Includes abstract. / Includes bibliographical references (leaves 143-150). / Fourteen years have passed since the first democratic election in South Africa and twelve since the enactment of the Bill of Rights and the final Constitution. In that time period, the way South Africa has been perceived both domestically and abroad has fluctuated greatly.

Includes bibliographical references (leaves 110-113). / My primary concern in this paper is to develop an account of freedom which incorporates within its very definition a moral responsibility to others, and which is therefore automatically limited by the conditions of its own exercise. It is my view that freedom, conceived in this way, leads ineluctably to a mandate to respect and promote the dignity of all others. When this freedom is objectively realised through the law in the form of direct horizontality of human rights, it breathes new life into the substantive legal revolution which took place in South Africa in 1994, and which ultimately led to the Constitution being grounded in the Fundamental principle of human dignity. My paper begins with a brief account of apartheid, focusing particularly on the way in which violent racial oppression was embodied in law. I then proceed to draw on the legal sociology of Niklas Luhmann, whose account of the legal system as a normatively closed, self-referential system produces two important insights for using the law as a tool for social justice. First, Luhrnam-1's conception of how societal sub-systems, including the law, feed off one another's complexity to generate new operations shows us that the deeply systemic nature of South Africa's socio-economic problems can be sourced in the deeply systemic nature of the apartheid laws which produced them. Vi/hat this means for us now is that the legal system as a whole cannot merely adopt a stance of neutrality and formal equality in the hope that this will produce a more equal and just society; rather, the entire legal system must make positive moves, most notably in the form of direct horizontality, to counter the ongoing effect of the morally bankrupt laws of the past. Luhmann's second insight is that the law is not inherently grounded in ethical principles, which means that the legal system often operates with harsh results for poor and disadvantaged South Africans. What this means then, is that we must find a way for the law to continually transcend itself and ground itself in substantive ethical principles, even if this endangers the continued existence of the law as a relatively autonomous, operatively closed system. My paper then proceeds to develop an account of freedom which promotes this sort of transcendence in the law. This account proceeds, in the first place, by explaining Immanuel Kant's defence of the possibility of our free will. Kant showed us that, whilst we cannot know ourselves definitively free, we can and indeed must posit ourselves as free in order to live up to the aspirations of our humanity. Kant shows further that positing ourselves as free requires that we exercise our freedom in the only meaningful way we can, which is to determine our free will on the basis of a moral law we lay down for ourselves and others. Secondly, my account draws on the work of Georg Hegel to show that freedom not only consists in relationships of mutual recognition between independent and free beings, but that we must objectively realise this freedom in our laws and institutions if it is to have any meaning for us at all, and if we are fully to live up to the demands of our free and rational nature. After having developed my account of freedom as morality in the law, I explain the true nature of direct horizontality both in theory and in practice, and show that placing legal duties on individuals to promote the well-being of others through direct horizontality is not only permissible in terms of our Constitution, but is in fact essential if we are to live up to the Constitution's mandate to respect the dignity of all others.

Includes abstract. / Includes bibliographical references. / The introduction of the Traditional Health Practitioners Act 22 of 2007 has made lawful the practice of traditional healing. As everyone has the right of access to health care services, the question of whether the state bears a duty to reasonably provide access to traditional healing as an element of its public health care service, is raised. In a democratic society, law must be responsive to the needs of the populace. Ethnographic fieldwork demonstrates that traditional healing is used not in opposition to, but as a complementary twin of, biomedicine. Considering this, it shall be argued that economically, socially and medically, the incorporation of traditional healing into the public health care service is neither appropriate nor required by the Constitution.

