The right to have access to health care services is enshrined in section 27 of the South African Constitution of 1996 as one of the socio-economic rights protected by this Constitution. In order to observe the entitlements in this human right, the South African government has since 1994, embarked on legislation, policies and programmes to improve access to health care services among vulnerable and disadvantaged groups in South Africa. As a result of the measures put in place by the government, enormous progress has been registered since their enforcement, in respect of access to health care services. However, as evident in some reports such as the 7th Report on Economic and Social Rights by the South African Human Rights Commission and studies conducted by the Studies in Poverty and Inequality Institute (SPII), it is revealed that the measures adopted by the government to improve access to health care services have not effectively translated the entitlements of this right to the population of South Africa. This study is motivated by the disclosure of these concerns, irrespective of the measures put in place by the government to achieve universal access to health care services. The study therefore aims at stressing the importance of upholding the right to have access to health care services in the social transformation process of South Africa. In doing so, it will investigate current health care reforms in South Africa and make recommendations on how to effectively interpret and implement section 27 of the Constitution to achieve equal benefits on access to health care services to everyone in South Africa. / Jurisprudence / LL. M.

The substitution of the dominant Western jurisprudence for South Africa’s indigenous normative values during colonial and apartheid times has resulted in a perverted conception of law that presents Western jurisprudence as synonymous with law. In the era of the constitutional recognition of African law where the application of the democratic principle demands that the newly re-enfranchised African communities deserve to be regulated by their own indigenous values, the resilience of this legal culture has become problematic. To reverse this situation legal and constitutional interpreters must rethink and reshape their contributions to the achievement of the post-apartheid version of African law envisioned by the South African Constitution. The application of African law in a free and liberated environment must reflect its own social, political and legal cosmology in which its institutions operate within their own indigenous frame of reference. A study of the anatomy of African jurisprudence as a means of gaining insight into the indigenous worldview which was characterised by the culture of communal living and the ethos of inclusiveness to counter the prevailing hegemony of autonomous individualism, has become urgent. To achieve this such pillars of African jurisprudence as the philosophy of ubuntu must be exhumed in order for African law’s rehabilitation under the Constitution to be undertaken on the basis of its authentic articulation uncontaminated by colonial and apartheid distortions. The task of developing the African law of the 21st century to the extent required by the Constitution is a challenge of enormous proportions which demands an appreciation of the historical and political environment in which African law lost its primacy as the original legal system of South Africa after Roman-Dutch law was imposed on the South Africa population. The revival of African law becomes more urgent when one considers that when Africans lost control of their legal system they had not abdicated sovereignty voluntarily to the newcomers. The validity of the imposition of Western jurisprudence is vitiated by the colonial use of such imperial acts as colonisation, conquest, and annexation as the basis on which the regime of Roman-Dutch law was imposed on South Africa. Ever since, African law has been subordinated and denigrated through colonial and apartheid policies which relegated it, via the repugnancy clause, to a sub-system of Roman-Dutch law with whose standards it was forced to comply. The repugnancy clause left African law a distorted system no longer recognisable to its own constituency. The advent of the new dispensation introduced a constitutional framework for re-capacitating South Africa’s post-apartheid state institutions to recentre African law as envisioned by the Constitution. This framework has become the basis on which legislative and judicial efforts could rehabilitate the indigenous value system in the application of African law. The courts of the new South Africa have striven to find the synergy between indigenous values and the Bill of Rights in order to forge areas of compatibility between African culture and human rights. An analysis of this phase in the development of African law, as evidenced by the present study, reveals successes and failures on the part of the courts in their efforts to rehabilitate African law in line with both its value system and the Bill of Rights. These findings lead to the conclusion that whilst South Africa’s legislative and judicial institutions have not yet achieved the envisioned version of African law, there is an adequate constitutional framework through which they could still do so. This study, therefore, recommends that the above institutions, especially the courts, should adopt a theory of re-indigenisation that would guide them as they proceed from the indigenous version of African law which is the basis on which to apply the Bill of Rights. The application of such a theory would ensure that the distorted ‘official’ version of African law which was imposed by colonial and apartheid state institutions is progressively discredited and isolated from the body of South African law and gives way to the version inspired by the Constitution. / Constitutional, International and Indigenous Law / LL. D.

