Doctor Legum - LLD / The research problem of this study is the jurisprudential inconsistency in the application of the right in section 26(3) of the South African Constitution's Bill of Rights. The inconsistency is due to inadequate conceptualisation of the substantive requirements of meaningful engagement (ME) by the South African Constitutional Court (ConCourt). The central argument is that the development of a community engagement model based on the substantive requirements of ME will enhance the application of section 26(3). This study commences by illustrating the disempowering nature to the squatters of the apartheid evictions in South Africa. To tighten influx control, the apartheid regime introduced a battery of laws that disempowered the squatters. The apartheid-induced disempowerment of the squatters penetrated into the democratic dispensation. In the examination of the normative context of evictions post-1994, this study identifies six primary drivers for substantive involvement of the occupiers during evictions. The six primary drivers seek to address the disempowering trajectory during evictions.

Magister Legum - LLM / South Africa

Magister Legum - LLM / While the Constitutional Court has repeatedly enforced a duty to meaningfully engage with communities where the provision of basic social services and goods is at stake, uncertainty about the form, extent and quality of community engagement continues to negatively impact on development projects. The much publicised "toilet saga" in the Makhaza informal settlement in the Western Cape is a telling example. This problem is partly attributable to a lack of clarity about the legal foundations and basis of this duty. The research project explores such an approach by clarifying the proper legal and constitutional basis of the right to meaningfully participate in development projects and the delivery of basic social goods, and in so-doing, to place public participation in socio-economic rights on a sound legal and constitutional foundation. The project further seeks to develop a framework or best practice for the practical implementation of this right in the context of urban development projects.

O presente estudo se propõe a desvelar o espaço legítimo de controle de políticas públicas destinadas à concretização de direitos fundamentais pelo Poder Judiciário. Para tanto, inicialmente é apresentada uma teoria das políticas públicas, que compreende a busca de um conceito para a categoria e a apresentação de suas características e elementos mais relevantes. O estudo não prescinde da análise da teoria dos direitos fundamentais, em especial das questões atinentes à eficácia dos direitos ditos prestacionais, e também da chamada análise institucional, um campo de estudos recentemente reavivado nos Estados Unidos. Na segunda parte do trabalho, de natureza marcadamente propositiva, as políticas públicas são divididas segundo a sua natureza, e em seguida sugeridos diferentes níveis de controle jurídico. Para as políticas ligadas ao mínimo existencial, sustenta-se o controle por meio dos princípios da proibição da proteção insuficiente e vedação do retrocesso. Para as demais políticas públicas, o controle é analisado sob o prisma dos princípios da isonomia, eficiência e transparência. Após o estudo de questões incidentais, o trabalho segue para as modalidades de controle de políticas públicas, distinguindo-se entre o controle forte, em que a discricionariedade dos órgãos políticos é reduzida a zero, e o controle fraco, onde o Poder Judiciário apenas comprime o espaço de liberdade decisória. / This paper aims to reveal the legitimate space given to the Judiciary to materialize public policies. Therefore, it is initially presented a theory of public policy, which includes the search for a concept for the category and the presentation of its features and its most relevant elements. The study does not obviate the analysis of the theory of fundamental rights, especially issues concerning the effectiveness of the so-called positive rights, and also the designated institutional analysis, a field of study recently brought to life in the United States. In the second part of the text, which has a distinctly purposeful feature, public policies are divided according to their nature, and then it is suggested different levels of legal control. For policies related to the minimum existential claims, we defend a control through the principles of the prohibition of insufficient protection and impediment of the fundamental rights retrocession. For other public policies, the control is analyzed under the influence of the principles of equality, efficiency and transparency. After the analysis of incidental issues, the paper leans to the study of the procedures for control of public policies, distinguishing between strong control, where the leeway of the political bodies is reduced to zero, and poor control, where the Judiciary only compresses the area of decision-making freedom.

