Claims related to the environment increasingly permeate the domain of human and fundamental rights. It is widely accepted that a direct functional relationship exists between the pursuit of environmental aims generally, and the protection of environmental rights. By and large, this relation compelled 'the environment' to have become a prominent contemporary focus point in legal thought, discourse and adjudication. Since local government operates closer to citizens than any other level of government, it is obvious that it may be expected of it to also play an important role in the management and regulation of matters that affect the environment. In the main, this study questions the extent to which the South African legal framework facilitates local government progress in the decentralised fulfilment of the section 24 environmental right in the Constitution of the Republic of South Africa, 1996. Firstly, this thesis provides a theoretical literature review of a number of approaches to, categories of and different perspectives on environmental rights in general. As part of this review a number of generic elements is identified for the fulfilment of constitutional environmental provisions, generally. The literature review attends also to the notions of local environmental governance and 'local politics of pollution', amongst other concepts related to local government. Secondly, this thesis (by employing the comparative research method and by using the generic elements for fulfilment of constitutional environmental provisions as benchmarks) critically considers the Constitution or Basic Law of the Federal Republic of Germany, 1949 (Grundgesety and relevant developments in Germany with reference to the European context and a local government case study on the municipality of Heidelberg. It considers also the Constitution of Namibia of 1990 and relevant developments in Namibia with reference to the African and Southern African contexts and a case study on the Walvis Bay municipality. The South African position is subsequently analysed, first with a focus on section 24 of the Constitution of the Republic of South Africa, 1996, environmental law and related developments, then shifting the focus to the constitutional provisions on local government, local government law, related developments and the case of the Drakenstein Local Municipality. Thirdly, based on the lessons learned from and lacunae identified in all three of the countries considered, this study concludes with a set of recommendations for the South African context. / Thesis (LL.D.) -- North-West University, Potchefstroom Campus, 2009.

Claims related to the environment increasingly permeate the domain of human and fundamental rights. It is widely accepted that a direct functional relationship exists between the pursuit of environmental aims generally, and the protection of environmental rights. By and large, this relation compelled 'the environment' to have become a prominent contemporary focus point in legal thought, discourse and adjudication. Since local government operates closer to citizens than any other level of government, it is obvious that it may be expected of it to also play an important role in the management and regulation of matters that affect the environment. In the main, this study questions the extent to which the South African legal framework facilitates local government progress in the decentralised fulfilment of the section 24 environmental right in the Constitution of the Republic of South Africa, 1996. Firstly, this thesis provides a theoretical literature review of a number of approaches to, categories of and different perspectives on environmental rights in general. As part of this review a number of generic elements is identified for the fulfilment of constitutional environmental provisions, generally. The literature review attends also to the notions of local environmental governance and 'local politics of pollution', amongst other concepts related to local government. Secondly, this thesis (by employing the comparative research method and by using the generic elements for fulfilment of constitutional environmental provisions as benchmarks) critically considers the Constitution or Basic Law of the Federal Republic of Germany, 1949 (Grundgesety and relevant developments in Germany with reference to the European context and a local government case study on the municipality of Heidelberg. It considers also the Constitution of Namibia of 1990 and relevant developments in Namibia with reference to the African and Southern African contexts and a case study on the Walvis Bay municipality. The South African position is subsequently analysed, first with a focus on section 24 of the Constitution of the Republic of South Africa, 1996, environmental law and related developments, then shifting the focus to the constitutional provisions on local government, local government law, related developments and the case of the Drakenstein Local Municipality. Thirdly, based on the lessons learned from and lacunae identified in all three of the countries considered, this study concludes with a set of recommendations for the South African context. / Thesis (LL.D.) -- North-West University, Potchefstroom Campus, 2009.

