This minor dissertation is a research paper on the use of arbitrary detention to criminalise asylum seekers in South Africa. After the democratic transition in 1994 South Africa became a leading destination for asylum seekers from across the African continent. South Africa’s post-apartheid immigration and refugee system were based on a human-rights approach and aimed at creating a culture of inclusion and tolerance. Despite a progressive Refugee Act, the most prominent aspect of the South African asylum system is its use of arbitrary detention as a form of immigration control. The goal of this research is to analyse the criminalisation of asylum seekers through arbitrary detention in South Africa. This is done through an analysis of the roles the Refugee Act and the Immigration Act play in the asylum process. In understanding the nexus between arbitrary detention and the deprivation of liberty, this research analyses the normative frameworks that inform international and South African legislation. The use of detention as an immigration tool has resulted in a cycle of criminalisation. The South African institutions and erroneous application of immigration laws has criminalised the act of seeking asylum - a universal human right. After an in-depth analysis of the asylum process in South Africa and how arbitrary detention has criminalised asylum seekers, this research discusses the alternatives to detention most applicable in the case of South Africa. The erroneous application of laws, politicization of asylum seekers and use of detention for administrative and deterrence reasons are the primary reasons for the unlawful detention of asylum seekers in South Africa. This research reveals that there are alternatives to the use of detention as the first port of call, this largely lies in the reform of the country’s implementation of refugee law. The progressive nature of the Refugee Act guarantees protection from arbitrary detention, by redressing the management of the asylum process and institutions, the Refugee Act can be better implemented to reflect the human-rights approach it embodies.

Tens of thousands of men, women and children are being trafficked around the world and brutally exploited. This research investigated if SA law and policy is equipped to deal with the peculiarities of Human Trafficking. This dissertation's central thesis is that the legal and policy response to human trafficking in South Africa is inadequate to deal with its peculiarities. The anti-trafficking response must extend beyond the application of human rights and criminal law to include a cross-cutting, multi-sectoral, socio-economic and political response that addresses its causes and consequences. The study considers and explores the definition of human trafficking, its causes, consequences and the peculiarities and specificities of human trafficking in SA. The international, regional and domestic legal frameworks and their relevance for human trafficking is outlined with emphasis on the Prevention and Combatting of Trafficking in Persons Act 7 of 2013 and the National Policy Framework. A feminist lens using Intersectionality and Standpoint Theory, is applied to inform the critical analysis of the research question. This thesis demonstrated that South Africa's law and policy although promising, is insufficient in dealing with the peculiarities of human trafficking. The law needs to better account for the root causes of trafficking. It is essential that this response is informed by intersectionality to enable the implementation of broader solutions especially addressing the violation of social and economic rights and the root causes of trafficking.

The aim of this paper was to determine whether the current South African law governing the doctrine of pacta de non cedendo complies with the constitutional mandates imposed by our Constitution. In terms of the current law a pactum de non cedendo will only be accorded validity if the debtor is able to demonstrate a substantial interest in the prohibition against cession. However, the interest requirement is only applicable when a pactum de non cedendo is superimposed onto a pre-existing right, and is not required when a right is born ab initio with a prohibition on transfer. In my opinion the current law falls short of the "spirit, purport and objects of the Bill of Rights", as required by s 39(2) of the Constitution, and is therefore, in need of development. In this paper I propose the following development: Firstly, by requiring the debtor to prove an interest that is served by the pactum de non cedendo, in certain circumstances, the law undermines the value of equality held so dearly by our society. This is because no such requirement exists when other types of restrictive clauses are concluded. It is my contention that the "interest requirement" be relegated from being a free-standing requirement to simply being another factor to be taken into account when conducting the public policy enquiry. Secondly, pacta de non cedendo appearing in book debts and other similar monetary obligations should always be held contrary to public policy due to the importance of the free flow of claims in commerce, specifically, the factoring and securitisation industries. Factoring plays a crucial role in the world economy, the most advantageous aspect of factoring is that small to medium size businesses may obtain much needed finance by selling their claims to a factoring house. Lastly, the current distinction drawn between a pactum de non cedendo that is superimposed onto a pre-existing right, and a right that is created with a pactum de non cedendo is artificial and illogical, the correct distinction that should be drawn is between a pactum de non cedendo that is concluded by the debtor and creditor on the one hand, and between a pactum de non cedendo concluded between the cedent and cessionary on the other.