A Social and Labour Plan (‘SLP’) contains the comprehensive development programmes that a mining right holder must create and implement to benefit a mining affected community. An application for a mining right must be accompanied by an SLP. Additionally, SLPs must contain development programmes that address human resources and local economic development. This dissertation considers whether the SLP System perpetuates an enclave approach to development (‘enclave development’). Enclave development occurs where mining companies develop physical infrastructure, such as roads and electricity, to support their extraction of natural resources. The definition relied on in this dissertation goes a step further to include the implementation of social programs that only target specific areas surrounding mining operations. Assuming that the SLP system indeed perpetuates enclave development, the dissertation also inquires whether this can be remedied with reference to the African Mining Vision (‘AMV’). The hypothesis that the SLP System perpetuates enclave development was initially borne out of the Marikana Commission of Inquiry, which revealed issues with a British mining company’s SLP compliance. Relying on an enclave development approach is particularly problematic in South Africa, as it neglects the development of labour-sending areas and other poor communities that happen to be far from mining operations. By considering the AMV, it becomes evident that elements of the AMV’s proposed strategy of Resource-based Industrialisation are being pursued in South African mineral law and policies. The issue then arises whether the AMV can provide insight. Is it the case that South Africa has not yet seen the benefits of pursuing a Resource-based Industrialisation (‘RBI’) strategy because government is yet to maximise its implementation? Alternatively, are the critiques levelled against the AMV’s RBI strategy valid, hence its inability to speak to the South African SLP System? The critiques levelled against an RBI strategy are that: (a) it perpetuates the colonial model of resource extraction (thus explaining why South Africans fail to see the positive impact of this industrialisation strategy) and (b) it fails to address the negative social and environmental costs of pursuing a minerals based industrialisation strategy. Were one to support the argument that South Africa should work towards the full implementation of an RBI strategy, then the AMV’s proposal of localising the benefits of mining are appealing. The AMV proposes that a government establishes clear fiscal linkages with mining operations, that there be a clear revenue distribution system and the establishment of a Sovereign Wealth Fund. The development of fiscal linkages and a clear revenue distribution system would enable government to re-invest and distribute the revenue to local government, so that labour sending areas and poor communities benefit from mining. The portion of the revenue from mining would be invested into a Sovereign Wealth Fund and the revenue would ensure future generations also benefit from mining. The above approach, to localising the benefits of mining as opposed to relying on SLPs, returns primary responsibility for ensuring social development to the South African government. Governments are inherently far better capable than mining companies at ensuring far reaching social development and promoting socio-economic development. This dissertation concludes by asserting that at a theoretical level, although the AMV does provide insight that could potentially curtail the perpetuation of enclave development by the SLP System, whether these insights are worth implementing, and whether they can be implemented by the South African government, in the light of the compelling critiques levelled against the AMV’s RBI strategy needs further research.

The majority of refugee and migrant women who are travelling to Europe to seek asylum in the European Union are coming from war-torn countries in order to seek asylum from war or gender-based violence. This is due to the fact that women and children are often targets during war. They may be victims of forced marriages, forced abortions, genital mutilation, genderbased violence, sexual gender-based, rape and murder. Furthermore, these crimes are taking place on refugee routes leading into the European Union and in informal camps within the Union. These informal camps grow rapidly and the refugee populations always outgrow the availability of resources. As a result men and women cannot be housed separately thereby putting women at risk of gender-based violence, sexual harassment and rape. The dilemma therefore faced by refugee women is two-fold; the 1951 Refugee Convention does not mention gender as grounds upon which women can seek asylum meaning women who have suffered persecution and violence on the basis of their womanhood cannot qualify for refugee status and international protection. Secondly, the unsafe conditions of camps and some reception centres in Europe which exposes women to further forms of violence serves to compound their suffering and trauma and also amounts to further violations of their rights. Although EU Member States are aware of these matters, not much practical action has been taken to ensure safety and protection for refugee women.

