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

"The relevance of social and economic rights to societal welfare and well-being need not be overemphasised. The quality of life enjoyed by the citizenry is directly related to the level of enjoyment of social and economic rights in any particular country. However, the enjoyment of social and economic rights is, in turn, largely predicated on the manner in which national resources are managed and directed towards obligations raised by social and economic rights. It is axiomatic, therefore, to devise a framework that ensures that managers of public resources operate within an environment where their actions in relation to the management of national resources are governed by transparency and accountability. In the light of the above, this study explores the relationship that exist between the social trust concept and leadership roles, particularly in as far as duty bearer accountability for social and economic rights is concerned. The study argues that social trust based devices can be used to enhance duty bearer accountability in relation to social and economic rights and that such increased duty bearer accountability will automatically serve to better the welfare of the citizenry. The viability of recognising and enforcing social trust based accountability mechanisms is highlighted by exploring its relevance to Malawi and Uganda. The crux of the study is that public functionaries must always be amenable to censure by the citizenry if diligence is to be infused in the performance of their duties and the social trust concept offers adept mechansisms for achieving this." -- Abstract. This study consists of five chapters. Chapter one provides the context and foundation of the study. Chapter two is devoted to explaining the nature and scope of the social trust concept and how it can validly, if at all, be extended into the public law realm. Chapter two also expounds on some basic concepts employed in the study. Chapter three is aimed at providing and understanding of leadership roles and explaining their relevance to social economic rights. Briefly put, chapter three explores the interface between social economic rights and social trust based leadership roles. Chapter four discusses the benefits of revitalising a social trust based conception of leadership roles particularly by highlighting why Malawi and Uganda need social trust based leadership roles. The chapter also outlines how the benefits of a revitalised duty bearer accountability can be realised. Chapter five will present the study's conclusions and recommendations." -- Introduction. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2005. / Prepared under the supervision of Dr. Ben Twinomugisha at the Faculty of Law, Makerere University, Uganda / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

Malawi is a state party to a number of international human rights instruments that guarantee the rights of children with disabilities (CWDs), which include the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD); the UN Convention on the Rights of the Child (CRC); and the African Charter on the Rights and Welfare of the Child (ACRWC). The instruments guarantee the right to education, among other rights. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2011. / http://www.chr.up.ac.za/ / nf2012 / Centre for Human Rights / LLM

LLM / Department of Mercantile Law / Scholarship on the subject of Corporate Social Responsibility (CSR) highlights its four components: economic, legal, ethical and philanthropic responsibility. In South Africa, while the economic, legal and ethical components of CSR are regulated and attract punitive measures for erring corporations who fail to adhere to such demands, the application of the philanthropic aspect of CSR is problematic. The application of philanthropic responsibility suffers normative, institutional and accountability deficiencies in South Africa. Hence, corporations do not conscientiously direct philanthropic responsibility towards achieving core socio-economic needs of their host communities. In the light of international human rights standards relevant to CSR, this research attempts to examine domestic laws which regulate the practice of CSR in South Africa and advance how the philanthropic aspect of CSR can be developed to achieve the realisation of socio-economic rights, in particular, the rights to access to health care, water and social security, education, housing and clean environment. The argument is made that through the formulation and application of an appropriate legal framework, philanthropic CSR can play a contributory role to the realisation of socio-economic rights recognised under the 1996 South African constitution. The implications are that in appropriate cases socio-economic rights do not only bind the state and consequently apply to the "vertical" relationship between individuals and the state, but could also apply "horizontally", in respect of the relationship between private entities. This is a controversial issue and its full implications have not yet been resolved.

