The Southern African Development Community Tribunal (the Tribunal) is the only judicial organ of the Southern African Development Community (the SADC). Its mandate includes ensuring “adherence to and the proper interpretation of the provisions of the Southern African Development Community Treaty” (the Treaty). The decisions of the Tribunal are final and binding in the territories of member states party to a dispute before it. The responsibility to ensure that the decisions of the Tribunal are enforced lies with the Southern African Development Community Summit (the Summit). The Summit is the supreme policy-making body of the SADC. It comprises the Heads of State or Government of all SADC member states. The decisions of the Summit are binding on all member states and, upon referral from the Tribunal, it has the power to take appropriate action against a member state who refuses to honour a decision of the Tribunal. The Tribunal was established primarily to deal with disputes emanating from the SADC’s economic and political units and not with human rights. A dispute concerning allegations of human rights violations in Zimbabwe was brought before the Tribunal by farmers affected by the country’s land-reform policy. The Tribunal, through reliance on the doctrine of implied powers, and the principles and objectives of the SADC as contained in the Treaty, extended its jurisdiction. In particular, the Tribunal found that it had jurisdiction to hear cases involving human rights violations and that there had indeed been human rights violations in the case before it. It consequently ruled against Zimbabwe. This decision has been welcomed by many within the SADC region as showing the Tribunal’s commitment to interpreting the Treaty in a way that does not run counter the rights of SADC citizens. However, the Tribunal’s decision has met with resistance from Zimbabwe and has not been implemented on the ground, inter alia, that the Tribunal acted beyond its mandate. The Tribunal has on several occasions referred cases of non-compliance to the Summit for appropriate action against Zimbabwe. The Summit, however, has done nothing concrete to ensure that the Tribunal’s decisions are enforced in Zimbabwe. Instead, in an unexpected move that sent shockwaves through the SADC region and beyond, the Summit suspended the Tribunal and resolved that it should neither receive nor adjudicate any cases. During the SADC summit in August 2014, a Protocol on the Tribunal in the Southern African Development Community was adopted and signed (the 2014 Protocol). In terms of this Protocol the iii jurisdiction of the (new) Tribunal will be limited to inter-state disputes. Unfortunately, it also does not provide any transitional measures to address issues such as the manner to deal with pending cases and the enforcement of judgments. When it comes to the execution and enforcement of judgments, it can be argued that the 2014 Protocol is largely a replica of the original 2000 Tribunal Protocol. The reason for this is that the envisaged mechanisms to enforce the decisions of the new Tribunal is to a large extent similar to the previous one. Unsatisfied over the non-compliance with the decision by Zimbabwe, the litigants approached the South African courts to enforce the Tribunal’s decision in South Africa.1 The South African courts found that South Africa is obliged under the SADC Treaty to take all the necessary measures to ensure that the decisions of the Tribunal are enforced, and ruled against Zimbabwe. However, the decision is yet to be enforced. The non-compliance with the judgments and a lack of mechanisms to enforce the decisions of the Tribunal, are crucial issues as they undermine the authority of the Tribunal. This thesis explores whether the Tribunal acted within its mandate in receiving and hearing a human rights case. It further considers whether, in the absence of a human rights mandate, the Tribunal enjoys implied powers under international law to invoke the powers necessary for the fulfilment of the objectives set out in the Treaty. It also reviews the concept of state sovereignty and the extent to which it has been affected by human rights norms post-World War II; regionalism; and globalisation. An important aspect examined, is the relationship between SADC Community law and the national law of member states. The relationship between national courts and the Tribunal also receives attention. Ultimately, the discourse addresses compliance and enforcement of the Tribunal’s decisions in the context of international law. To the extent relevant, I draw on other regional (the European Court of Justice) and sub-regional (the ECOWAS Community Court of Justice, and the East African Court of Justice) courts to establish how they have dealt with human rights jurisdiction and the enforcement of their judgments. / Jurisprudence / LL. D.

