Inaug.-Diss.--Heidelberg. / Lebenslauf. "Literatur-verzeichnis": p. 39-40.

The land debate regarding just and equitable compensation and the potential 'expropriation without compensation' amendment to section 25 of the Constitution of the Republic of South Africa1 has been a contentious issue in South Africa over the past year. Owing to colonialism and the apartheid regime, secured land rights and control were reserved for the white minority. This resulted in the mass dispossession of land that was owned and/or controlled by black, coloured and Asian people. In light of our country's deplorable history of land dispossession, section 25(1) of the Constitution was included to command that no person be deprived of property except in terms of law of general application. In addition, in accordance with section 25(2), property may be expropriated only in terms of law of general application for a public purpose and subject to compensation. However, despite the inclusion of these transformative provisions, 25 years into our constitutional democracy, a large portion of previously disadvantaged individuals remain disadvantaged owing to socio-economic oppression, their inability to secure land rights and the country's slow-moving land reform process. This dissertation is based on the notion that transformation in the area of land reform has been conducted at a glacial pace, owing to South African courts' market value-centred approach to determining just and equitable compensation amounts that are to be awarded in expropriation cases. By analysing sections 25(2), 25(3) and 25(8) of the Constitution, the courts' constitutional jurisprudence and academic literature, this dissertation aims to investigate whether it is necessary for the courts to re-evaluate the approaches taken during the initial stages of land reform; considering the need for a speedier land reform process. Upon considering the current composition of section 25(3), I contend that if the courts alter their approach to legal interpretation by placing more weight on a purposive approach when interpreting this section's requirement of 'just and equitable compensation', the results of expropriation cases will give effect to the transformative values that underpin section 25 - hence the Constitution need not be amended to allow for expropriation without compensation in order to give effect to land reform as envisioned in section 25(8). This increased purposive approach to interpretation will encourage the courts to adopt an inclusive interpretation of 'just and equitable compensation' which allows for the expropriation of land with compensation, without compensation and with partial compensation.

‘Democracy means being in touch and in tune with life as it's lived in our communities, and that is what we should expect from our leaders…' – Barak Obama Political parties are indispensable conduits for the enjoyment of political rights as they are responsible for aggregating and articulating interests, developing competing policy proposals, organising legislatures and co-ordinating the formation and activities of government, none of which is possible without adequate financial resources. The money political parties derive from the public revenue is not enough to allow them to run successful election campaigns, and as a result, they are left largely reliant on private sources of funding. However, the way in which this private funding infiltrates the political system has proven to be one of the biggest threats to democracy. An insidious link, fuelled by a lack of transparency and openness, is seen between those who donate money and those who receive it. Often, this culminates in a quid pro quo relationship between the donor and the donee which we see manifest as rampant corruption within the (dys)functioning of our state arms. In an effort to attenuate the ruinous effects of the unregulated passage of money through political systems, most democracies around the world have moved towards enacting regulatory disclosure laws, which are premised on the understanding that information on the private funding of political parties, and how this money is used, is essential for the effective exercise of the right to make political choices and to participate meaningfully in elections. No universally accepted model has been developed to regulate political finance; however, it is accepted that the core feature of any transparency policy is to be firmly rooted in the principles of access to information which in turn promotes accountability, responsiveness and openness. This paper examines whether South Africa's legal framework on political finance adequately addresses the problems that exist in relation to the funding of political parties and particularly, the threat of corruption.

Violent crime in South Africa has reached epidemic levels, and something needs to be done about it as a matter of urgency. While the huge socio-economic inequalities in South Africa remain the main cause of crime in South Africa, the focus of this dissertation is on the inefficient, ineffective and unaccountable South African Police Service (SAPS), and how its failings have contributed to the public safety crisis South Africa is faced with presently. In this dissertation I suggest that, given South Africa's current public safety crisis, institutional reform of SAPS is needed in order to adequately address this social ill and argue that it is worth revisiting the decentralised policing model proposed under the Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution), as a partial solution. The public safety crisis effects every person in South Africa, whether directly or indirectly, however, it is the most vulnerable communities, on the socio-economic margins of the South African society, who suffer the most. The Cape Flats in Cape Town is used as a representative case study to show the failings of South Africa's current centralised policing model, highlighting how SAPS have proven to be ineffective in dealing with violent crime there. As a result of the failings of SAPS people are organising locally to ensure their own safety, including the creation of vigilante organisations. In Cape Town a de facto decentralised police service has been created, which in itself presents a serious problem however also reflects the demand for more localised and nuanced policing in South Africa.

Marital rape is not a criminal offence in Botswana. This means therefore that, the law of Botswana recognises other forms of rape, except for marital rape. Marital rape is a form of intimate partner violence that the Convention on the Elimination of all Forms of violence Against Women refers to as domestic violence. Marital rape is also a form of gender based violence against women because it is a violence that is directed against women because they are women. Marital rape results in serious medical, emotional and mental harm. As a result, marital rape violates numerous human rights that range from the right not to be subjected to torture or to cruel, inhuman, or degrading treatment or punishment, the right to security and liberty of the person, as well as the right to health, just to mention a few. The human rights that are violated by marital rape are provided for under international human rights instruments that Botswana has ratified. Further, The Constitution of Botswana contains, in its Bill of Rights, a provision that guarantees every person in Botswana protection of the law regardless of sex. The biggest challenge for this dissertation is that there is no scientific evidence that serves as authority that marital rape does occur in Botswana. However, the findings of the studies conducted on gender based violence show there is a strong possibility of marital rape due to some cultural factors that give men sexual entitlement in a marriage. Further some women have come out to relate their rape ordeals at the hands of their husbands. With this dissertation, I seek to make a case for the criminalisation of marital rape. My argument in this dissertation is that, even without scientific evidence in the form of statistics, any form of violence against women is a violation of women human rights. As a result, it is necessary for Botswana to put measures in place, including criminalising marital rape, to protect married women’s human rights. Further, even though a sovereign state, Botswana has ratified international human rights instruments and is therefore bound by its international obligations to prevent, eradicate and punish any form of violence that violates human rights. Furthermore, other than what international law provide in regard to criminalisation of marital rape, marital rape needs to criminalised in order to provide effective protection and remedies for married women against marital rape.

