This study examines spousal sexual assault laws in Nigeria and Canada through the lens of substantive equality. The aim is to show that only when a substantive-equality approach is used for legislation and adjudication of spousal sexual assault can victims fairly seek and realize justice. This is because substantive equality considers broader socio-economic and cultural contexts that support this crime, including exposing stereotypes that underpin its legislation and adjudication. The study shows that in Nigeria and Canada spousal sexual assault is endemic and that women are disproportionately represented as victims and men as perpetrators. Failures to apply the principles of substantive equality in adjudicating spousal sexual assault lead to the flaws in evidentiary procedures involving this crime. The study concludes that it is important to revise criminal laws and evidentiary procedures in Nigeria and Canada using substantive equality principles. / October 2016

The hearing-impaired learner as part of a historically segregated and disadvantaged group experiences discrimination within Nigeria’s general education system and the socio-political environment. In this study, the focus is on how hearing-impaired learners can access inclusive education, using normative ideas of equality that could inform the understanding and interpretation of the non-discriminatory clause in the Nigerian constitution. Emphasis is on advancing thoughts that are normatively open to the inclusive equality needs of the hearing-impaired in accessing primary education, in order to inspire and be capable of altering existing discriminatory conditions prevalent within Nigeria’s general education system. The study uses a range of analytical skills to probe the inclusiveness of existing arrangements regarding inclusive equality in education for hearing-impaired learners in Nigeria. More broadly, the study makes use of qualitative analysis. However, the study also employs a reasonable part of fieldwork which necessitated the use of quantitative data analysis in order to determine the number of semi-structured questionnaires to be distributed to schools. More generally, the study utilises the social model approach to disability and neo-natural law perspectives as qualitative interpretive tools for appraising understandings of inclusivity in education for hearing-impaired learners. From ideas inspired from the social model and neo-natural law, the study adopts the prescriptive and directive approach as a directing element in the evaluation of the responsiveness of law, policy and practice towards securing inclusive equality in education for hearing-impaired learners. Additionally, the study employs some aspects of comparative analysis. The purpose was not so much to compare, but to create awareness regarding the equality and non-discrimination agenda in other jurisdictions. Against this backdrop, the Canadian and South African jurisdictions were used. The study contemplates that positive lessons could be learnt from these jurisdictions and mistakes can be avoided. Throughout, the study highlights the hidden nature of law, policy and practice in relation to hearing-impaired learners, which consequently demand the application of practical reasonableness and ideas of substantive justice in the making and implementation of rules and policy. The study situates inclusivity as a flexible approach that should present each learner with an opportunity to access and make choices regarding placement options as a matter of self determination. In the final analysis, the study argues for the establishment of a non-discriminatory educational system, where hearing-impaired learners are taught in a language that is accessible and comprehensible and with which the learner is familiar right from home at the early age of schooling. The study considers the utilisation of accessible and comprehensible language an operative part of achieving substantive equality in education for hearing-impaired learners. / Thesis (LLD)--University of Pretoria, 2017. / Centre for Human Rights / LLD / Unrestricted