O presente estudo se propõe a desvelar o espaço legítimo de controle de políticas públicas destinadas à concretização de direitos fundamentais pelo Poder Judiciário. Para tanto, inicialmente é apresentada uma teoria das políticas públicas, que compreende a busca de um conceito para a categoria e a apresentação de suas características e elementos mais relevantes. O estudo não prescinde da análise da teoria dos direitos fundamentais, em especial das questões atinentes à eficácia dos direitos ditos prestacionais, e também da chamada análise institucional, um campo de estudos recentemente reavivado nos Estados Unidos. Na segunda parte do trabalho, de natureza marcadamente propositiva, as políticas públicas são divididas segundo a sua natureza, e em seguida sugeridos diferentes níveis de controle jurídico. Para as políticas ligadas ao mínimo existencial, sustenta-se o controle por meio dos princípios da proibição da proteção insuficiente e vedação do retrocesso. Para as demais políticas públicas, o controle é analisado sob o prisma dos princípios da isonomia, eficiência e transparência. Após o estudo de questões incidentais, o trabalho segue para as modalidades de controle de políticas públicas, distinguindo-se entre o controle forte, em que a discricionariedade dos órgãos políticos é reduzida a zero, e o controle fraco, onde o Poder Judiciário apenas comprime o espaço de liberdade decisória. / This paper aims to reveal the legitimate space given to the Judiciary to materialize public policies. Therefore, it is initially presented a theory of public policy, which includes the search for a concept for the category and the presentation of its features and its most relevant elements. The study does not obviate the analysis of the theory of fundamental rights, especially issues concerning the effectiveness of the so-called positive rights, and also the designated institutional analysis, a field of study recently brought to life in the United States. In the second part of the text, which has a distinctly purposeful feature, public policies are divided according to their nature, and then it is suggested different levels of legal control. For policies related to the minimum existential claims, we defend a control through the principles of the prohibition of insufficient protection and impediment of the fundamental rights retrocession. For other public policies, the control is analyzed under the influence of the principles of equality, efficiency and transparency. After the analysis of incidental issues, the paper leans to the study of the procedures for control of public policies, distinguishing between strong control, where the leeway of the political bodies is reduced to zero, and poor control, where the Judiciary only compresses the area of decision-making freedom.

Magister Legum - LLM / South Africa

Community Economic Development (CED) in South Africa is shaped by the historicalprocesses of the former Apartheid regime that discriminated the social and economic rights of the majority of people, thus disempowering them to participate in development. The notion of Integrated Community Economic Development (ICED) enhances the concept of participation in community economic development in that it advocates for an empowerment dimension in development. In order to facilitate this participation, the government has introduced the participatory mechanisms of the IDP and ward committee system. Paradoxically, inequalities in development persist in previously disadvantaged homelands which were excluded from participation in developmental initiatives of the former regime. Consequently, these mechanisms for ICED have not been able to achieve participation of communities in ICED. Winterveldt is one such area with a legacy of social exclusion through racial and ethnic discrimination. The goal of the study was to explore the lack of participation of the Winterveldt community in ICED guided by the research question: “What are the reasons for the lack of participation of the Winterveldt community in ICED?” A qualitative research approach was followed and the research design was a case study. Data was gathered through focus group interviews and document studies. The focus groups were comprised of 13 community participants and 10 ward committee personnel from Winterveldt. Research findings revealed various reasons for the lack of participation in the ICED of Winterveldt including role confusion, the lack of information and training on the IDP and political power abuse. The study concluded that participation flows along lines that safeguard the interests of local government with little respect for the community’s capacity to make decisions concerning their development. Recommendations towards the achievement of participation in the ICED of Winterveldt include training on the Integrated Development Plan (IDP), the development of a guideline for implementing the IDP and changes in attitudes of all actors in the ICED of Winterveldt. Copyright / Dissertation (MSW)--University of Pretoria, 2012. / Social Work and Criminology / unrestricted

This work critically examines the justiciability of the Sudan model of constitutionalising socio-economic rights (SER) and the legal implications of this model. Discusses the following questions: (1) What is the scope and extent of the Sudan Bill of Rights? (2) What is the effect of section 27(3) on section 22 of the Sudan Interim National Constitution? (3) Does the Constitution provide for justiciable SER, if yes, can the South African model of rendering SER justiciable and their standard of review provide a useful guide to the Sudan? / Mini Dissertation (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2008. / A Dissertation submitted to the Faculty of Law University of Pretoria, in partial fulfilment of the requirements for the degree Masters of Law (LLM in Human Rights and Democratisation in Africa). Prepared under the supervision of Professor Julia Sloth-Nielsen of the Community Law Centre, University of the Western Cape / http://www.chr.up.ac.za/ / Centre for Human Rights / LLM