Children born in foreign territories to parents who are non-nationals are being deprived of the right to nationality, which in turn affects them from exercising other rights which are articulated in human rights instruments. When their births are not registered it means that they do not have birth certificates and in future they will be unable to acquire documents like identity documents and passports. Sometimes even if their births are registered, it is difficult for them to enjoy the other rights because national laws do not accommodate them. Even though all children's rights should be equally protected, this research will focus on children born to at least one parent who is an irregular migrant, and will analyse how this affects their access to the rights to education and health.

Includes bibliographical references.

Includes bibliographical references. / The aim of the enquiry is to establish whether trafficking victims could find protection within a particular human rights framework - that of refugee law - and to assess any factors that may hinder qualification for such protection.

The main objective of the study is to investigate which policies are already in place pertaining to unaccompanied, separated and migrant children in South Africa. Children migrate to South Africa from neighbouring countries as Mozambique and Zimbabwe but also from countries as far away as the Democratic Republic of South Africa, without their parents or guardians. South Africa has developed legal and policy measures for securing the rights of children. Are these measures consistent with existing international frameworks and standards? Also, to what extent are these policies being used to resolve the problems unaccompanied children face? Related to this question is the issue of implementation. The thesis considers how the responsible departments and state officials such as Magistrates, social workers, police officials and the Department of Home Affairs implement these policies. This minor dissertation would then make some recommendations to the South African government.

Despite an international framework guaranteeing fundamental rights to all those who belong to the human family, nationality if often a prerequisite to accessing these rights and thus, a lack of nationality, or statelessness, often carries dire consequences. Furthermore, regardless of international, regional and domestic laws protecting the right to a nationality, the United Nations High Commissioner for Refugees (UNHCR) estimates that more than 10 million persons are stateless worldwide. In addition to not being able to vote or run for public office, stateless persons are often unable to access other fundamental rights, such as the right to education, housing or health care. Stateless persons are also vulnerable to abuse, exploitation and human trafficking. Furthermore, despite their close connection in history, the protection of stateless persons has, for decades, taken a backseat to that of refugees and asylum seekers. As a result, stateless persons are often forced to rely on the safeguards provided by the mechanisms designed to protect refugees and asylum seekers and, while these may be able to alleviate some of the consequences of statelessness, they will never be able to provide an absolute solution to statelessness – i.e. the granting of nationality. This reliance on the asylum system is evident in South Africa, where no specific laws or procedures protecting stateless persons exist. In examining the refugee law in South Africa, the manner in which these laws are implemented, as well as other legislation relevant to the protection of stateless persons, it is evident that the South African government’s policy decisions relating to the asylum system are aiming to shrink the asylum protection space in South Africa and are inadvertently leading to situations of both de jure and de facto statelessness. In addition, the conduct of the DHA is placing large groups at risk of statelessness and leaving vulnerable groups with little to no legal remedies. In a State which hosts an estimated 10 000 stateless persons, these policy decisions and implementation practices urgently need to be addressed in order to resolve existing situations of statelessness as well as to prevent future statelessness.

This dissertation will examine how an international and regional, legal and policy framework can be used to prevent continuing sexual exploitation and abuse by international and regional peacekeepers. It will examine what the different laws and policies contained within the framework currently articulate about sexual exploitation and abuse of women and children in peacekeeping settings, and evaluate their effectiveness at preventing this kind of misconduct. This dissertation will conclude by exploring how the effectiveness of the overall framework could be further improved.

Includes bibliographical references. / As Rashida Manjoo, the UN Special Rapporteur on violence against women, suggests, women who are empowered “understand that they are not destined to subordination and violence; they resist oppression; and they develop their capabilities as autonomous beings and they increasingly question the terms of their existence in both public and private spheres.” By altering stereotypes and empowering women, GBV could be prevented from occurring in the first place, and discrimination and inequality could be mitigated or, hopefully, eradicated. Women’s human rights, and women in general, have been consistently marginalized in international and regional binding documents. This, in many ways, is a product of the stereotype that women are less important than men, and that their rights should therefore be accorded less significance – a twisted logic that only leads to women being further marginalized. The hypothesis of this dissertation is that in order to eradicate GBV in times of so-called peace, it is essential that discriminatory stereotypes of women be altered. This dissertation will examine stereotyping as an underlying cause of GBV, and whether the international and regional normative frameworks provide sufficient protections for women in regards to GBV. There will also be discussion about whether or not States comply with the obligations that do exist, and how States have (or have not) altered the behaviours and attitudes which characterize a stereotyped view of gender roles.