Six out of every ten children in South Africa are living in poverty. This situation is aggravated by the AlDS pandemic. The pandemic is also the cause of a generation of AlDS orphans and as a consequence a lot of pressure is put on society's resources. Although the fundamental rights of children are entrenched in the Constitution of the Republic of South Africa, 1996, the current legal and administrative framework is not being implemented effectively in order to realise these rights. The Constitutional Court has adjudicated upon several matters regarding the realisation of socio-economic rights, thereby confirming that socio-economic rights are indeed justiciable. This research is specifically concerned with the realisation of children's right to have access to health care as entrenched in sections 27 and 28(l)(c) of the Constitution. Read with section 7(2) of the Constitution, this right places negative as well as positive obligations on the state to respect, protect, promote and fulfil children's right to have access to health care. Children's right to health care are however dependent on the internal limitations contained in section 27(2) of the Constitution which states that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. Having ratified the UN Convention on the Rights of the Child (CRC), the state is further bound to recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. Parties to the CRC shall also strive to ensure that no child is deprived of his or her right of access to such health care services. Good health is dependent on more than a mere right to have access to health care. In order to ensure the highest attainable standard of health for all children, it is necessary that the available services are affordable and accessible on an equitable basis. Access to health care should be seen as part of a more comprehensive social protection package to ensure a minimum standard of living, consistent with the value of human dignity in our Constitution. In order to achieve this, the fragmented health care system which existed before 1994 and which was mainly a result of the previous dispensation of oppression and racial discrimination, had to be transformed in order to reach the ideal of improving the quality of life of all citizens as contained in the preamble of the Constitution. Ten years after the inception of the new constitutional dispensation, it can be said that the government is making progress with the transformation of the health system and making it accessible to all people, including children. After extensive research on the legislative and other measures that the government has implemented in order to realise children's right to access to health care, the following conclusions has been reached: State policies regarding health care are taking account of the needs of children as a vulnerable group of society and it can be said to be reasonable in the formulation thereof. Regarding the implementation of these policies, much remains to be done to ensure that the benefits thereof reach the children, especially more vulnerable groups such as street children and child-headed households - a common occurrence with the high prevalence of HIVIAIDS in South Africa. The enactment of the National Health Act 61 of 2003 is still awaited although it has already been signed. This legislation provides a national framework of norms and standards regarding the health care system and it is mainly based on the rights of patients. A new Children's Bill [B32 - 20031 has been introduced to parliament. The bill deals extensively with the rights of children as contained in the Constitution and also aims to give effect to governments' obligations in terms of the CRC. The enactment of the bill should be given priority, although measures should be implemented to ensure that health care services are also accessible to children who are not assisted by adults such as child-headed households. The allocation of public funds should be considered in order to provide better social assistance to families in dire need but mechanisms to ensure that children benefit from social grants must be implemented. Many of these grants are being abused by parents which means that although the grants are available, the money is not always spent to better the plight of the children. This is especially important in the light of the fact that the primary obligation to take care of children vests in the parents. The courts and especially the Constitutional Court, has taken their role in realising socio-economic rights seriously and very important guidelines has been formulated regarding the reasonableness of legislative and other measures in this regard. After the Khosa-case it should be said that although the courts are allowed to overstep the boundaries of separation of powers, they should not rewrite these boundaries by not taking appropriate account of the availability of financial resources. This also applies to the executive and legislature which should act more effectively to implement the court's decisions. The Human Rights Commission is playing an important role with regard to the realisation of socio-economic rights by monitoring and evaluating the implementation of government programmes and legislation. The Commission also provides valuable guidelines with regard to the realisation of socio-economic rights in the form of annual reports submitted to parliament. It is submitted that the Commission should however consider to define minimum core obligations of socio-economic rights since the Commission is better equipped to do this than the courts are. / Thesis (LL.M. (Public Law))--North-West University, Potchefstroom Campus, 2005.

