Section 26 of the Constitution of South Africa Act 108 of 1996 provides that housing is a basic human right and that the government must take reasonable legislative and other measures to achieve the realisation of this right. A number of measures were taken to try to resolve this socio-economic issue. A number of housing institutions were established , various pieces of legislation were passed and housing subsidies were provided. However, housing backlogs remain a challenge. In March 1994 the housing backlog was estimated between 1,3 and 1,8 million units. When more than a million houses were provided by 2001 , the housing backlog had increased to between 2 and 3 million houses. To date subsidies in excess of R29 billion have been spent on housing provision. A study by the Department of Housing concluded that, at the current rate of increase of housing funding vis-a-vis the growing backlog and rapid urbanisation, the household backlog will not be changed in ten years' time. The United States of America (USA) had a similar low cost housing problem, but securitisation alleviated it with the participation of government agencies Fannie Mae, Ginnie Mae and Freddie Mac. In South Africa, the NHFC tried to emulate the USA model by establishing Gateway Home Loans (Pty) Limited (Gateway) in 1999. Gateway, however, was not a success. This research investigates whether securitisation can be applied in South Africa to alleviate the low cost housing issue. The study finds that there is a credit availability gap for the low income sector earning less than R8 000 per month because of the perceived risk of default and unwillingness by banks to lend to this sector. The increase in housing backlog that continues unabated, inadequate housing finance system to low income earners, the lessons learnt from the failure of Gateway, the success factors of the USA securitisation model and the sound and sophisticated South African financial system are the rationale for applying securitisation. A proposal of how to effectively apply securitisation to low cost housing in South Africa is provided with recommendations to revive the primary market.

The interim Constitution and the 1996 South African Constitution are products of a compromise between various political parties, mainly those that advocated for a unitary system, for example the African National Congress (ANC) and the Pan Africanist Congress (PAC) were the leading proponents , anti the parties that advocated for a federal constitution, the significant ones being the Inkatha Freedom Party (lFP), the National Party (NP) and the Democratic Party (DP). The interim Constitution and the 1996 South African Constitution contain both unitary and substantial federal characteristics. The study deals with the origins of the federal idea and how the concept federalism is understood and applied internationally, and draws out some key characteristics that are common in federal constitutions so as to measure the interim Constitution and the 1996 South African Constitution against such common characteristics. The conclusion deals with recommendations of how the substantial federal characteristics could be effectively managed through intergovernmental relations / Political Science / M.A. (African Politics)

The interim Constitution and the 1996 South African Constitution are products of a compromise between various political parties, mainly those that advocated for a unitary system, for example the African National Congress (ANC) and the Pan Africanist Congress (PAC) were the leading proponents , anti the parties that advocated for a federal constitution, the significant ones being the Inkatha Freedom Party (lFP), the National Party (NP) and the Democratic Party (DP). The interim Constitution and the 1996 South African Constitution contain both unitary and substantial federal characteristics. The study deals with the origins of the federal idea and how the concept federalism is understood and applied internationally, and draws out some key characteristics that are common in federal constitutions so as to measure the interim Constitution and the 1996 South African Constitution against such common characteristics. The conclusion deals with recommendations of how the substantial federal characteristics could be effectively managed through intergovernmental relations / Political Science / M.A. (African Politics)

Few legal developments in South Africa and elsewhere in the world in recent times have excited such controversy as the legal recognition of social and economic rights. South Africa has created a special place for itself in world affairs for being one of the countries that recognise socio-economic rights in a justiciable Bill of Rights. Partly this is in response to the appalling levels of poverty prevalent in the country which could potentially destabilise the new democracy. Improvement of the quality of life of every citizen is a crucial step in consolidating the constitutional democracy. The question that will face any court in giving effect to socio-economic rights is: how are these rights to be judicially enforced in a given context? The crux of this thesis lies in the resolution of this question. Firstly this thesis traces the philosophical foundations to the legal recognition of socio-economic rights. It is stated that the recognition of these rights in a justiciable bill of rights requires a conceptually sound understanding of the nature of obligations that these rights place on the state. It is emphasised that it is imperative that access to justice be facilitated to poor and vulnerable members of society for the realisation of the constitutional goal of addressing inequality. Particular concern and priority should in this context be given to women, children and the disabled. The study explores various judicial remedies and makes suggestions on new and innovative constitutional mechanisms for judicial enforcement of these rights. It is concluded that there is an important role to be played by civil society in giving meaningful effect to socio-economic rights.