Includes bibliographical references. / This dissertation's primary hypothesis is that the angst-spawning confusion plaguing this area of law stems from a feckless amalgamation of parallel, if not competing, notions of loss. Let me explain. When a promisee seeks judicial relief for breach, the court habitually applies two deeply-ingrained presumptions of fact whose status has been unconsciously elevated to rules of law.10 These judicial presumptions are that: 1. The promisee's concern is loss of performance and not loss of promise; and (After confining the matter to loss of performance) 2. The promisee's performance interest is essentially pecuniary value (profit) and not non-pecuniary value (utility). The Addis case illustrates the sad result of focusing on performance in a situation where the predominant loss caused by breach is promissory in character (Presumption 1). Farley, on the other hand, promotes the commercial agenda by perpetuating the notion that financial loss is the premier interest of contract as law (Presumption 2). This dissertation tests the above hypothesis by evaluating the prohibition on mental distress damages.

Once known as the Gold Coast due to minerals, Ghana has very little to show for that. The revenue generated from minerals in Ghana went into the Consolidated Fund associated with mismanagement and corruption. Auditor-General's annual reports support this assertion, and the Commission of Inquiry set up to investigate the source of the wealth of politicians, and public officials confirmed mismanagement of State resources. Ghana enacted the Petroleum Revenue Management Act (PRMA) upon discovering oil and separated the oil revenue from the Consolidated Fund. The PRMA guides the management of oil revenue to benefit all Ghanaians and cause growth. Despite the PRMA, Ghanaians are pessimistic about the management of the oil revenue due to mismanagement issues. It includes the Finance Minister's discretionary power, capping the Ghana Stabilisation Fund, transferring the Annual Budget Funding Amount into the Consolidated Fund, oil revenue spent in ways not provided for by the Act, institutional weakness, and lack of national development plans. The thesis seeks to determine how the enactment of the PRMA would help deal with mismanagement through a socio-political analysis of the Act. It does so by discussing the PRMA of Ghana critically, taking into account lessons from Botswana and Norway on a series of subquestions: a) the discretionary powers of decision-makers and its effect on the management of oil revenue, b) features of quality institutions that aid the management of resource revenue, c) how various types of funds and their utilisation assist the management of oil revenue d) the role of policy planning and project reporting dealing with non-compliance. The thesis deliberates these issues, focusing solely on the PRMA and its mechanisms to achieve transparency and accountability. It considered the reports issued by the Auditor-General and the Public Interest Accountability Committee (PIAC) on the utilisation of created funds and the lack of institutional autonomy. The thesis shows that although the PRMA has its strengths, flaws remain and these surface, especially in implementing the law. The design of the PRMA creates a discrepancy between its objectives and its operation requiring legislative reform. Looking at these weaknesses more closely, the thesis argues for a paradigm shift to precede recommended legislative reform to assuage the fears of Ghanaians by offering recommendations for improving the PRMA to optimise the oil revenue.

For many years, medical malpractice claims have threatened the effective governance of health care sectors the world over. South Africa is not exempt from the effects of this phenomenon. The effects of increasing medical malpractice claims and their associated costs threaten the effective governance of the private and public health care sectors, which results in a vicious cycle of resource depletion, poor service delivery and constantly increasing rates of medical malpractice incidents. This research aims to add to the body of work in South Africa concerning the adverse effects of medical malpractice claims. This dissertation provides a theoretical discussion on whether periodic payments and alternative dispute resolution are satisfactory responses to combat both the rising cost of damages and the procedural backlogs present within the law of delict and medical malpractice litigation in South Africa to achieve comprehensive reform in the law of delict. Ultimately, this dissertation examines the practical legal issues that have led to the current medical malpractice crisis in South Africa. The dissertation examines the role of aspirational health care policies, goals and agendas (specifically section 27 of the Constitution of the Republic of South Africa) that have been implemented on a national level, and it also examines the ability to implement comprehensive reform to address the medical malpractice crisis to hopefully break the vicious cycle that is keeping South Africa from achieving its national and constitutional health care goals.