The Thesis begins with an analysis of the effects of environmental disasters and various approaches of states to mitigate them. The results of this analysis evidence that while some effects of environmental disasters are more visible and easier to evaluate, as in the case of sudden onset disasters, others are less visible and grow more deadly over time, as in the case of slow onset disasters. Moreover, the effects of environmental disasters on people depend heavily on the state’s capacity to mitigate such effects. Then Author of the Thesis turns to the existing definitions for environmentally displaced people and as all existing definitions do not take into account the level of state protection available, a new definition is proposed. The new definition limits the scope to people seeking international protection due to environmental events, for which their country of origin does not offer any protection. It is analyzed in the second part of this Thesis the application of 1951 Geneva Convention to environmentally displaced people. Based on the assessment of state practice and the works of the most prominent scholars it is showed that environmentally displaced people may in fact be refugees, however, in a very small number of scenarios. The problem is that all of those scenarios are traditional refugee situations and environmental factors are not decisive circumstances when migration authorities determine if person is entitled to refugee status. Socio-economic rights within... [to full text] / Magistro baigiamasis darbas pradedamas gamtinių nelaimių sukeliamų padarinių ir valstybių veiksmų siekiant sumažinti jų padarinius analize. Analizė rodo, kad kai kurios gamtinės nelaimės gali būti lengviau pastebimos, tokios kaip staigios gamtinės nelaimės, o kitos sunkiau pastebimos ir įvertinimo, tokios kaip iš lėto besivystančios gamtinės nelaimės. Be to, gamtinių nelaimių padarinių sunkumas priklauso nuo to ar valstybė yra pajėgi sumažinti padarinius. Tuomet Magistro baigiamajame darbe yra analizuojami esami dėl gamtos nelaimių migruojančių asmenų apibrėžimai ir atsižvelgiant į tai, kad visi esami apibrėžimai nevertina kilmės valstybės teikiamos apsaugos, yra siūlomas naujas apibrėžimas. Šis apibrėžimas yra apribotas žmonėmis, siekiančiais tarptautinės apsaugos dėl gamtinių nelaimių, kurie negali pasinaudoti kilmės valstybės apsauga. Antrojoje šio Magistro baigiamojo darbo dalyje analizuojamas 1951 m. Ženevos Konvencijos „Dėl pabėgėlių statuso“ taikymas dėl gamtinių nelaimių migruojantiems asmenims. Atliktas valstybių praktikos ir doktrinos tyrimas atskleidė, kad dėl gamtinių nelaimių migruojantys asmenys gali būti pabėgėliais, tačiau tik išskirtinais atvejais. Be to, visais šiais atvejais paskatos palikti savo šalį dėl gamtinės nelaimės, nėra lemiantys faktoriai suteikti pabėgėlio statusą. Trečiojoje dalyje yra analizuojamas ryšys tarp socialinių, ekonomių teisių, non-refoulement principo ir gamtinių nelaimių. Analizė atskleidė, kad rimti socialinių, ekonominių teisių... [toliau žr. visą tekstą]

Six out of every ten children in South Africa are living in poverty. This situation is aggravated by the AlDS pandemic. The pandemic is also the cause of a generation of AlDS orphans and as a consequence a lot of pressure is put on society's resources. Although the fundamental rights of children are entrenched in the Constitution of the Republic of South Africa, 1996, the current legal and administrative framework is not being implemented effectively in order to realise these rights. The Constitutional Court has adjudicated upon several matters regarding the realisation of socio-economic rights, thereby confirming that socio-economic rights are indeed justiciable. This research is specifically concerned with the realisation of children's right to have access to health care as entrenched in sections 27 and 28(l)(c) of the Constitution. Read with section 7(2) of the Constitution, this right places negative as well as positive obligations on the state to respect, protect, promote and fulfil children's right to have access to health care. Children's right to health care are however dependent on the internal limitations contained in section 27(2) of the Constitution which states that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. Having ratified the UN Convention on the Rights of the Child (CRC), the state is further bound to recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. Parties to the CRC shall also strive to ensure that no child is deprived of his or her right of access to such health care services. Good health is dependent on more than a mere right to have access to health care. In order to ensure the highest attainable standard of health for all children, it is necessary that the available services are affordable and accessible on an equitable basis. Access to health care should be seen as part of a more comprehensive social protection package to ensure a minimum standard of living, consistent with the value of human dignity in our Constitution. In order to achieve this, the fragmented health care system which existed before 1994 and which was mainly a result of the previous dispensation of oppression and racial discrimination, had to be transformed in order to reach the ideal of improving the quality of life of all citizens as contained in the preamble of the Constitution. Ten years after the inception of the new constitutional dispensation, it can be said that the government is making progress with the transformation of the health system and making it accessible to all people, including children. After extensive research on the legislative and other measures that the government has implemented in order to realise children's right to access to health care, the following conclusions has been reached: State policies regarding health care are taking account of the needs of children as a vulnerable group of society and it can be said to be reasonable in the formulation thereof. Regarding the implementation of these policies, much remains to be done to ensure that the benefits thereof reach the children, especially more vulnerable groups such as street children and child-headed households - a common occurrence with the high prevalence of HIVIAIDS in South Africa. The enactment of the National Health Act 61 of 2003 is still awaited although it has already been signed. This legislation provides a national framework of norms and standards regarding the health care system and it is mainly based on the rights of patients. A new Children's Bill [B32 - 20031 has been introduced to parliament. The bill deals extensively with the rights of children as contained in the Constitution and also aims to give effect to governments' obligations in terms of the CRC. The enactment of the bill should be given priority, although measures should be implemented to ensure that health care services are also accessible to children who are not assisted by adults such as child-headed households. The allocation of public funds should be considered in order to provide better social assistance to families in dire need but mechanisms to ensure that children benefit from social grants must be implemented. Many of these grants are being abused by parents which means that although the grants are available, the money is not always spent to better the plight of the children. This is especially important in the light of the fact that the primary obligation to take care of children vests in the parents. The courts and especially the Constitutional Court, has taken their role in realising socio-economic rights seriously and very important guidelines has been formulated regarding the reasonableness of legislative and other measures in this regard. After the Khosa-case it should be said that although the courts are allowed to overstep the boundaries of separation of powers, they should not rewrite these boundaries by not taking appropriate account of the availability of financial resources. This also applies to the executive and legislature which should act more effectively to implement the court's decisions. The Human Rights Commission is playing an important role with regard to the realisation of socio-economic rights by monitoring and evaluating the implementation of government programmes and legislation. The Commission also provides valuable guidelines with regard to the realisation of socio-economic rights in the form of annual reports submitted to parliament. It is submitted that the Commission should however consider to define minimum core obligations of socio-economic rights since the Commission is better equipped to do this than the courts are. / Thesis (LL.M. (Public Law))--North-West University, Potchefstroom Campus, 2005.