CoordenaÃÃo de AperfeiÃoamento de Pessoal de NÃvel Superior / Esta Tese de Doutorado, fundamentada no pensamento do filÃsofo marxista IstvÃn MeszÃros, defende que a construÃÃo do âmodo de controle reprodutivo socialâ, qualificado de socialista, nÃo se separa da negaÃÃo ontolÃgica do modo de controle metabÃlico social do capital. Para tanto, faz-se necessÃrio, por um lado, redefinir as condiÃÃes de vida impostas pelo conjunto de âmediaÃÃes antagÃnicas de segunda ordem do capitalâ, como a famÃlia nuclear, a produÃÃo alienada, o dinheiro, os objetivos fetichistas da produÃÃo, o trabalho assalariado, o Estado e o mercado mundial, e, por outro, reivindicar a transformaÃÃo econÃmica e social radical que deve ser realizada, segundo a nossa interpretaÃÃo do autor, atravÃs de mediaÃÃes, tais como: 1) a igualdade substantiva como princÃpio primus inter pares a gerir as relaÃÃes sociais, haja vista que a superaÃÃo definitiva do sistema do capital depende da adoÃÃo de uma estrutura de reproduÃÃo social fundamentalmente diferente, na qual a âuniversalizaÃÃo do trabalhoâ e os frutos positivos da atividade produtiva devem ser igualmente repartidos; 2) a polÃtica radical que, em expresso e claro combate à polÃtica burguesa, exercida por uns em nome de variadas formas de dominaÃÃo sobre os outros, deve restituir à base social o poder de controle e a tomada de decisÃo polÃtica, dos quais a classe trabalhadora foi mantida sempre alheia; e 3) a educaÃÃo, que, embora se encontre refÃm do poder mercadolÃgico que a classifica como um campo inesgotÃvel de rendimentos para o capital, se adequadamente engajada no projeto socialista de sociedade, à uma prÃtica social integrante da teia de mediaÃÃes que rejeita o domÃnio do capital e à capaz de dar amparo à formaÃÃo/autoformaÃÃo crÃtica dos sujeitos em prol da emancipaÃÃo humano-social. Nessa perspectiva, percebe-se, portanto, que nÃo serà a mera substituiÃÃo do poder polÃtico, de uma classe por outra, ou a âexpropriaÃÃo dos expropriadoresâ por decreto, que irà alterar a base material das mediaÃÃes antagÃnicas de segunda ordem do sistema do capital. A crenÃa na onipotÃncia do Estado como agente da promoÃÃo social, como promoveram, por exemplo, a experiÃncia do Welfare State e a do sistema soviÃtico, desconsidera o papel decisivo exercido por ele na preservaÃÃo das estruturas alienadas e desumanas que envolvem a trÃplice relaÃÃo capital, trabalho e Estado, como, tambÃm, relativiza a forÃa contundente dos imperativos da expansÃo e acumulaÃÃo do capital sobre o desejo polÃtico de controle do sistema. Metodologicamente guiados pelo materialismo histÃrico-dialÃtico, à possÃvel concluir que o desfecho vital da superaÃÃo da ordem do capital requer transformaÃÃes histÃricas e estruturais na relaÃÃo de subordinaÃÃo do trabalho ao capital, de modo a instituir a verdadeira igualdade, a participaÃÃo associada dos produtores e a educaÃÃo contÃnua do sujeito emancipatÃrio.

Appréhendée aussi comme un idéal, l’égalité se décline juridiquement à travers le principe de non- discrimination. Étudié par le prisme du droit européen, il se révèle être un exemple significatif des difficultés mais aussi des potentialités des relations entre les deux principaux espaces juridiques européens : le Conseil de l’Europe et l’Union européenne. La Cour européenne des droits de l’homme, le Comité européen des droits sociaux ainsi que la Cour de justice de l’Union européenne affichent une apparente homogénéité derrière laquelle se cachent des réalités différentes qui fragilisent le principe de non-discrimination et affaiblissent son rôle pourtant central dans le renforcement du droit européen des droits de l’homme. Ce principe doit ainsi être redéfini afin de retrouver une pleine efficacité en tenant compte du fait que son interprétation ne peut différer d’un espace européen à l’autre. Ce défi majeur conduit à analyser en quoi consiste précisément, pour l’Europe, le caractère axiologique du principe de non-discrimination. / Also perceived as an ideal, equality finds its legal incarnation in the non-discrimination principle. When examined through the European prism, it reveals its full meaning in terms of difficulties, but also of potential, for the relations between the two main European legal systems : the Council of Europe and the European Union. The European Court of Human Rights, the European Committee of Social Rights as well as the Court of Justice of the European Union, behind the apparent similarity displayed, harbour different realities, thus underming the non-discrimination principle and weakening its key role in the defence of European human rights law. In order to restore its full effectivness, this principle should be redefined, bearing in mind that its interpretation cannot change from one European legal system to another. This major challenge leads to the analysis of the exact implications, for Europe, of the cornerstone function played by the non-discrimination principle.

Law and development mainstream conceptions of labour market policies, while still marked by long-dominant views of contract law as economically superior to any labour regulation, have recently incorporated certain specific labour (human) rights. Core labour rights are thus accepted by global policy-makers, on the basis of their radical distinction from non-core labour standards and their rationalization according to certain foundational principles. This thesis criticizes the prevailing dichotomies between core labour rights and non-core standards, on the one hand, and contract law and regulation, on the other, bringing to bear the post-legal realist idea of legal indeterminacy. It argues that the organizing legal concepts that justify these dichotomies contain gaps and ambiguities that often lead to contradictory and indeterminate outcomes. It thus suggests that the core/non-core labour standards and contract/regulation distinctions are unproductive and should be rejected if a better conception of labour governance is to come to fruition.