"It is submitted that South Africa presents the African Commission on Human and Peoples' Rights (the Commission) and the African Court on Human and Peoples' Rights (the Court) with inspiration to draw from on how social-economic rights can be protected. Issues of locus, defining the state's obligations, effective remedies and their enforcement can be drawn from. However, it is impossible to transpose a domestic system directly into the regional system. It is also submitted that South Africa's Constitution and jurisprudence is not without criticisms as assessed against the backdrop of international human rights law. In this respect the United Nations Committee on Economic, Social and Cultural Rights (the Committee) offers immense inspiration. Through its practice of giving normative content to the rights in the ICESCR the Committee has given extensive definition to some of the rights in the ICESCR and the obligations that attach to them. The obligation of the states to take steps to the maximum of the available resources to achieve progressively the full realisation of the rights in the Covenant has been the subject of extensive elaboration by the Committee. In addition to this the Committee has read into the ICESCR a very important concept, the principle of 'core minimum obligations'. This concept sets the benchmark in determining whether the state has discharged it obligations at the minimum level. The Commission and Court should take advantage of the provisions of the Charter which allow for inspiration from other instruments. The Charter obliges the Commission and the Court to draw inspiration from international law and human and peoples' rights, including the UDHR and other instruments adopted by the United Nations and African countries in the area of human rights. This is in addition to taking into consideration other instruments laying down rules expressly recognized by the states. This paper sets out to show that the African system can draw inspiration from South Africa and the Committee in order to surmount the challenges affecting the realisation of the rights. The paper is divided into five parts. The first part outlines the normative framework of protection of economic, social and cultural rights within the ICESCR, the African Charter and South African Constitution. The second part explores the challenges hampering the effective realisation of these rights followed by an analysis of the African Court and the lessons it may draw not only from the Committee and South Africa's Constitution but from the African Commission as well. The fourth part looks at the forth-coming African Court and its challenges, pointing to aspects on which it may seek inspiration. This will be followed by a conclusion and recommendations." -- Introduction. / Prepared under the supervision of Professor Sandra Liebenberg at the Faculty of Law, University of the Western Cape, South Africa / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

"Zimbabwe and South Africa are facing an HIV/AIDS epidemic of such proportions that the populations of these countries will markedly decline in the next ten years despite the existence of effective drugs to treat the symptoms of AIDS and dramatically lower the communicability of the virus. These drugs are under patent protection by companies in the developed world and the patents raise the prices above the level of affordability for HIV infected persons in South Africa and Zimbabwe. Zimbabwe has declared a national emergency on HIV/AIDS, apparently in conformance with TRIPS and has issued compulsory licenses to a local company that has started to manufacture and sell cheap anti-retroviral drugs. South Africa has not declared a national emergency and has not invoked the TRIPS flexibilities or utilized flexibilities inherent in its own legislation. However, while thousands of people die every week in the two countries, neither government has yet provided an effective HIV/AIDS policy. Extensive litigation and public pressure in South Africa has led the government to announce a policy of supplying free HIV drugs in public hospitals while the Zimbabwean government has announced the provision of the same drugs, also in public hospitals, apparently utilising the state of emergency. The TRIPS agreement under which the two governments undertook to protect international patents allows compulsory licensing under certain circumstances (not limited to a national emergency) and the Doha Declaration on TRIPS and Public Health, and subsequent agreements by the Ministerial Council of the WTO allow the manufacture and, in limited circumstances, the parallel importation of generic drugs. These provisions provide a theoretical mechanism for poor countries to ensure their citizens' rights of access to health (care). The research is aimed at identifying the extent of the effectiveness of the legal norms created by Articles 20 and 31 of TRIPS, the Doha Declaration and subsequent Council of Ministers' decisions, which together ostensibly provide a framework to allow provision of generic drugs. It is further aimed at investigating how the state of emergency in Zimbabwe has been utilised to provide cheap generic drugs to Zimbabweans and whether this would be an option for South Africa. A comparison of the legal provisions governing the provision of drugs in the two countries will also be undertaken to examine the extent to which international and national constitutional and legal provisions may be utilised to give effect to the right to health." -- Introduction. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2004. / Prepared under the supervision of Dr. Enid Hill at the American University in Cairo. / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

The main objective of this study is to investigate the practical treatment of Unaccompanied Minor Refugees (UMR) in Ghana and South Africa, and to explore whether such treatment is in accordance with existing international norms and standards for the protection of refugee children. The study will focus on the realisation of children’s socio-economic rights in order to measure treatment. This study also seeks to address the obstacles which prevent the full and proper treatment of UMR, and to make recommendations as to how the international community can better regulate the treatment of UMR. In essence, this paper aims to investigate whether there is a discrepancy between the rights of child refugees acknowledged in international law and the situation of UMR in practice, and, if so, how this can be remedied. This paper seeks to show, through the case studies of Ghana and South Africa, that UMR are, to a certain extent, lost in the system / 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 Mr E.Y. Benneh of the Faculty of Law, University of Ghana, Legon / http://www.chr.up.ac.za/ / Centre for Human Rights / LLM

