LLM / Department of Public Law

PhD (African Studies) / Centre for African Studies / This interdisciplinary study examined witchcraft beliefs and criminal responsibility in South Africa and Zimbabwe. The unshakeable deep rooted and profound cultural beliefs of African people do not find expression in written law and therefore introduce a mismatch between law as the people live it and law as contained in the statute books. The aim of this interpretive doctrinal (legal) and qualitative research study was two-fold. Firstly, it sought to evaluate and assess the influence of African value systems particularly ethical ideas on the development of criminal responsibility. Secondly, it undertook a comparative examination of the criminal responsibility of actors who commit crimes while labouring under belief in witchcraft. The research, therefore, undertook a comparative examination of the criminal responsibility of actors who commit crimes while labouring under the overpowering fear of belief in witchcraft. In that regard, the study was premised on and informed through theories of criminal punishment, a Human Rights Based Approach, psycho-analytic theory and socio-cultural theory. The primary motivation for the study was the need to address the mismatch of laws and African value systems and to add knowledge to the scholarly legal writing on beliefs in witchcraft. Explorative qualitative research methods of collecting data (case studies, semi-structured interviews and focus groups discussions) and the doctrinal methods of data collection (case law observation, newspaper reports and witchcraft legislations) were employed as the research methodologies for the purposes of this study. For social empirical findings to be useful in integrating with the legal issues, the study adopted an Indigenous Knowledge Systems (IKS) perspective. Although customary practices play a very important role in the lives of the African people, some of the rules can no longer withstand constitutional scrutiny. The research findings confirmed the mismatch that exists between the African value systems and the law. The study unveiled that the African value systems of the two countries have been affected by modernity. Also, the two countries have similar laws governing the aspect of belief in witchcraft that are weak and archaic thus introducing a lacuna in the

At the United Nations Conference on International Organization in April 1945 South Africa affirmed the principle of respect for human rights in a Preamble it proposed for inclusion in the Charter of the United Nations. The proposal was approved and the Preamble was accorded binding force. While South Africa participated in the earliest attempts of the United Nations to draft a bill of rights, it abstained on the adoption of the Universal Declaration of Human Rights because its municipal legislation was incompatible with some articles. Similarly, South Africa did not become a party to the international human rights instruments the declaration inspired, and avoided an active role in their elaboration. Subsidiary organs of the General Assembly undertook several studies on discrimination in the field of human rights. They provided evidence that racial discrimination in South Africa intensified after the National Party came to power in May 1948 on the platform of apartheid and diverged from global trends in humanitarian law. The gap between the Union and the United Nations widened. At the first General Assembly in 1946, India successfully asked that the treatment of persons of Indian origin in South Africa be inscribed on the agenda. The Indian question was later subsumed in the charge that South Africa's racial policies violated the Charter and in 1952 the General Assembly began to discuss apartheid. South Africa protested that these actions contravened Charter Article 2(7), which prohibited intervention in matters of domestic jurisdiction, and were ultra vires. Criticism of the Union increased in intensity, until in 1960 it culminated in calls for economic and diplomatic sanctions. Research shows that South Africa was the main architect of its growing isolation, since it refused to modify domestic policies that alienated even its potential allies. Moreover, it maintained a low profile in United Nations debates on human rights issues, abstaining on all substantive clauses in the two draft covenants on human rights. These actions were interpreted as lack of interest in global humanitarian affairs. South Africa had little influence on the development of customary international law in the field of human rights but was a catalyst in the evolution of international machinery to protect them. / Jurisprudence / (LL.D)

The importance of supervision and the influence of this relationship on the process of supervision, is often underrated. In order for this process to be implementede success-fully knowledge of the different functions including the administrative- educational- and supportive functions is of the utmost importance. It is also becoming increasingly impor-tant that note should be taken of the impact that cultural differences has on supervisor-relationships, the supervisional process and the effectivity of rendering of service as so-cial service organisations increasingly consists of diverse staff members rendering service to a diverse clientelle. This descriptive study has as goal to describe the impact of cultural differences on the practice focussing on the function of supervision and the establishment of diverse organisations and problems arising in this connection. Carefull attention will be paid as to how respondents experience cultural differences in the working environment, their problems and their opinions of how to solve these problems effectively. Conclusions and recomendations were made, which focussed on problems arising as result of cultural differences. The compilation of tentative guidelines which could be usefull in establishing supervision services with greater cultural sensitivity were given. / Social Work / M.Diac (Maatskaplike Werk-Rigting)