This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores. / National Research Foundation

Contemporary South Africa prides itself on having a Bill of Rights. For 84 years (1910 to 1994) public administration regulated the general welfare and lives of inhabitants in the finest detail, while being subject to almost only the whims and political objectives of the governing authority. On 27 April 1994 the 1993 Constitution introduced a constitutional obligation and radical change to the manner in which public administration must be exercised. Today, still an infant in experience relating to a bill of rights, public administration must be exercised with the Bill of Rights as an integral part of this inhabitant / governing authority interaction. The primary aim of this study is to attempt to describe the manner in which public administration was exercised, firstly, during constitutional dispensations prior to 1994 and, secondly, since public administration became subject to constitutionally entrenched fundamental rights. The empirical investigation is aimed at exploring and analysing the extent to which public administration has realised the constitutional obligation in practice. The results of the empirical investigation highlighted, primarily, that the majority of the officials that participated in the survey do not know of the Bill of Rights, and that half of those who do know of the Bill have little knowledge of its provisions. More than half of the respondents lack awareness of section 195 of the 1996 Constitution, which states that public administration must be governed by democratic principles enshrined in the Constitution. Barely one tenth of respondents were informed of the significance of the Bill and its role regarding public administration. The majority of respondents have not of their own accord studied the Bill and the Bill does not have the desired effect on the manner in which public administration is exercised. Two thirds of respondents have mixed perceptions as to whether to serve the interests of inhabitants above the political objectives of the governing authority and less than a quarter of respondents give recognition to the Bill when rendering public services. It seems as if South African public administration has a long way to go in adhering to its constitutional obligation in practice. / Public Administration / D. Litt et Phil.(Public Administration)

The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) stipulates that every person has the right of access to information held by government. To give effect to this right, legislation in the form of the Promotion of Access to Information Act, 2000 (Act 2 of 2000) was promulgated. This study explores the access to information regime that was established by die aforementioned legislation with specific reference to similar regimes in the United States of America, Australia, New Zealand and Canada. Attention is also devoted to the prerequisites and potential obstacles associated with the implementation of the Promotion of Access to Information Act, 2000. Based on the practices in other states, the conclusion was reached that the nature of information that may be requested in the South African context should be expanded, that cabinet records should only be excluded to the extent that disclosure thereof would be harmful, that frequently requested records should be made automatically available and that decision-making guidelines of government institutions should be published. As far as procedural requirements are concerned, it is proposed that information officers should acknowledge receipt of requests and that, where necessary, records should be translated to ensure that they are useful to a requester. It is further proposed that the wording of the ground of refusal regarding policy formulation and decision-making in government institutions be amended to take account of the consequences of disclosure. It is imperative that appeal and review mechanisms be accessible to members of the public and it is therefore proposed that an information commissioner be instituted to settle disputes in information related matters. Lastly it is proposed that sanctions be imposed against officials who deliberately undermine the public's right of access to information and that separate units be established in government institutions to deal exclusively with requests for access to information. / Public Administration / D. Litt. et Phil. (Public Administration)

Contemporary South Africa prides itself on having a Bill of Rights. For 84 years (1910 to 1994) public administration regulated the general welfare and lives of inhabitants in the finest detail, while being subject to almost only the whims and political objectives of the governing authority. On 27 April 1994 the 1993 Constitution introduced a constitutional obligation and radical change to the manner in which public administration must be exercised. Today, still an infant in experience relating to a bill of rights, public administration must be exercised with the Bill of Rights as an integral part of this inhabitant / governing authority interaction. The primary aim of this study is to attempt to describe the manner in which public administration was exercised, firstly, during constitutional dispensations prior to 1994 and, secondly, since public administration became subject to constitutionally entrenched fundamental rights. The empirical investigation is aimed at exploring and analysing the extent to which public administration has realised the constitutional obligation in practice. The results of the empirical investigation highlighted, primarily, that the majority of the officials that participated in the survey do not know of the Bill of Rights, and that half of those who do know of the Bill have little knowledge of its provisions. More than half of the respondents lack awareness of section 195 of the 1996 Constitution, which states that public administration must be governed by democratic principles enshrined in the Constitution. Barely one tenth of respondents were informed of the significance of the Bill and its role regarding public administration. The majority of respondents have not of their own accord studied the Bill and the Bill does not have the desired effect on the manner in which public administration is exercised. Two thirds of respondents have mixed perceptions as to whether to serve the interests of inhabitants above the political objectives of the governing authority and less than a quarter of respondents give recognition to the Bill when rendering public services. It seems as if South African public administration has a long way to go in adhering to its constitutional obligation in practice. / Public Administration and Management / D. Litt et Phil.(Public Administration)