The principle of complementarity is a tool used to punish the commission of core international crimes. A concerted approach is required to combat war crimes, genocide, crimes against humanity and aggression. The Prosecutor of the International Criminal Court needs to fully appreciate the express and implied discretionary powers of states to ensure all possible accountability mechanisms are explored. Failure by the Prosecutor to do so results in missed opportunities to capitalise on various options related to the proper application of complementarity. Therefore, there is a need for consultations to establish that the International Criminal Court and prosecutions can no longer exist without competing alternatives preferred by states. The current misunderstandings on the application of complementarity are rooted in unresolved state and prosecutorial discretions. The endangering of state discretion threatens the integrity and credibility of the International Criminal Court. The unaddressed question of state discretion is also at the centre of disputes between the African Union and the International Criminal Court. Grey areas in the application of complementarity are clearly visible through the inconsistency and diversity of the International Criminal Court decisions and frequent prosecutorial policy proclamations. As a result, prosecutorial discretion needs to be checked. Prosecutorial discretion is checked at the United Nations, International Criminal Court and state levels. The checks at regional level and by non-prosecutorial options need to be explored. The call is for the International Criminal Court not to neglect the legal-political environment which the Court operates in. The environment is essential in demarcating the exercise of discretions. The Kenyatta case is illustrative of the need to invent an interpretation that reflects the evolving theory to practice reality. The development or amendment of a prosecutorial policy is desirable to give guidance on the value, circumstances and priority accorded to justice. The policy should be comprehensive enough to accommodate mechanisms which advocate for strengthened state discretion. For instance, African Union instruments and treaties reveal that the respect of state discretion is one of the core principles of the African Union system. / Public, Constitutional, and International Law / LL.D.

LLM / Department of Mercantile Law

Based on society's established norms, girls and boys are expected to behave differently. Certain behaviours are also differently accepted due to gender. This makes it possible to question if the principle of the best interests of the child in cases regarding The Compulsory Care of Young Persons Act (1990:52) (LVU), applies in the gender-neutral way that it's intended to do. To answer this, we have collected data through “collection of materials''. More specifically, we have used cases from a sample of administrative courts and courts of appeals which all deal with 3§ LVU. The data has been analysed through the method “qualitative content analysis” in which different patterns could be read out. The main conclusion of our study is that girls tend to be judged more harshly than boys. The courts assessments in girl cases/judgments includes factors that in boys cases/judgments goes unnoticed, like factors related to mental illness and self-harm. Another conclusion is that the principle creates space for many different interpretations which includes gender norms upon application of the 3§ LVU. When the principle is gender neutral, like it's intended to do, a discrimination because of sex can be hidden.

The composite right to meaningful and informed participation in the criminal process comprises the right to information, the right to understand, the right to be prepared, the right to be present, the right to confrontation and the right to present one’s case. The sub-rights are not of an overarching nature such as the right to legal representation and the right of access to the law. The various rights are grouped together because they show some connection with the ability of the suspect or the accused to participate in the criminal proceedings as a legal subject, and not as an object of the proceedings as in primitive times. These rights ensure that the accused will not participate in the criminal process from an unfavourable position. The heading ‟meaningful and informed participation” is therefore a collective term for these rights. These sub-rights form part of the comprehensive right to a fair trial. The thesis examines aspects of the position of the accused in South Africa and in foreign jurisdictions such as the United States of America, Canada, New Zealand, Australia, Germany, the United Kingdom and Islamic systems. International instruments such as the European Convention for the Protection of Human Rights and decisions of the United Nations Human Rights Committee are also considered. The thesis first considers the historical perspective of the accused in primitive times when he was regarded as an object of the criminal proceedings, to the present time when he is regarded as a subject of the proceedings. The study on foreign jurisdictions reveals that for the most part, our law is in line with the law of other countries. The study also demonstrates that the various rights are not absolute. In exceptional circumstances, some diminution of the accused’s rights is necessary to protect the interests of society. Nevertheless, the courts should act cautiously and not allow the exceptions to overtake the rule. The judiciary should strive to find a better balance between the constitutional rights of the accused and the interests of society. To this end, the judicial system must be objective yet vigilant. / Criminal & Procedural Law / LL.D.

The world has seen gradual evolution of regional human rights arrangements. The adoption by the UN General Assembly of the Universal Declaration of Human Rights on December 10, 1948, was followed by the creation of numerous regional instruments that address concerns of particular importance in the regional context. Three world regions, Africa, the Americas and Europe, have established their respective regional instruments together with the supervisory mechanism, such as commissions and courts. The African Charter on Human and Peoples’ Rights, with its emphasis on group rights and individual duties challenges the Western liberal account of rights, as expressed in the Universal Declaration of Human Rights. The cultural differences brought to the fore not only the tension between individual and group rights but also the question as to whether of the universalism of human rights is possible. The study advocates for a moderate universalism of human rights, which can only be achieved through a dialogue among different cultural approaches to the notion of human rights. This study examines the content and substance of human rights norms of the African system with a view to recommending the possible strategies for their reform. Its central thesis is, the system is rather weak and therefore needs to be reformed. Toward this end, the study analyses the provisions of the African Charter. Thereafter, it explores its weaknesses and proposes strategies for their reform. The African human rights mechanisms face a number of common and particular challenges. Prospectively, Africa is going through a tremendous and interesting phase. These challenges are not insurmountable. / Constitutional, International and Indigenous Law / LL.D.