Philosophiae Doctor - PhD / Local government in South Africa is an autonomous policy implementation arm of the government system. The purpose of this study was to examine the institutional, organisational, and human resource capacity challenges the Saldanha Bay and Swellendam Municipalities in the Western Cape faced in their policy implementation especially on poverty alleviation. The objectives of the study were to develop a theoretical framework for examining institutional, organisational and human resource capacity in the Saldanha Bay and Swellendam Municipalities; to discuss the local government constitutional, legislative and policy framework within which the Saldanha Bay and Swellendam Municipalities delivered services to communities; to examine the capacity challenges in the service delivery of the Saldanha Bay and Swellendam Municipalities and, thereby, highlight operational problem areas; and to make general policy recommendations on the basis of the research findings of the study. The methodology used was the case-study approach. It allowed an in-depth understanding of the dynamics present within Saldanha Bay and Swellendam municipality. The methodology enabled the researcher to answer the research question: In what ways, and with what results has institutional, organisational and human resource capacity affected service delivery in the Saldanha Bay and Swellendam Municipalities in the Western Cape? The major findings of the study were that local government capacity for policy implementation is directly influenced by the presence or otherwise of institutional, organisational and human resource capacity. These dimensions of capacity are mutually inclusive, independent and interrelated in practice. The study makes several policy recommendations. In the area of institutional capacity the recommendations were that floor-crossing legislation and practices must be done away with; that weak capacitated municipalities ought to be alleviated by public - private partnerships as a mechanism to enhance a municipality's ability to develop and implement policy; and that instead of solely setting standards and monitoring performance, the provincial treasury should assist municipalities to acquire financial competencies. In the area of organisational capacity it was recommended that the community ought to participate in the recruitment and selection committee of the Municipal Manager. It was also recommended that municipalities should establish district-wide forums for financial heads whose purpose would be to create a platform for collaboration, and for the exchange of ideas. And in the area of human resource capacity it was recommended that district municipalities ought to assume a more prominent role in building the capacity of the local authorities with which they share legislative and administrative powers. It was also recommended that both the administrative and political leadership ought to participate in compulsory executive and/or leadership training programmes SALGA implements through some tertiary educational institutions and/or through private service providers.

Doctor Legum - LLD / The UN Convention on the Rights of Persons with Disabilities (CRPD) is the latest human rights treaty at the UN level. The process leading to the adoption called attention to the plight of persons with disabilities, and redefined approaches to issues of disability. Fundamentally, the CRPD embodies a paradigm shift in thinking about disability. It embraces the social model of disability, in terms of which disability is a function of the interaction between a person with impairment and his or her environment as opposed to an inherent limitation of functioning. The social model is, in turn, anchored in a human rights approach to disability. No doubt, the adoption of the CRPD triggered immense optimism for the realization of the rights of persons with disabilities. One of the rights recognised under the CRPD is the right to education. Article 24(1) of the CRPD recognises the right of persons with disabilities to education and sets out the aims of such education. Article 24(2) sets out a number of principles to guide the implementation of the right. These include: non-exclusion from the general education system including non-exclusion of children with disabilities from free and compulsory primary education; access to inclusive quality and free primary education on an equal basis with other children in the communities in which children with disabilities live; reasonable accommodation of a student’s needs; provision of support necessary to facilitate effective education; and provision of individualised support measures in environments that maximise academic and social development of the students with disabilities. It is generally accepted that the right to education is one of the most essential rights, particularly in light of its empowerment function that helps to facilitate the exercise of other rights. The primary level of education has particularly attained global recognition and priority in resource allocation and implementation. Primary education contributes significantly to the maximum development of the full human potential of children. There are therefore differentiated obligations for the right to primary education in international human rights. Nevertheless, there are still significant barriers to access to primary education, particularly in the African region. While children with disabilities have been excluded from education for a long time the world over, their exclusion in the African context is particularly endemic. The core purpose of this thesis is to determine how article 24(2) of the CRPD affects or is likely to affect primary education of children with disabilities, particularly in the context of developing countries. The focus of the enquiry is mainly the law and policy in this regard. The subject spans three main spheres of rights: children’s rights, socioeconomic rights (particularly the right to education), and finally disability rights. Children’s rights, especially since the adoption of the Convention on the Rights of the Child (CRC), are generally accepted. The right to education also has a long standing history, and whereas debate regarding the appropriate approaches to its implementation still abides, there is apparent normative and jurisprudential consensus on some aspects thereof, particularly at the primary education level. It is essential to determine the relational framework of these spheres with the disability rights established under the CRPD. The thesis finds that the CRPD does in fact redefine the parameters of the right to education as previously understood in international human rights instruments. Particularly, the expanded aims of education under article 24 call for education systems that recognise non-academic learning, such as the development of the talents or creativity of the learner. This provision is particularly significant to the child with disabilities. Also, while not establishing an entirely new right, the principles under article 24(2) establish actionable sub-entitlements that enhance the justiciability right to education for children with disabilities. However, it is apparent from the comparative studies that it is the implementation of these provisions that presents the greatest challenge for the realisation of primary education for children with disabilities. This suggests that whereas norm creation as under the CRPD may have the value of triggering and sustaining discourse on appropriate responses in the context of the education of children with disabilities, it is the translation of these norms into practical action points that is the determining factor for realization of the right. / South Africa