"Poverty Reduction Strategy Papers (PRSPs) were born out of the policies of the World Bank (WB) and the International Monetary Fund (IMF). They were introduced 'in the wake of the failure of Structural Adjustment Programmes (SAPs) to reduce the incidence of poverty'. PRSPs have been linked with the IMF and WB Heavily Indebted Poor Countries (HIPC) debt relief initiative. In order to have access to debt relief, countries have had to draw up PRSPs and start moving towards their effective implementation. PRSPs are now meant to be the national guide informing almost every facet of the human development framework. They are being used as benchmarks for the prioritization of the use of public and external resources for poverty reduction. Further, multilateral as well as bilateral donors and lending institutions are using them as an overarching framework from which policies and actions of developing countries are to be gauged and decisions on further assistance or loans made. In that light, PRSPs have become pivotal to the social fabric of the countries concerned as they affect the daily undertakings of the people through, among other things, their allocative and redistributive roles. ... The PRSPs of Malawi and Uganda are not premised on the human rights based approach to poverty reduction. They largely address issues of economic and social rights from a benefactor and beneficiary perspective rather than from a claim-holder and duty-bearer perspective. Further to that, these policies are largely premised on the requirements of the Bretton Woods Institutions (BWIs) that have received heavy criticism for not factoring in human rights considerations, when implementing their policies towards developing countries. This problem thus calls for a harmonisation of PRSPs with the obligations of the states as well as the BWIs to ensure the full realisation of these rights. ... This study is divided into six chapters. Chapter two is a concise analysis of the PRSP processes in Malawi and Uganda. It addresses issues of participation and national ownership, among others, and locates the role of the BWIs in the process. Chapter 3 is a general overview of the international legal obligations that the two governments have in the area of economic and social rights. Chapter four provides an overview of the scope of the rights to health and housing. Chapter five is a critical analysis of the extent to which the PRSPs of the two countries act as effective tools for advancing the rights to health and housing in the two countries. Chapter six concludes the discussion. It makes necessary recommendations in order to strengthen the human rights based approach to poverty reduction within the framework of the PRSPs, with a view to ensuring the progressive realisation of economic and social rights." -- Introduction. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2004. / Prepared under the supervision of Dr. Baker G. Wairama at the Faculty of Law, Makerere University, Kampala, Uganda / http://www.chr.up.ac.za/academic_pro/llm1/llm1.html / Centre for Human Rights / LLM

"The Treatment Action Campaign (TAC) case, as a model for Africa, marks a positive step in protecting the right to health, particularly pregnant women and their infants. It provides a rich jurisprudence on protection of the right to health in Africa, and particularly in the context of the HIV/AIDS pandemic. The TAC case definitely portrays the strength and role of an independent judiciary in the enforcment of constitutional rights such as socio-economic rights. The competence, legitimacy and power of the courts to pronounce on the constitutional validity of socio-economic rights justifies that it is indeed a model for the enforcemnt of the right to health in Africa. However, the right to health is not justiciable in many African constitutions. It is submitted that failure to address human rights violations, particularly the right to health, fuels the HIV/AIDS pandemic. This calls for government to take measures to protect the rights of persons living with HIV/AIDS, particularly women. The African Charter on Human and Peoples' Rights (ACHPR), of which most African countries are state parties to, obligates states parties to take necessary measures to give effect to the rights enshrined therein, including socio-economic rights. Socio-economic rights, in most African countries, including particularly Cameroon, are not constitutionally protected as justiciable rights. Thus, the jurisprudence of the TAC case could inspire African countries whose legislation and case law on socio-economic rights are underdeveloped, to make use of the jurisprudence issued by the Court in this field. The TAC case could also be used to persuade national courts to enforce socio-economic rights, given the prevalence of socio-economic rights violations in Africa. Thus, in this regard, it will be argued that governments have a fundamental obligation to ensure that the right to health is respected, protected, promoted and fulfilled as provided in regional and international human rights instruments. ... Chapter 1 of this study highlights the structure of the whole study. Chapter 2 provides an in-depth analysis of the TAC case, the basis of the ratio decidendi of the TAC case. The analysis includes the implications of the TAC case on the SA government. Chapter 3 reviews the application of international and regional human rights instruments protecting the right to health, and how these instruments are interpreted by human rights treaty monitoring bodies and municipal courts to impose on the state the duty to protect the right to health. Section 27 of the Constitution is also lightly considered. The discussion concentrates on the relevance of these norms and jurisprudence to the protection of the right to health in the context of HIV/AIDS in South Africa. The thrust of the theory of separation of powers is extensively discussed on the basis that the right to health encompasses seeking redress whenever it is violated. Thus, the study explores the judicial role in the HIV/AIDS era, to ensure that the right to health is enforced. However, it is noted that judicial independence and the theory of separation of powers, amongst others, may impede the enforcement of the right to health when it is challenged. Chapter 4 evaluates the Cameroon approach to the right to health in the Constitution, and seeks to find answers as to whether the judiciary has capacity and expertise to impose on the government the obligation to respect, protect and fulfill the right to health. Furthermore, the reasons are provided as to why the TAC case serves as a model for Africa. Chapter 5 is a summary of the conclusions drawn from the whole study and makes some recommendations." -- Introduction. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2005. / Prepared under the supervision of Dr. A.N. Atangcho at the Association for the Promotion of Human Rights in Central Africa (APDHAC), Catholic University of Central Africa, Catholic Institute, Yaounde, Cameroon / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM