A dissertation submitted in fulfilment of the requirements for the degree: Masters of Laws LLM by Dissertation (Research) LAWS8002 Faculty of Commerce, Law and Management - School of Law University of Witwatersrand, 2017 / Inmates’ rights are of utmost importance in shaping a democratic society based on human dignity, equality and freedom. The State cannot unjustifiably infringe on inmates’ rights and continue to play an active role in exacerbating correctional centre conditions. This study is of significance in confronting the reality of the plight of inmates’ rights violations in a country that is plagued with crime and scepticism towards acknowledging inmates’ rights. The dissertation offers a critical analysis of the impact of South Africa’s correctional centre conditions on inmates’ human rights in a constitutional democracy. The study unlocks three key correctional centre conditions that impact on inmates’ rights. These three correctional centre conditions have been identified as overcrowding, gangsterism and sexual violence, and access to healthcare facilities. In delving deeper into each of the aforementioned correctional centre conditions, international, regional and statutory instruments were examined. Thus, the dissertation also considered the extent of South Africa’s compliance with its international human rights and constitutional obligations to protect and enforce inmates’ rights. The study has investigated the State’s accountability in relation to South Africa’s infringement on inmates’ rights. This endeavour was realised by tracing trends and statistics from State reports. An enquiry into ground-breaking case law addressing the impact of correctional centre conditions on inmates’ rights demonstrated the need for, inter alia, Constitutional Court litigation as a form of recourse for inmates and emphasised the State’s responsibility to prohibit the cruel, inhuman and degrading punishment of inmates. The dissertation has observed that over a period of 20 years of democracy, South Africa’s correctional centre conditions have severely impacted on inmates’ rights directly and indirectly. It concludes that firstly, the primary problem of overcrowding is a global phenomenon and that there is no single solution to fully eradicate its spiralling consequences. Overcrowding infringes on inmates’ foundational rights - rights to accommodation, fair trial, food and privacy. Secondly, the impact of gangsterism and sexual violence in South African correctional centres has severely infringed on inmates’ rights and case law evidences that this correctional centre condition has been 6 ruled as cruel, inhuman and degrading punishment by the United Nations Human Rights Committee. This study observes that the incidence of rape in correctional centres is a common practice and there is a greater risk of transmission of communicable diseases. In the treatment of these communicable diseases, an inmate is dependent on State healthcare facilities. Thirdly, the dissertation concludes that there have been specific instances where there was limited or no access to healthcare facilities which infringed on an inmates’ right to healthcare and life. In this regard, the Constitutional Court has held the State accountable for the infringement of an inmate’s right to access healthcare facilities. Therefore, this dissertation clearly illustrates that South Africa does not comply with its international, regional and domestic obligations. Practical recommendations for reform of South Africa’s correctional centre conditions are then offered so as to prevent the infringement of inmates’ human rights. / XL2018

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, and International / LL. M.

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.

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)

The South African Constitution, with its Bill of Rights, represents a decisive break with the past and a great advance by South Africans in reclaiming their human dignity and fundamental freedoms. Before 1993 punishment of crime was defined by the social order which had been designed under the apartheid government; prisoners were generally subjected to cruel and degrading treatment while criminal suspects could be detained indefinitely and without trial. The penal system was to some extent directed at controlling and regulating the conduct of Blacks. The constitutional dispensation has resulted in a re-look at our penal policy and has placed great emphasis on the rights of prisoners. These rights flow from the rights to equality, dignity and liberty. The Constitution has entrenched certain rights of criminal suspects, including the right to a fair trial. Legislation has been introduced to ensure compliance with the constitutional imperatives. The new dispensation has given rise to debate on many issues, and facilitated a rise of a victims’ movement seeking to promote victim interests. This movement has noted that offenders and alleged offenders enjoy a series of constitutional rights, and that corresponding rights for crime victims need to be introduced. Victims are unlikely to be accorded rights in the literal sense of the word; nevertheless, they need to be accommodated within the criminal justice system. This need has given birth to a charter for crime victims, a document that seeks to empower crime victims. The perception remains, however, that offenders and crime suspects still enjoy too much protection, to the detriment of victim interests. The development of victim rights is hampered by the adversarial nature of the country’s criminal justice system and the perception that victims have no role to play within the criminal process, other than as witnesses. The purpose of the thesis is to analyse the extent to which our Bill of Rights strikes a balance between the interests of alleged offenders and offenders on the one hand, and crime victims on the other. It also seeks to create awareness about the plight of crime victims and to make suggestions on possible solutions. / Criminal & Procedural Law / LLD (Criminal & Procedural Law)