The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) stipulates that every person has the right of access to information held by government. To give effect to this right, legislation in the form of the Promotion of Access to Information Act, 2000 (Act 2 of 2000) was promulgated. This study explores the access to information regime that was established by die aforementioned legislation with specific reference to similar regimes in the United States of America, Australia, New Zealand and Canada. Attention is also devoted to the prerequisites and potential obstacles associated with the implementation of the Promotion of Access to Information Act, 2000. Based on the practices in other states, the conclusion was reached that the nature of information that may be requested in the South African context should be expanded, that cabinet records should only be excluded to the extent that disclosure thereof would be harmful, that frequently requested records should be made automatically available and that decision-making guidelines of government institutions should be published. As far as procedural requirements are concerned, it is proposed that information officers should acknowledge receipt of requests and that, where necessary, records should be translated to ensure that they are useful to a requester. It is further proposed that the wording of the ground of refusal regarding policy formulation and decision-making in government institutions be amended to take account of the consequences of disclosure. It is imperative that appeal and review mechanisms be accessible to members of the public and it is therefore proposed that an information commissioner be instituted to settle disputes in information related matters. Lastly it is proposed that sanctions be imposed against officials who deliberately undermine the public's right of access to information and that separate units be established in government institutions to deal exclusively with requests for access to information. / Public Administration and Management / D. Litt. et Phil. (Public Administration)

This Doctoral thesis entitled the Constitutionality of Employers' Investigative Procedures and Disciplinary Hearing Processes with Specific Reference to Dismissal of Employees on the Basis of Criminal Misconducts in South Africa, focusses on individual labour law principles of fair labour practices entrenched in section 23(1) of the Constitution. The thesis deals with fairness in situation where an employee who is suspected of committing a criminal act is investigated and subsequently goes through a disciplinary hearing for dismissal. It determines the extent to which an employee’s criminal guilt is decided before dismissal. As such, the thesis is based upon South African judicial interpretation of the right to fair dismissal. In the process the thesis examines the application of principles informing the employer’s duty to provide fair reason concerning the dismissal of employees criminal suspects. In examining if employers observe constitutional transformative objective when conducting criminal investigations and disciplinary hearings - the thesis reviews the extent to which the employer respects constitutional rationales of equity based on the principles of natural justice. These natural justice principles are the basis upon which section 23(1) fairness is founded. Section 23 (1) is implemented through the LRA provisions. The thesis then concludes that, only one principle of natural justice - audi alteram partem is respected within employer flexibility-based fairness while the other principle - nemo judex in propria sua causa is ignored. It is this denial that causes serious procedural challenges in the quest for equity intended in section 23(1) fair labour practices. It is upon these foundational equity concerns that this thesis opposes the flexibility in employer’s criminal investigations and disciplinary hearing processes entrenched in item 4 (1) of Schedule 8 of the LRA fair procedure for dismissal of employees suspected of criminal acts. The thesis interlinks labour law and criminal law to advocate for the missing constitutionally justiciable fairness for employees who have committed criminal misconducts. It argues that the current judicial interpretation of labour law fairness is based upon the principle of flexibility underlying dismissals, asserting that fairness based on flexibility breeds informal procedural processes which exempt employers from observing crucial constitutional fairness principles expressed through proportionality-based prescripts. The thesis concludes that the practice of including the right against self-incrimination in employment law, done in other common law countries be introduced into the South African labour law through section 39 of the Constitution so that the identified procedural challenges are regulated. / Mercantile Law / LL.D.