Whilst the mining industry has stimulated the economic growth of South Africa, its activities have also impacted on the social and environmental well-being of the communities and ecosystems in which it operates. Environmental degradation often severely affects the livelihoods of people in rural areas, who are often impoverished. Hondeklip Bay, a small fishing community in the Northern Cape, has been affected by the mining activities of the adjacent Hondeklip Bay Mine. The purpose of this paper is to identify whether impoverished residents affected by the detrimental effects of mining activity have rights to enforce the protection of their environment. These environmental rights pertain to an environment that is safe and not harmful to one's health and well-being. Environmental obligations of the mines as illustrated in terms of applicable legislation, and legal recourse available to the residents affected by the infringement of their environmental rights are furthermore explored. / Jurisprudence / LL.M

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 purpose of this thesis is to develop a comprehensive process for identifying and addressing primarily constitutional, medico-legal and liability issues, and in addition ethical, social and scientific issues related to the psychiatric and psychology professions in South Africa. In fulfilling this purpose, a comprehensive search is conducted of relevant historical, ethical, philosophical and clinical aspects pertaining to psychiatry and psychology, as well as an evaluation of the current juridical framework regarding the legal liability of the psychiatrist and psychologist balanced against the constitutional rights of the mentally disordered patient in South Africa. Recommendations are made for the establishment of any new controls needed to mitigate and prevent the exposure of mentally disordered patients, further attempting to provide specific remedies to adapt the current juridical framework in South Africa. The examination is conducted within the framework of the South African and United Kingdom's legal systems. Focus is placed on aspects of medical law, human rights law (as envisaged in the Bill of Rights in the Constitution of the Republic of South Africa, 1996), criminal law and the law of delict and, to a lesser extent, administrative law and the law of evidence. / Law / LL.D.

Women and children are often the most affected by pandemics which have swept through the world, and in this regard the HIV/AIDS pandemics is not an exception. The most common route of HIV infection in HIV positive children under 5 years of age is through Mother-To-Child Transmission (MTCT). In spite of the seriousness of this pandemic, the Constitutional Court has found that the measures taken by the South African government with regard to the Prevention of Mother-To-Child Transmission (PMTCT) has fallen short of what the Constitution requires. This dissertation critically reviews the management of the South African PMTCT programme, and discusses the relevant Court decisions. The study finally clarifies the obligations of the South Africa government in the context of PMTCT under the 1996 Constitution and in terms of international law. / Constitutional,International & Indigenous Law / LL.M. (Legal aspects of HIV/AIDS)

The purpose of this study was to evaluate the implementation of the components of unit management, namely; architecture, case management, risk management and human rights in South African Youth Development Centres. The concept of unit management in correctional centres was adopted by the South African Correctional system in March 1995. However, the formal introduction of the concept was announced by the former Minister of Correctional Services, Dr. Sipho Mzimela, on 16th February 1996. The implementation of unit management was viewed as a vehicle for service delivery in South African correctional centres. Moreover, this concept was also viewed as a strategic move to ensure that corrections and the rehabilitation of inmates, as the core business of the department, are achieved. In an attempt to assess the application of unit management at South African Youth Development Centres, and how unit management influences the rehabilitation of sentenced youth offenders, a descriptive study was conducted to obtain knowledge and perspective from the available literature. In addition to a descriptive study, the researcher employed a quantitative methodology. Using the quantitative approach, data was collected by means of a structured questionnaire. In the case of coding and data analysis, a Statistical Analysis System (SAS) was utilized. In sum, Frequency Tables and Bar Charts were used to simplify the analysis per section and category. The findings from this study revealed that the conditions of detention at Youth Development Centres, specifically the level of overcrowding, influence of old correctional centre structures and the absence of custodial therapists contribute to the violence, violation of basic human rights and failure to rehabilitate youth offenders in these centres. Moreover, the findings also indicate that any efforts to implement the unit management approach proactively fails due to the abovementioned conditions in Youth Development Centres. / Unit management as a rehabilitation tool for youth offenders / Department of Penology / D.Litt. et Phil. (Penology)

Section 33(1)(b) is fraught with borrowed provisions. The end-product marries German and Canadian features. The failure of the German Constitutional Courts to interpret the "essential content of a right" precipitated the adopted infant's bumpy landing in South Africa. That the sibling still lacks identity is evidenced by our Constitutional Court's evasive and superficial treatment of the clause. Section 33(1)(a) - proportionality prong enables judges to justify their neglect of Section 33(1)(b). The opinion is expressed that Section 33(1){b) demands interpretation but to date it has been shrouded in vagueness. After all without demarcating boundaries with sufficient precision and highlighting where the State may not tread the State may trespass. Alternatively the limitable nature of human rights could become a myth as Section 33(1)(b) could be transformed into an insurmountable hurdle for the State, rendering every right absolute in practice. A workable conceptual framework proposes an inverted, porous and value imbibing solution. / Law / LL.M.