Magister Philosophiae - MPhil

In terms of Section 29 (1) of the Constitution, everyone has the right to basic education. This right is not subject to ‘reasonable legislative and other measures, available resources and progressive realisation.’ The right to basic, compulsory education is widely regarded as a fundamental human right. For example, this right is included in a number of international human rights treaties such as the ‘Universal Declaration of Human Rights’, the ‘International Covenant on Economic, Social and Cultural Rights,’ the ‘African Charter on the Rights and Welfare of the Child’, the ‘Convention on the Rights of the Child’, the ‘Dakar Framework for Action: Education for All’, and ‘UNESCO Convention against Discrimination in Education’. The South African Constitution, however, does not clarify the content and scope of the right to basic education. Consequently, the Constitution has given the state wide discretion to determine the scope, nature and content of this basic right. Apartheid left the South African education system fragmented and unequal. The South African educational system has gone through numerous curricula and institutional changes. The changes in the curriculum were part of the transformation process of the South African education system. In addition, the state has allocated substantial public funds towards basic education. However, the investment in basic education does not commensurate with the quality of teaching and learning in poor and marginalised schools. For example, several rural and farm schools in the Eastern Cape lacked toilet facilities; textbooks and other education support material; furniture; and other essential necessities. Education loses its transformative power when poor and marginalised schools continue to lack these essential services. Consequently, inequality is perpetuated and the poor and marginalised are unable to compete meaningfully in the social, economic and political life of South Africa. The mini dissertation concludes by recommending that the Department of Basic Education should ensure that all schools, especially those in rural communities and farms, have access to textbooks, qualified teachers, clean water and toilet facilities and other essential necessities needed for the delivery of quality basic education.

"Although there have been some benefits accruing form privatisation in Africa generally and South Africa in particular, the exercise has impacted negatively on socio-economic rights and service delivery. With privatisation, the role of the state in the provision of these services has been taken over by private service providers over which states have no direct control or have failed to exercise control. Although it ought to be acknowledged that there has been an increase in the production levels of some goods and utility services, for instance water and electricity, it is unfortunate that with several people increasingly losing their jobs as public enterprises are privatised, they cannot afford to pay the increased costs of these services. This has been the case with water privatisation in South Africa where the 'full cost recovery' model and the introduction of 'pre-paid metres' have led to disconnections of water to those who are unable to pay, thus reducing access. As a result, since 1994, over 10 million South Africans have had their water disconnected. The main problem has been 'profit motives and cost recovery' on the one hand versus 'poverty, unemployment and inability to pay' on the other. This inevitably impacts negatively on the right of access to sufficient water and also affects the enjoyment of other socio-economic rights and services like food, housing, health care, inter alia. ... This study is divided into five chapters. Chapter one will set out the content of the research, identify the problem and outline the methodology. Chapter two gives a general coverage of privatisation and its inter-relationship with socio-economic rights and services. Chapter three covers the international and regional legal regime governing the protection, respect, promotion and fulfilment of socio-economic rights. It also covers the obligations of both the state and non-state actors. Chapter four will analyse the water privatisation exercise in South Africa, and how it has impacted on the enjoyment of the right of access to water. Based on the findings in chapter four, chapter five will evaluate the privatisation process and determine whether it complies with international and constitutional human rights obligations, followed by recommendations and a conclusion." -- Introduction. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2004. / Prepared under the supervision of Prof. Pierre de Vos 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