The South African Constitution, with its Bill of Rights, represents a decisive break with the past and a great advance by South Africans in reclaiming their human dignity and fundamental freedoms. Before 1993 punishment of crime was defined by the social order which had been designed under the apartheid government; prisoners were generally subjected to cruel and degrading treatment while criminal suspects could be detained indefinitely and without trial. The penal system was to some extent directed at controlling and regulating the conduct of Blacks. The constitutional dispensation has resulted in a re-look at our penal policy and has placed great emphasis on the rights of prisoners. These rights flow from the rights to equality, dignity and liberty. The Constitution has entrenched certain rights of criminal suspects, including the right to a fair trial. Legislation has been introduced to ensure compliance with the constitutional imperatives. The new dispensation has given rise to debate on many issues, and facilitated a rise of a victims’ movement seeking to promote victim interests. This movement has noted that offenders and alleged offenders enjoy a series of constitutional rights, and that corresponding rights for crime victims need to be introduced. Victims are unlikely to be accorded rights in the literal sense of the word; nevertheless, they need to be accommodated within the criminal justice system. This need has given birth to a charter for crime victims, a document that seeks to empower crime victims. The perception remains, however, that offenders and crime suspects still enjoy too much protection, to the detriment of victim interests. The development of victim rights is hampered by the adversarial nature of the country’s criminal justice system and the perception that victims have no role to play within the criminal process, other than as witnesses. The purpose of the thesis is to analyse the extent to which our Bill of Rights strikes a balance between the interests of alleged offenders and offenders on the one hand, and crime victims on the other. It also seeks to create awareness about the plight of crime victims and to make suggestions on possible solutions. / Criminal and Procedural Law / LLD (Criminal & Procedural Law)

Text in English / The substitution of the dominant Western jurisprudence for South Africa’s indigenous normative values during colonial and apartheid times has resulted in a perverted conception of law that presents Western jurisprudence as synonymous with law. In the era of the constitutional recognition of African law where the application of the democratic principle demands that the newly re-enfranchised African communities deserve to be regulated by their own indigenous values, the resilience of this legal culture has become problematic. To reverse this situation legal and constitutional interpreters must rethink and reshape their contributions to the achievement of the post-apartheid version of African law envisioned by the South African Constitution. The application of African law in a free and liberated environment must reflect its own social, political and legal cosmology in which its institutions operate within their own indigenous frame of reference. A study of the anatomy of African jurisprudence as a means of gaining insight into the indigenous worldview which was characterised by the culture of communal living and the ethos of inclusiveness to counter the prevailing hegemony of autonomous individualism, has become urgent. To achieve this such pillars of African jurisprudence as the philosophy of ubuntu must be exhumed in order for African law’s rehabilitation under the Constitution to be undertaken on the basis of its authentic articulation uncontaminated by colonial and apartheid distortions. The task of developing the African law of the 21st century to the extent required by the Constitution is a challenge of enormous proportions which demands an appreciation of the historical and political environment in which African law lost its primacy as the original legal system of South Africa after Roman-Dutch law was imposed on the South Africa population. The revival of African law becomes more urgent when one considers that when Africans lost control of their legal system they had not abdicated sovereignty voluntarily to the newcomers. The validity of the imposition of Western jurisprudence is vitiated by the colonial use of such imperial acts as colonisation, conquest, and annexation as the basis on which the regime of Roman-Dutch law was imposed on South Africa. Ever since, African law has been subordinated and denigrated through colonial and apartheid policies which relegated it, via the repugnancy clause, to a sub-system of Roman-Dutch law with whose standards it was forced to comply. The repugnancy clause left African law a distorted system no longer recognisable to its own constituency. The advent of the new dispensation introduced a constitutional framework for re-capacitating South Africa’s post-apartheid state institutions to recentre African law as envisioned by the Constitution. This framework has become the basis on which legislative and judicial efforts could rehabilitate the indigenous value system in the application of African law. The courts of the new South Africa have striven to find the synergy between indigenous values and the Bill of Rights in order to forge areas of compatibility between African culture and human rights. An analysis of this phase in the development of African law, as evidenced by the present study, reveals successes and failures on the part of the courts in their efforts to rehabilitate African law in line with both its value system and the Bill of Rights. These findings lead to the conclusion that whilst South Africa’s legislative and judicial institutions have not yet achieved the envisioned version of African law, there is an adequate constitutional framework through which they could still do so. This study, therefore, recommends that the above institutions, especially the courts, should adopt a theory of re-indigenisation that would guide them as they proceed from the indigenous version of African law which is the basis on which to apply the Bill of Rights. The application of such a theory would ensure that the distorted ‘official’ version of African law which was imposed by colonial and apartheid state institutions is progressively discredited and isolated from the body of South African law and gives way to the version inspired by the Constitution. / Constitutional, International & Indigenous Law / LL.D.