Thesis (LLD.) -- University of Limpopo, 2021 / Access to land in South Africa has become a pressing concern and one that needs special attention. This is so despite the advent of democracy in 1994 which brought legislative frameworks and other measures promoting access to land. This study seeks to demonstrate the importance of accessibility of land to ensure realization of socio economic rights through productive use of land and consequently contribute to poverty alleviation and sustainable development in South Africa. The study examines adequacy of access to land and productive use of such land by evaluating the effectiveness of delivery of land reform program. The study emphasises that productive use of land should be strengthened in order to ensure acceleration of realization of sustainable socio-economic rights such as provision of food and better living conditions for land reform beneficiaries. The study further encourages the need to strengthen legislative measures and compliance in order to improve the delivery of post-settlement support services to land reform beneficiaries. The Legislation such as Restitution of Land Rights Act, Provision of Land and Assistance Act , Extension of Security tenure Act and Land Adjustment Act were promulgated and mainly aimed at addressing and regulating the allocation or distribution of land to persons or communities who were previously dispossessed of their land and further made provisions for instances where one or more persons claim ownership of land, but do not have registered title deeds in respect thereof, and to provide for incidental matters. There is a need for radical enforcement of laws, legislation, and regulations promoting access to land through restitution, redistribution and strengthening tenure reform in order to realize the delivery and enjoyment of socio-economic rights through productive use of land. This study reviews laws and regulations in an attempt to utilize land as a tool to alleviate poverty and accelerate sustainable development in South Africa, which will enable people to gain access to essential services particularly in rural areas. Therefore, there is a need to ensure that redistributed land is used productively to improve the lives of land reform beneficiaries

The dissertation critically examines and compares the decisions of the Constitutional Court and the High Courts in cases dealing with the right to life, as contained in section 11 of the Constitution of South Africa Act 108 of 1996. The dissertation analysis the issues of adjudication and the concept of justice in perspective. The main question is as follows: Are the Constitutional Court decisions objective, based on the interpretation of the constitutional text, or do they rather reflect the individual judge(s) personal perspective(s) or preference(s). The purpose of this dissertation is to undertake a comparative study and analysis of the Constitutional Court decisions on the right to life, same aspect from different perspective, and show that the right to life is not given proper effect to on account of the subjective approach to its interpretation undertaken by the judges. It examines and scrutinises the Constitutional Court’s adjudication process. It found that the law is indeterminable, because the court’s decisions are not based on the interpretation of the law, but on the individual judges’ background and personal preferences. This is so because the court uses the majority rule principle in its decisions: The perception of the majority of the judges becomes a decision of the court. It is argued that when taking a decision a judge does not apply the law but instead uses the law to justify his predetermined decision on the matter. The conclusion supports the critical legal scholars’ theory relating to the indeterminacy of the law. It tests the objectivity of the judges using their own previous decisions. / Criminal & Procedural Law / LLM

Cette étude a pour but de présenter le dialogue entre les juges de la Cour européenne des droits de l’homme (CEDH) et de la Cour interaméricaine des droits de l’homme (CIADH), deux Cours régionales supranationales, visant toutes deux à garantir le respect des droits fondamentaux. Le dialogue est étudié à travers l’analyse du contentieux portant sur l’intégrité de la personne humaine et sur la protection des droits économiques et sociaux. Ce sujet se rattache au contexte de mondialisation qui vient transformer les relations de pouvoir et révèle l’émancipation des juges dans la régulation transgouvernementale. Le présent mémoire conclut que le dialogue vise à établir une cohérence entre les systèmes afin de faire prévaloir une vision commune des droits de l’homme à travers la constitution d’un espace euro-américain, tel un réseau d’échange informel. Néanmoins, le dialogue est limité par certains facteurs contextuels liés aux réalités contrastées des deux systèmes régionaux ainsi que par la volonté des acteurs étatiques. / This research aims to present the dialogue between judges of the European Court of Human Rights (ECHR) and the Inter-American Court of Human rights (IAHR). These two supranational regional courts both aim at ensuring respect for fundamental rights within their jurisdiction. The dialogue between them is analysed through the study of disputes regarding the integrity of human being and the protection of economic and social rights. This subject is greatly linked to the context of power shifts induced by globalization and reveals how judges are emancipating themselves through transgovernemental regulatory networks. In conclusion, this thesis demonstrates the dialogue’s objective to establish a certain coherence between the systems and to allow a common vision of human rights to be brought forward through the constitution of an informal exchange network now known as the Euro-American interspace. However, the dialogue is restricted by many contextual factors and the contrasted realities of the two regional systems, as well as the will of state actors.

