6 For as long as the application is still pending, the government cannot deport any asylum seeker. An asylum seeker who enters the Republic of South Africa, either through a port of entry or illegally faces many challenges before he or she could reach a refugee reception office. Those who come in through a port of entry face being turned away by Immigration Officers due to lack of documentation. Often, asylum seekers find it hard to reach the refugee reception offices as there is no co-operation between the Immigration Officers, the South African Police Service and the functionaries in the refugee reception offices. To make things worse, the Immigration Amendment Act has reduced the days from fourteen to five, for asylum seekers without valid documentations to reach any refugee reception office. Since refugee reception offices are located only in five cities in the country, these have conditioned asylum seekers and refugees to stay and make their living in those cities as they are required to make frequent renewal of their permit. The closure of some of the refugee reception offices like the Johannesburg refugee reception office has caused a major concern to asylum seekers and refugees. This persistent closure of refugee reception offices may be seen as a further persecution in the eyes of asylum seekers and refugees. The inability of the different functionaries to differentiate between asylum seekers and economic migrants adds to the problem concerning the process of refugee status determination. Instead of seeking to identify people in need of protection from persecution or events seriously disturbing public order, the process is used as an immigration control and this causes more people to be turned away or returned to countries where their lives may be at risk. The communication between the asylum seeker and all the functionaries of the Department of Home Affairs is very important. The lack of professional interpretation functionaries to help asylum seekers who need interpretation contributes to the problems asylum seekers face. Often, asylum seekers have to provide their own interpreters if the Department is unable to do so. The purpose of the study is to investigate the status determination process from a South African perspective and to make recommendations which will try to resolve the problem(s) identified. / Public, Constitutional, & International / LLM

This study evaluates the court's approach towards the interpretation of administrative justice with specific reference to Roman v Williams 1997(2) SACR 754(C). Section 33 of the Constitution Act 108 of 1996 guarantees the right to administration justice. The elements of this right are lawfulness, reasonableness and procedurally fairness. Our courts are bound constitutionally to promote, develop, advance and protect the fundamental rights. This study provides the most effective approach towards the development of the fundamental right in our democratic society where the Bill of Rights binds legislature, executive and judiciary. / Administrative Law / LL.M. (Administrative Law)