Thesis (masters)--University of South Africa, 2001.

Thesis (LLD (Public Law))—University of Stellenbosch, 2009. / ENGLISH SUMMARY: The point of departure of this dissertation is that transformation in South Africa depends on transformative politics – extra-institutional, substantive, oppositional, transformation-oriented politics. One challenge South Africa’s constitution therefore poses to courts is to take account of the impact of adjudication on transformative politics. The purpose of this dissertation is to investigate the relationship between adjudication and transformative politics within a specific context – adjudication of socio-economic rights cases. This relationship is commonly described in a positive light – either that adjudication of socio-economic rights cases promotes transformative politics by giving impoverished people access to the basic resources required for political participation; or that adjudication of such cases is in itself a space for transformative politics. Although there is much truth in both these descriptions, both under-estimate the extent to which adjudication also limits transformative politics. This dissertation focuses on the extent to which adjudication limits transformative politics – it comprises an analysis of socio-economic rights cases with the aim of showing how adjudication of these cases, despite positive results, also limited transformative politics. The theoretical aspects of this problem are outlined in the first chapter. After a description of the body of case law on which the analysis focuses two chapters follow in which two ways in which adjudication limits transformative politics are investigated. The first traces how courts in socio-economic rights cases participate in discourses about impoverishment that tend to describe the problem as non-political – specifically how courts tend to describe impoverishment as technical rather than political in nature; and how courts implicitly legitimise in their judgments liberal-capitalist views of impoverishment that insist that impoverishment is best addressed through the unregulated market. Then follows a chapter investigating how views of legal interpretation in terms of which legal materials have a certain and determinable meaning that can be mechanically found by courts limit transformative politics by insulating adjudication from critique and emphasising finality in adjudication. Throughout it is shown how courts can mitigate the limiting effects of adjudication, by legitimating the political agency of impoverished people, by using remedies requiring political engagement between opponents and postponing closure in adjudication, and by adopting a different approach to interpretation, that emphasises the pliability and relative indeterminacy of legal materials. Despite this, the conclusion of the dissertation is that courts can never wholly avoid the limiting impact of adjudication on transformative politics, but should rather aim to remain continually aware of it. / AFRIKAANS OPSOMMING: Die uitgangspunt van hierdie proefskrif is dat transformasie in Suid-Afrika afhang van transformatiewe politiek – buite-institusionele, substantiewe, opposisionele, transformasie-gerigte politiek. Een eis wat Suid-Afrika se grondwet daarom aan howe stel, is om ag te slaan op die impak van beregting op transformatiewe politiek. Die doel van hierdie proefskrif is om die verhouding tussen beregting en transformatiewe politiek binne ‘n spesifieke konteks – beregting van sake oor sosio-ekonomiese regte – te ondersoek. Meeste beskouinge van hierdie verhouding beskryf dit in ‘n positiewe lig - óf dat die beregting van sake oor sosio-ekonomiese regte transformatiewe politiek bevorder deur vir verarmde mense toegang tot basiese lewensmiddele te bewerkstellig sodat hulle aan politieke optrede kan deelneem; óf dat beregting van sulke sake opsigself ‘n spasie is vir transformatiewe politiek. Hoewel daar waarheid steek in beide beskrywings, onderskat hulle die mate waartoe beregting ook transformatiewe politiek kan beperk. Hierdie proefskrif fokus op hoe beregting transformatiewe politiek beperk - dit behels ‘n analise van sake oor sosio-ekonomiese regte met die doel om te wys hoe beregting van hierdie sake, ten spyte van kennelik positiewe gevolge ook transformatiewe politiek beperk het. Die teoretiese vergestalting van hierdie probleem word in die eerste hoofstuk beskou. Na ‘n beskrywing van die liggaam van regspraak waarop die analise fokus volg twee hoofstukke waarin twee maniere waarop beregting transformatiewe politiek beperk ondersoek word. Die eerste beskou hoe howe in sake oor sosio-ekonomiese regte deelneem aan diskoerse oor verarming wat neig om hierdie probleem as non-polities te beskryf - spesifiek hoe howe neig om hierdie problem as tegnies eerder as polities van aard te beskryf; en hoe howe liberaal-kapitalistiese sieninge van verarming, ingevolge waarvan verarming deur die ongereguleerde mark aangespreek behoort te word, implisiet in hul uitsprake legitimeer. Dan volg ‘n hoofstuk wat naspeur hoe sieninge van regsinterpretasie ingevolge waarvan regsmateriaal ‘n sekere en vasstelbare betekenis het wat meganies deur howe gevind word, transformatiewe politieke optrede beperk deur die openheid van beregting vir kritiek te beperk en finaliteit in beregting in die hand te werk. Deurgaans word gewys hoe howe die beperkende effek van beregting kan teëwerk, deur die politike agentskap van verarmde mense te legitimeer, deur remedies te gebruik wat politieke onderhandeling tussen opponente bewerkstellig en finale oplossings uitstel, en deur ‘n ander benadering tot interpretasie, wat die buigsaamheid en relatiewe onbepaalbaarheid van regsmateriaal erken, te omarm. Tog is die gevolgtrekking van die proefskrif dat howe nooit die beperkende effek van beregting op transformatiewe politiek geheel kan vermy nie, maar eerder deurgaans daarop bedag moet wees.