"The prevailing realities of 'severely depressed' African economies make it difficult for children to enjoy the socio-economic rights guaranteed under the Children's Charter. This study takes the view that the responsibility of parents and the obligations of the state towards children's socio-economic rights must be mutually supportive. It therefore proposes the need for balancing parental responsibility and state obligations in the struggle to ensure that the socio-economic rights of children across the continent are met, albeit, under difficult economic circumstances. ... The study is divided into five chapters. Chapter 1 has highlighted the structure of the entire discourse. Chapter 2 deals with the general perspectives of the socio-economic rights of children within the broad context of international human rights law. An overview of the normative and procedural framework of the Convention on the Rights of the Child is given. The chapter also examines the normative and procedural framework available for the protection of the child at the African regional level, the starting point of which is the African Charter on Human and Peoples' Rights and eventually narrowed down to the African Charter on the Rights and Welfare of the Child. Chapter 3 addresses the concept of parental responsibility. In particular, Africa's notion of parental responsibility is critically analyzed as a factor that makes a crucial difference to the interpretations of the underlying assumptions in the Children's Charter that the socio-economic rights of children could be met through the African communal and extended family network. Chapter 4 deals with states obligations in respect of the socio-economic rights of children. The South African jurisprudence on the rights of the child is also discussed in this chapter. The chapter also highlights the interplay between parental responsibility and state obligations in fulfilling the socio-economic rights of children. Chapter 5 consists of conclusions of the essay." -- Chapter 1. / Thesis (LLM (Human Rights and Democratisation in Africa))--University of Pretoria, 2003. / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

The main objective of the study is to show how the use of tax incentives as means of attracting Foreign Direct Investment (FDI) is threatening the realisation of socio-economic rights in Africa. Particular attention is given on how the granting of generous tax incentives can affect the proper and adequate provision of public services and infrastructures by highly reducing government revenue. The research does not intend to analyse the impact of loss of revenue through tax incentives on each and every socio-economic right. Rather the focus is on its general impact on obligations of African states to respect, protect and fulfill socio-economic rights as derived from the major international, regional and national human rights instruments / Thesis (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 Mr Pramod Bissessur, Faculty of Law and Management, University of Mauritius / http://www.chr.up.ac.za/ / Centre for Human Rights / LLM

This research is founded upon three fundamental premises. The first is that good governance is central to human development. The second premise is that the realisation of socio-economic rights is a necessary condition for the attainment of human development. The third premise is that pro-poor growth policies and frameworks are veritable tools through which human development can be delivered and socio-economic rights realised. The research Focuses on the view that human development should be the end of every growth policy regime and good governance the means to such end. Socio-economic rights on the other hand should serve as indicators to the formulation, implementation and the measurement of such policies / Thesis (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 Dr Lilian Chenwi of the Community Law Centre, Faculty of Law, University of the Western Cape / http://www.chr.up.ac.za/ / Centre for Human Rights / LLM