No description available.

This study explores the limitations of recognising traditional leadership as institution through legislation. The legislative recognition of traditional leadership has serious implications for the processes of change within customary law from 'official' customary law to 'living' customary law. The advent of the 1996 Constitution and its emphasis on freedom, dignity, equality and accountability has opened up avenues for democratic political participation, which is changing the nature of customary law through a bottom-up process involving community members in the evolution of customary law. This process of evolution draws on various sources of law, including aspects of official customary law, community norms and procedures as well as the Constitution, particularly rights discourse. Deep legal pluralism has taken root through living customary law and is changing the way in which community members relate to traditional leaders by empowering rural citizens to demand accountability from traditional leaders. Legislative recognition of traditional leadership has been characterised as necessary for the restoration of the dignity of African justice systems. Though constitutionally sanctioned through the rule of law, the legislative framework recognising and regulating traditional leaders has had a negative impact on the processes of change and democratisation described above at grassroots level. Gaining an understanding of these consequences and how they have come about is at the heart of this study, especially given that they are unintended consequences of a government policy meant to improve the lives of rural citizens. Legal pluralism as a theory of law provides a critical lens through which the shortcomings of legislation recognising traditional leadership can be perceived, and probing questions can be asked about the effect of state law on non-state legal orders. However, in South Africa the situation is quite complicated given that the distinction between state law and non-state law with regard to African customary law is not always easy to make. The two systems have existed not only in juxtaposition for many years, but have bled into each other in layered ways. These layers have been moulded very deeply through the influence of various politicolegal orders in existence at particular times and their impact on social relations in South African society. As a theory of law, legal pluralism is used in this study to try and peel back a few of these layers, enabling observation and analysis of how the distribution of political power from the different politico-legal frameworks of governance in South Africa namely, colonialism, apartheid, and constitutional democracy, have shaped traditional leadership; and the impact of these processes on the power relationships between traditional leaders and rural citizens. Law, mostly in the form of legislation, has been an important factor in the establishment, destruction, and re-establishment of these power relationships. This forms the basis of the study, at the end of which it is determined that although legislation is necessary for the recognition and regulation of traditional leadership, as a requirement of the rule of law, the current and proposed legislative framework for traditional leadership is an inappropriate framework. It centralises legislative, judicial and executive power in an unelected arm of government, namely traditional leaders, which is unconstitutional on the basis of the separation of powers principle which is a founding value of South Africa's constitutional democratic dispensation.

It is commonly known and acknowledged in contemporary times that the burning of coal and other fossil fuels has caused environmental harm on a global scale, especially global warming caused by emissions of carbon dioxide and other gases. Nuclear energy does not cause emissions, but the risk of nuclear accidents is a deadly and serious one for communities close to nuclear power stations.8 Furthermore, humans have not yet found a completely safe method for disposal of nuclear waste.9 Florini and Sovacool write that global energy governance is currently on an unsustainable and conflict-prone path. There are issues of unreliable supply, brittle and vulnerable energy infrastructure, massive environmental degradation, and failure to deliver energy services.10 Udall goes so far as to say that 'energy is the original currency', and that mankind is at the beginning of a period of resource nationalism.11 Victor and Yueh endorse this view, saying that the decade between 2000 and 2010 has seen governments in all the large consumer nations of the world besieged by doubts about their energy security.12 The increasing demand for energy across the world has a number of consequences. Among these, the most challenging for governments is the association of energy generation with climate change, resulting from emission of greenhouse gases in the process of burning fossil-based fuels to generate electricity.13 Victor and Yueh describe the energy sector as one of the most exciting technological frontiers in the world, with many countries changing their expectation as to what the sector should deliver, due to climate change.14 Across the world, renewable energy sources are being recognised as the safest and most desirable energy sources, as they are largely free of emissions and are non-depletable.15 In South Africa the legislative framework explicitly promotes the development and use of renewable energy. In this dissertation it will be shown how municipalities in South Africa can play a valuable role in energy governance, which, it is posited, is a central element of their legislative responsibilities with regard to service delivery, upholding of the Bill of Rights, promoting a safe and healthy environment, promoting local economic development, and other issues.

Includes bibliographical references.

Includes bibliographical references. / This dissertation seeks to answer the following research questions: Whether there exist legal and institutional gaps that need to be filled by the establishment of a National Human Rights Institution (NHRI) in Botswana? How will the establishment of a NHRI fill gaps in Botswana’s existing legal and institutional framework? What are the minimum standards, guidelines and principles which must be adhered to in order to establish an effective NHRI ? What lessons can Botswana learn from South Africa and Zimbabwe in order to establish a NHRI Botswana’s which complies with the Paris Principles?