This thesis is about analysing the political rhetoric of the National Council of Provinces (NCOP), in overseeing the implementation of South Africa's National Development Plan (NDP).1 The study seeks to define the underlying reasons which, compound slow policy implementation, particularly as exacerbated by weakened and misaligned policy oversight debates in the NCOP. This study is particularly important because the NDP is the long-term vision and development plan of the governing African National Congress's vision 2030. Findings from the National Planning Commission's Diagnostic Report which, was released in June 2011, indicated that “a failure to implement policies and an absence of broad partnerships have been identified as some of the main reasons for the slow progress in implementing the country's transformation policies.” 2 In addition to these prevailing conditions, “it is also imperative to note that South Africa had found itself in the middle of a technical recession and had still been grappling with the impact and aftermath of the Global Financial Crisis, at the time when the NDP was adopted in 2012. 3 ” “The global financial crisis had a dire impact on the South African labour market, resulting in the shedding of almost 1 million jobs over 2009 and 2010, reflecting longer term structural problems.”4 The NDP was hence developed in part, to address the impact of the 2008 global financial crisis, alongside growing and prevailing social and economic challenges in South Africa. Inherited inequalities had been exacerbated, in part by the fact that Parliament and particularly the NCOP, had not been able to adequately give full effect to its three sphere oversight role as underpinned by its cooperative governance and intergovernmental relations constitutional mandate. Consequently, this has led to an inability to meaningfully oversee and accelerate the implementation of South Africa's transformation policies. The study will place strategic focus on how the quality of arguments communicated in the NDP could either catalyse or impede the oversight and accountability work of the NCOP, thereby inadvertently decelerating the implementation of the NDP. The study also provides an overarching perspective of South Africa's broader rhetorical situation, which manifest as exogenous shocks within the NCOP's operating environment. The overarching rhetorical situation is also postulated as one of the key determinants, impacting how the NCOP approaches and shapes its policy debates. Specific emphasis will also be placed on the National Council of Provinces (NCOP) in the fifth parliament (particularly the 2015 appropriations budget vote process) and how the second chamber of Parliament has for purposes of executing its constitutional mandate of three sphere oversight and accountability, interpreted, synthesized, and as a result executed its oversight functions, based on the rhetoric of the NDP in relation to the outcomes in the NDP that focus on the economy, employment, and the NDP's commitment to building a capable developmental state. This study is of great importance and is necessitated by the imperative to ensure that the NCOP matures in its role as construct of South Africa's constitutional democracy, which is tasked with the important responsibility of undertaking three-sphere oversight to oversee the implementation of key development policy constructs and development catalysing legislation, as guided by the NDP.

The South African Government has an interest in ensuring that South Africa derives benefit from the exploitation of its natural resources. In the South African mineral and mining industry, this interest extends to the proceeds acquired from participation therein. Participation in the mineral and mining industry, however, is high risk, capital intensive and often has long lead times from exploration to production. Due to these factors, exploiting South Africa's mineral resources with recourse to purely domestic financing, expertise and/or equipment is challenging, if not impossible. Therefore, the industry requires capital, investment, and input from foreign sources, namely by way of Foreign Direct Investment (FDI). To ensure that foreign participation in its mineral and mining industry allows for domestic benefit, and that said benefit is enhanced in accordance with its policy objectives, the South African Government has formulated and imposed Local Content Requirements (LCRs) for the industry. This dissertation analyses the question of whether the LCRs formulated and imposed in the South African mineral and mining industry promote the attraction of FDI. The argument made is that the overarching factor influencing the decision to invest in the South African mineral and mining industry is certainty. Pursuant thereto, this dissertation argues that, as presently formulated and implemented, the LCRs applicable to the South African mineral and mining industry do not ensure certainty and, accordingly, do not promote the attraction of FDI. In the light of this conclusion, this dissertation offers two recommendations to the South African Government to enhance certainty in respect of the LCRs applicable to the South African mineral and mining industry for the purpose of promoting the attraction of FDI.