Thesis (LLD (Public Law))—University of Stellenbosch, 2009. / ENGLISH SUMMARY: The point of departure of this dissertation is that transformation in South Africa depends on transformative politics – extra-institutional, substantive, oppositional, transformation-oriented politics. One challenge South Africa’s constitution therefore poses to courts is to take account of the impact of adjudication on transformative politics. The purpose of this dissertation is to investigate the relationship between adjudication and transformative politics within a specific context – adjudication of socio-economic rights cases. This relationship is commonly described in a positive light – either that adjudication of socio-economic rights cases promotes transformative politics by giving impoverished people access to the basic resources required for political participation; or that adjudication of such cases is in itself a space for transformative politics. Although there is much truth in both these descriptions, both under-estimate the extent to which adjudication also limits transformative politics. This dissertation focuses on the extent to which adjudication limits transformative politics – it comprises an analysis of socio-economic rights cases with the aim of showing how adjudication of these cases, despite positive results, also limited transformative politics. The theoretical aspects of this problem are outlined in the first chapter. After a description of the body of case law on which the analysis focuses two chapters follow in which two ways in which adjudication limits transformative politics are investigated. The first traces how courts in socio-economic rights cases participate in discourses about impoverishment that tend to describe the problem as non-political – specifically how courts tend to describe impoverishment as technical rather than political in nature; and how courts implicitly legitimise in their judgments liberal-capitalist views of impoverishment that insist that impoverishment is best addressed through the unregulated market. Then follows a chapter investigating how views of legal interpretation in terms of which legal materials have a certain and determinable meaning that can be mechanically found by courts limit transformative politics by insulating adjudication from critique and emphasising finality in adjudication. Throughout it is shown how courts can mitigate the limiting effects of adjudication, by legitimating the political agency of impoverished people, by using remedies requiring political engagement between opponents and postponing closure in adjudication, and by adopting a different approach to interpretation, that emphasises the pliability and relative indeterminacy of legal materials. Despite this, the conclusion of the dissertation is that courts can never wholly avoid the limiting impact of adjudication on transformative politics, but should rather aim to remain continually aware of it. / AFRIKAANS OPSOMMING: Die uitgangspunt van hierdie proefskrif is dat transformasie in Suid-Afrika afhang van transformatiewe politiek – buite-institusionele, substantiewe, opposisionele, transformasie-gerigte politiek. Een eis wat Suid-Afrika se grondwet daarom aan howe stel, is om ag te slaan op die impak van beregting op transformatiewe politiek. Die doel van hierdie proefskrif is om die verhouding tussen beregting en transformatiewe politiek binne ‘n spesifieke konteks – beregting van sake oor sosio-ekonomiese regte – te ondersoek. Meeste beskouinge van hierdie verhouding beskryf dit in ‘n positiewe lig - óf dat die beregting van sake oor sosio-ekonomiese regte transformatiewe politiek bevorder deur vir verarmde mense toegang tot basiese lewensmiddele te bewerkstellig sodat hulle aan politieke optrede kan deelneem; óf dat beregting van sulke sake opsigself ‘n spasie is vir transformatiewe politiek. Hoewel daar waarheid steek in beide beskrywings, onderskat hulle die mate waartoe beregting ook transformatiewe politiek kan beperk. Hierdie proefskrif fokus op hoe beregting transformatiewe politiek beperk - dit behels ‘n analise van sake oor sosio-ekonomiese regte met die doel om te wys hoe beregting van hierdie sake, ten spyte van kennelik positiewe gevolge ook transformatiewe politiek beperk het. Die teoretiese vergestalting van hierdie probleem word in die eerste hoofstuk beskou. Na ‘n beskrywing van die liggaam van regspraak waarop die analise fokus volg twee hoofstukke waarin twee maniere waarop beregting transformatiewe politiek beperk ondersoek word. Die eerste beskou hoe howe in sake oor sosio-ekonomiese regte deelneem aan diskoerse oor verarming wat neig om hierdie probleem as non-polities te beskryf - spesifiek hoe howe neig om hierdie problem as tegnies eerder as polities van aard te beskryf; en hoe howe liberaal-kapitalistiese sieninge van verarming, ingevolge waarvan verarming deur die ongereguleerde mark aangespreek behoort te word, implisiet in hul uitsprake legitimeer. Dan volg ‘n hoofstuk wat naspeur hoe sieninge van regsinterpretasie ingevolge waarvan regsmateriaal ‘n sekere en vasstelbare betekenis het wat meganies deur howe gevind word, transformatiewe politieke optrede beperk deur die openheid van beregting vir kritiek te beperk en finaliteit in beregting in die hand te werk. Deurgaans word gewys hoe howe die beperkende effek van beregting kan teëwerk, deur die politike agentskap van verarmde mense te legitimeer, deur remedies te gebruik wat politieke onderhandeling tussen opponente bewerkstellig en finale oplossings uitstel, en deur ‘n ander benadering tot interpretasie, wat die buigsaamheid en relatiewe onbepaalbaarheid van regsmateriaal erken, te omarm. Tog is die gevolgtrekking van die proefskrif dat howe nooit die beperkende effek van beregting op transformatiewe politiek geheel kan vermy nie, maar eerder deurgaans daarop bedag moet wees.