This study examines the implementation and enforcement of the right to environment in the Constitution of the Democratic Republic of Congo, and compares it with the situation in South Africa. To date, there is no legislation in the DRC that gives effect to this right, and the gap between the guaranteed right and the reality remains significant. Guidance may be found in the South African model for implementing and enforcing environmental right(s) which is sustained by an array of legislation. While the priorities on the agenda of political leaders in the DRC lack real willingness to deal with this matter, parliament must be pressured to pass legislation that gives effect to the right to environment and to improve the current framework of environmental regulation. It is imperative to create awareness in government and at grassroots level for the protection of the environment as a human right. / Jurisprudence / LL.M.

This study examines the implementation and enforcement of the right to environment in the Constitution of the Democratic Republic of Congo, and compares it with the situation in South Africa. To date, there is no legislation in the DRC that gives effect to this right, and the gap between the guaranteed right and the reality remains significant. Guidance may be found in the South African model for implementing and enforcing environmental right(s) which is sustained by an array of legislation. While the priorities on the agenda of political leaders in the DRC lack real willingness to deal with this matter, parliament must be pressured to pass legislation that gives effect to the right to environment and to improve the current framework of environmental regulation. It is imperative to create awareness in government and at grassroots level for the protection of the environment as a human right. / Jurisprudence / LL.M.

South Africa has not escaped the rising prevalence and severe impact of HIV/AIDS in relation women. From an economic and social vantage point, the HIV/AIDS epidemic hits women the hardest, with underprivileged black women the most susceptible to the virus. The theoretical framework of this research focuses on the intersection between HIV/AIDS, gender inequality and gender violence, and more specifically, on certain cultural practices and customs that contribute towards and exacerbate women’s subordination and inequality, which in turn, increase women’s exposure to become infected with HIV. Relevant to this focus is inevitably an investigation of perceived threats to specific fundamental human rights as a result of some entrenched practices that continue to reinforce women’s subordinate position in society, aggravated by the high incidence of gender violence. / Constitutional, International & Indigenous Law / LL.M.

In this thesis, the common law crime of obstructing or defeating the course of justice as currently applied in South African law, is considered critically. The purpose of the study is to determine whether the ambit of the crime should be extended to target all conduct which undermines the proper administration of justice in South Africa. The interests protected by the crime are investigated, and those important constitutional values which underpin the crime, are identified. These values are: (i) constitutional supremacy (ii) the rule of law (iii) the doctrine of separation of powers, and (iv) the independence of the courts. In a post-constitutional era, the question raised is whether the crime as developed in the common law adequately protects these important democratic values. The historical background and development of the offence are discussed. This is followed by a comparative legal study which considers the existence and ambit of the offence in certain foreign jurisdictions. The foreign legal systems considered are England, Australia, Canada and the United States of America. The study reveals that the crime has been codified in most of these jurisdictions. Codification was driven by the need for legal certainty and compliance with constitutional imperatives. The study concludes that similar reform is necessary in South African criminal law. It is recommended that the common law offence of obstructing or defeating the course of justice be repealed and replaced with a comprehensive statutory offence which criminalises all manifestations of conduct which are intended to defeat or obstruct the proper administration of justice. The proposals are based upon the identified constitutional imperatives which underpin the crime. It is argued that the legislature is the proper institution to initiate reform in this regard. Detailed recommendations are made, which include draft legislation. / Law / LL.D.