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.

During the 1990s Yugoslavia and Rwanda were swept by wars accompanied by serious violations of international humanitarian law. Grave and severe crimes wiped away lives and destroyed properties. The United Nations Security Council determined that the violations committed constituted threats to international peace and security, declaring itself empowered to take action. It established international ad hoc criminal tribunals for Yugoslavia and Rwanda with the mandate of prosecuting individuals responsible for those crimes as an enforcement measure under Chapter VII of the United Nations Charter. Investigating the tribunals’ effectiveness enables one to assess whether they achieved the anticipated outcomes based on the tribunals’ mission, goals, and objectives without creating other problems. The research relies on naturalism and positivism to put the tribunals in a moral and ethical perspective. By examining how the tribunals were established, their objectives, the investigation and prosecution processes, the reliance on guilty plea and judicial notice and the imputation of criminal responsibility by applying joint criminal enterprise and command responsibility doctrines; the study argues that prosecution has not been an effective tool as contemplated by the Security Council. An analytical and comparative review of various domestic and international legal resources helped to provide an insightful approach for an effective prosecution of international crimes. Credible, legitimate and legal judicial institutions in which professional judges and prosecutors discharge their function independently, impartially and are accountable may achieve justice for the victims of international crimes. Ad hoc tribunals failed to thoroughly investigate and assume the dual role of prosecution. They conveniently used legal procedural tools that fit petty domestic crimes; unfortunately demeaning the magnitude of international crimes of concern. Criminal responsibility was mostly imputed without properly scrutinising the legality, extent, actual participation and guilty mind of the alleged perpetrators. Effectiveness should be a value assessment. Imposed and overburdened ad hoc tribunals are inappropriate and should be abandoned. / Public, Constitutional, & International / LLD

D. Litt. et Phil. (African Politics) / This study is an exploration of transitional justice mechanisms available to post conflict communities. It is a context sensitive and sustained interrogation of the effectiveness of endogenous transitional justice mechanisms in post-colonial Zimbabwe. The study utilised Ruti Teitel’s (1997: 2009-2080) realist/idealist theory as its theoretical framework. Using the case of Africa in general and Zimbabwe in particular, it analyses the application of imported idealist transitional justice mechanisms, mainly International Criminal Court (ICC) trials. It also debates the efficacy of realist transitional justice mechanisms, mainly the South African model of a Truth and Reconciliation Commission (TRC).The study explores the application of what it terms broad realist transitional justice mechanisms used mostly in rural areas of Zimbabwe to achieve peace building and reconciliation. These modes of everyday healing and reconciliation include the traditional institutions of ngozi (avenging spirit), botso (self-shaming), chenura (cleansing ceremonies), nhimbe (community working groups) and nyaradzo (memorials). The key finding of this exploration is that local realist transitional justice mechanisms are more efficacious in fostering peace building and reconciliation than imported idealist mechanisms such as the ICC trials and imported realist mechanisms such as the TRC. More value can be realised when imported realist mechanisms and local realist transitional justice mechanisms complement each other. The study contributes to the literature on transitional justice in general and bottom-up, victim-centred reconciliation in particular. It offers a different approach to the study of transitional justice in post conflict Zimbabwe by recasting the debate away from the liberal peace paradigm which critiques state centric top-down approaches such as trials, clemencies, amnesties and institutional reform. The study considers the agency of ‘ordinary’ people in resolving the after effects of politically motivated harm. It also lays the foundation for further research into other traditional transitional justice mechanisms used for peace building and reconciliation elsewhere in Africa / Political Sciences

The history of the criminal justice system in South Africa, in the last decade is a history dominated by the desire for change and transformation. It will be remembered that we are talking of a system which, in the past, formed part of the State apparatus of a minority government which included racist elements and highly restrictive legal regime in dealing with communities, crime and criminals. The criminal justice system is constituted by four core departments, namely: the South African Police Services; Department of Justice, Correctional Services and Welfare. The argument is whether the volunteers from the community should be involved at all in the fight against crime or not. Some people feel that a system· of justice should be controlled by professionals, who are accountable for their decisions, namely: the Police, Justice, and Correctional Services. However, the research revealed that a system which excludes the community from participating, will render itself ineffective and open to abuse. This topic should be further researched within each department in the criminal justice system in order to explore possibilities of attracting volunteers in the transformation of their respective departments. / Penology / D.Litt. et Phil. (Penology)