The dissertation critically examines and compares the decisions of the Constitutional Court and the High Courts in cases dealing with the right to life, as contained in section 11 of the Constitution of South Africa Act 108 of 1996. The dissertation analysis the issues of adjudication and the concept of justice in perspective. The main question is as follows: Are the Constitutional Court decisions objective, based on the interpretation of the constitutional text, or do they rather reflect the individual judge(s) personal perspective(s) or preference(s). The purpose of this dissertation is to undertake a comparative study and analysis of the Constitutional Court decisions on the right to life, same aspect from different perspective, and show that the right to life is not given proper effect to on account of the subjective approach to its interpretation undertaken by the judges. It examines and scrutinises the Constitutional Court’s adjudication process. It found that the law is indeterminable, because the court’s decisions are not based on the interpretation of the law, but on the individual judges’ background and personal preferences. This is so because the court uses the majority rule principle in its decisions: The perception of the majority of the judges becomes a decision of the court. It is argued that when taking a decision a judge does not apply the law but instead uses the law to justify his predetermined decision on the matter. The conclusion supports the critical legal scholars’ theory relating to the indeterminacy of the law. It tests the objectivity of the judges using their own previous decisions. / Criminal and Procedural Law / LL. M.

South Africa's transition to constitutional democracy marked the end of a system of government that perpetuated injustice on the basis of race. The previous system of government, underpinned by the principle of parliamentary supremacy, did not only exclude the majority of the population from public governance processes, it also economically exploited the majority of the population. As such, it laid the foundation for widespread poverty and inequalities in access to basic services. The Constitution of the Republic of South Africa, 1996 (the Constitution), is committed to correcting these past injustices and aims to establish a society based on social justice. This constitutional vision finds expression in the notion of transformative constitutionalism. Klare introduced the notion of transformative constitutionalism over a decade ago. For purpose of this thesis, the notion represents the socio-economic and political vision of post-apartheid South Africa to eradicate extreme poverty and inequalities in access to basic services as well as establish a democratic system of government that is inclusive, caring, participatory, representative and accountable. It captures the constitutional commitment to establish and maintain a society based on social justice by inter alia, eradicating poverty and inequalities in access to social services. The realisation of the socio-economic rights entrenched in the Bill of Rights of the Constitution (by all organs of state) is one of the ways in which to contribute towards meeting this transformative constitutional mandate, and by extension, striving towards the attainment of social justice. Although transformative constitutionalism and the achievement of a socially just society remain an ideal, the Constitution as the supreme law in the country, obligates the state, constitutive of public and private entities, to work towards its realisation, to the fullest extent possible. As part of post-apartheid institutional transformation, the Constitution established three spheres of government – national, provincial and local - which are distinct, interrelated and interdependent. All three spheres are obliged to operate in accordance with the principles of co-operative government and intergovernmental relations and are co-responsible for realising a number of constitutional objectives. Since 1996, the Constitution obliges local government (municipalities) to play an expanded "developmental" role. This has marked a move away from local government being regarded as merely a service delivery arm of government. xii The extended function of local government that came about with the constitutional dispensation finds expression in the notion of "developmental local government". This study is based on the premise that developmental local government must and can, together with the authorities in the other two spheres, contribute to transformative constitutionalism and social justice. Primarily, this study questions the extent to which the legal and policy framework on local government in South Africa enable local government (municipalities) to contribute towards realising the constitutional socio-economic rights underpinning the mandate of transformative constitutionalism. This study presents a review of relevant literature in order to establish links between the theoretical concepts underpinning this thesis. It examines the legal and policy framework on "developmental" local government in South Africa and analyses the central legal framework for the realisation of socio-economic rights at the local government level. In addition, the study explores the relevance and potential of local government indigent policies and Integrated Development Plans (IDPs) - as legally prescribed governance instruments - in contributing towards a more just society by examining their underlying legal and policy framework. It further distils from the theories and perspectives of social justice, benchmarks to guide local government towards achieving the transformative constitutional mandate aimed at social justice. Based on the legal, policy and other gaps identified, recommendations are made on how to optimise the potential of IDPs and municipal indigent policies in contributing towards achieving social justice. / PhD (Law), North-West University, Potchefstroom Campus, 2014