Thesis (LL.M.)--Stellenbosch University, 2003. / ENGLISH ABSTRACT: In recognition of the socio-economic imbalances inherited from the past and the abject poverty experienced by many, the people of South Africa adopted a Constitution fully committed to protecting socio-economic rights and advancing social justice. Apartheid constituted a violation of every internationally recognised human right. Seen in this light the emphasis on socio-economic rights in the new South African Constitution represents a commitment to guarantee to everyone in society a certain minimum standard of living below which they will not be allowed to fall. As the Constitution recognises socio-economic rights as justiciable rights, they can be of assistance to those who are unable to support themselves when challenging the state for the non-delivery of basic services. The duty to deliver the services lies first with the state and the court becomes involved only once it is alleged that the state has failed to fulfil its duty. The primary purpose of the study is aimed at determining the effectiveness of the South African Human Rights Commission in monitoring court orders in respect of the implementation of socio-economic rights. Non-Governmental Organisations, involved in the promotion and protection of human rights including socio-economic rights, cannot be left out of the process. It is argued that where the Courts issue structural interdicts, which have of late been used by them, albeit not enough in the context of socio-economic rights, they are responsible for the implementation of such orders. It is also argued that the South African Human Rights Commission and NGOs must be enjoined to ensure that court orders are better implemented. Court orders in respect of socio-economic rights in almost all the cases to date were neither implemented nor monitored adequately. / AFRIKAANSE OPSOMMING: Ter erkenning van die sosio-ekonomiese ongelykhede wat post-apartheid Suid- Afrika geërf het en die volslae armoede waaraan talle Suid-Afrikaners onderwerp is, het die mense van Suid-Afrika 'n grondwet aanvaar wat verbonde is tot die beskerming van sosio-ekonomiese regte en die bevordering van maatskaplike geregtigheid. Apartheid het elke internasionaal-erkende mensereg geskend. Teen hierdie agtergrond verteenwoordig die klem op sosioekonomiese regte in die nuwe Suid-Afrikaanse grondwet 'n verbondenheid daartoe om vir elkeen in die maatskappy 'n bepaalde minimum lewensstandaard te waarborg, waaronder hulle nie toegelaat sal word om te sak nie. Aangesien die grondwet sosio-ekonomiese regte as beregbare regte erken, kan hierdie regte van nut wees vir mense wat hulself nie kan onderhou nie, as hulle die staat uitdaag omdat basiese dienste nie gelewer word nie. Die plig om dienste te lewer berus eerstens by die staat, met die gevolg dat die hof eers betrokke raak as die staat nie daarin slaag om sy plig te vervul nie. Die primêre doel van hierdie studie is om vas te stel hoe effektief die Suid- Afrikaanse Menseregtekommissie is met die monitering van hofbevele wat betrekking het op die verwesenliking van sosio-ekonomiese regte. Nieregeringsinstansies wat betrokke is by die bevordering en beserkming van menseregte, met inbegrip van sosio-ekonomiese regte, kan egter nie uit die proses gelaat word nie. In hierdie studie word aangevoer dat waar die strukturele interdikte gee, soos wat in die onlangse verlede gebeur het, selfs al is dit nie genoeg in die konteks van sosio-ekonomiese regte nie, hulle ook verantwoordelikheid is daarvoor dat sulke bevele uitgevoer word. Dit word verder gestel dat die Suid-Afrikaanse Menseregtekommissie en nieregeringsinstansies moet saamwerk om te verseker dat hofbevele beter uitgevoer word. Tot op datum is amper geen hofbevele oor sosio-ekonomiese regte bevredigend uitgevoer of genoegsaam gemoniteer nie.