The adoption of the 1996 Constitution in recognition of the historic imbalances that South Africa inherited from its past, affirms the commitment to the promotion of human rights including the right to equality. The emphasis on the right to equality in the Constitution and other related laws discussed in the study represents a guarantee for both men and women the right to equal treatment and benefit of the law. The point of departure is based on the premise that views the law as an instrument that has the potential to effect social change. The primary purpose is to determine various factors that are an impediment to the significance of the law for the promotion of the right to gender equality. The objective is to establish with sufficient certainty the substantive conception of the right to gender equality in post-apartheid South Africa. This dissertation examines and provides a brief overview of the development and the intersection of the principles of non-discrimination at the international and regional spheres and their influence in broadening the scope for enforcement of gender equality in South Africa. It provides a literature review and an analysis of the equality jurisprudence of South Africa’s Constitutional Court and its influence to the lowest structures of the judiciary in promoting the right to gender equality. This undertaking is reinforced by the primary purpose in this study of examining various factors that are an impediment to the promotion of the right to gender equality. It discovers that the establishment of a “just society” is difficult where the significance of the law is affected by the lack of legal knowledge and other related factors identified in the study. It establishes that the promotion of the right to gender equality is a gradual process that should not be undertaken overnight but on a continuous basis. It can be drawn from the findings in this study that the law “alone” is limited in its application in addressing socio-legal problems. Despite the limitation, the use of law is not a goal that should be discarded as it lays the framework for the determination of the significance of legal measures for social change.

This study investigates the interaction between freedom and limitation as applied to political expression and hate speech. The need for the limitation of hate speech, with its inherent risk of escalation into other serious crimes such as genocide, is established. The view of the South African courts is identified as pro-limitation but generally respectful of the right to freedom of expression. A lacuna in current constitutional law, common law and legislative remedies is evident and the various ways in which limitation can be effected are explored; the researcher finds for criminalisation as an effective measure to address this lacuna in hate speech regulation. The importance of complying with the international call for the criminalisation of hate speech is analysed. Insight is gained regarding what would be an effective model for criminalisation. Here lessons are taken from foreign comparatives that have successfully criminalised hate speech in the context of their cultural identity, history and social needs. Ultimately, a framework for effective hate speech criminalisation in South Africa is formulated. / Constitutional, International & Indigenous Law / LL.M

Mercantile law / LLM (Tax Law)

Globally, the justice system has set up courts to respond to complaints of a criminal and civil nature. Courts also respond to complaints which require swift relief by way of shortened procedures, in the form of motion proceedings. In all these complaints, courts have to respond in a manner that leaves litigants with a feeling of satisfaction that justice has been done. To the end of ensuring that there is legal certainty, justice systems in all jurisdictions have established a hierarchy of courts, with lower courts being bound by the decisions of higher courts in their jurisdiction. There has been no problem in the application of this principle called stare decisis, or judicial precedent, in disputes of law. However, in disputes of constitutional interpretation, courts have demonstrated a marked shift from observing the rule of judicial precedent. The disregard for this rule manifests itself particularly in the adjudication of cases surrounded by controversy. It is argued herein that constitutional interpretation is no different from legal interpretation, in that the rule of judicial precedent which characterises court decisions in legal disputes, should characterise court decisions in constitutional interpretation disputes. The Constitutional Court of South Africa itself, though it is the highest arbiter in constitutional matters, is bound by its own previous decisions, unless its previous decisions have become manifestly wrong. Three constitutional rights are analysed. The right to life in its three manifestations, namely, the right to life of the unborn child, the right to life of the convicted criminal not to be hanged, and the right of the terminally ill to continue living by receiving medical care at state expense. The other two rights are the right to privacy, and the right to culture. The right to privacy is the right that has been claimed in political controversies. In isolated instances, specifically mentioned herein, the Constitutional Assembly and the drafters of the Constitution have also contributed to the resultant inconsistency in constitutional interpretation. This is especially so with regard to the right to practise one‘s culture. / Constitutional, International & Indigenous Law / LL.D.