Law and development mainstream conceptions of labour market policies, while still marked by long-dominant views of contract law as economically superior to any labour regulation, have recently incorporated certain specific labour (human) rights. Core labour rights are thus accepted by global policy-makers, on the basis of their radical distinction from non-core labour standards and their rationalization according to certain foundational principles. This thesis criticizes the prevailing dichotomies between core labour rights and non-core standards, on the one hand, and contract law and regulation, on the other, bringing to bear the post-legal realist idea of legal indeterminacy. It argues that the organizing legal concepts that justify these dichotomies contain gaps and ambiguities that often lead to contradictory and indeterminate outcomes. It thus suggests that the core/non-core labour standards and contract/regulation distinctions are unproductive and should be rejected if a better conception of labour governance is to come to fruition.

Because women are predominantly responsible for childcare, men are the primary income earners. Having acquired the marital assets, on divorce the husband would retain them in a marriage out of community of property. The wife would be left deskilled, financially dependent, with little likelihood of receiving spousal maintenance and with no marital assets. In 1984 the Matrimonial Property Act and in 1988 the Matrimonial Property Law Amendment Act introduced a judicial discretion to equitably redistribute marital assets in certain marriages out of community. This dissertation argues that the bases for the limitation of the judicial discretion to women married before a certain date are unsound and that the limitation arguably violates the equality clause of the Constitution. / Law / LL.M.

The objective of this thesis is to assess the impact and influence of South Africa's Constitutional Court in the first two years of our democracy. To achieve this objective, some of the definitive and controversial cases already decided by the Court have been selected and analysed in an attempt to glean some jurisprudential perspectives of the Court. It focuses on the work of the Court over the past two years. It deals with the evolution of South Africa into a democracy, and analyzes the South African legal system prior to the beginning of the process of transformation. It briefly surveys the evolution of our constitutional system, dating back from the pre-1910 colonial period and provides a broad outline of the legal system in the post-April 1994 period of transformation. It analyzes the Court from the point of view of, inter alia, its composition, jurisdiction and powers. The Court is also contrasted with courts in other jurisdictions which exercise full judicial review. The Court's emerging jurisprudence is examined. A review is made, inter alia, of the Court's understanding of, and approach to, the questions of the values underpinning the post-apartheid society and its constitutional system, and constitutional interpretation. The right against self-incrimination and South African company law and the two relevant Constitutional Court cases are discussed. The collection of evidence by the State and the constitutionality of provisions relating to search and seizure and the taking of fingerprints are looked into. The Court's approach to statutory presumptions and criminal prosecutions; some aspects of our appeals procedures; an accused's right to be assisted by a lawyer at state expense; the question of a fair trial and access to information; capital punishment; corporal punishment; committal to prison for debt; and the certification of constitutions is analyzed. Two of the cases in which the provinces clashed with the national government on the distribution of posers between provinces and the national government are discussed. The conclusion is that the Court has, overall, hitherto acquitted itself well in the handling of particularly the controversial quasi-political questions that arose in the cases it has decided. / Constitutional, International & Indigenous Law / L.L. D. (Law)

With the advent of a new constitutional dispensation in South Africa, intimate relationships that were not formally recognised, such as customary marriages, became fully recognised through designated legislation. Domestic partnerships are, however, afforded only limited recognition despite compelling reasons that lead people to domestic partnerships. Domestic partners are also discriminated against based on marital status despite a Constitution that forbids discrimination based on equality, human dignity and marital status. The object of this study is to investigate whether there are sufficient grounds to afford domestic partnerships full recognition similar to that granted to civil marriage. This study includes arguments in favour and against the recognition of domestic partnerships and a discussion of the reasons that lead people into domestic partnerships. There will also be an analysis of the draft Domestic Partnership Bill 36 of 2008 to determine the suitability of the draft Bill to regulate domestic partnerships. This investigation is conducted with reference to relevant draft Bills, legislation, and case law. / Private Law / LLM

This study demonstrates the negative effect of stereotypes in the progression of women in the legal profession in South Africa and the laws, policies and measures that reinforce gender and sex stereotypes are discriminatory on the basis of gender and sex. This notwithstanding, it considers whether gender equality can be achieved where the measures adopted for gender transformation are premised on gender or sex stereotypes. The study analyses the Cape Bar Maternity Policy in concluding that this approach is justifiable and necessary to achieve substantive gender equality. In addition, this study provides recommendations for the legal profession to achieve substantive gender equality that include: special measures to ensure that the working environment is cognisant of the lived realities of women; requiring practitioners to confront their individual bias by holding them accountable for habits and attitudes that maintain gender inequality; and linking the career advancement of legal professionals to a demonstrable commitment to gender transformation. / Jurisprudence / LL. M. (Human Rights Law)