Student Number : 0215058X - PhD thesis - School of Law - Faculty of Commerce, Law and Management / Socio-economic rights have the potential to contribute to the achievement of social justice through insisting on the satisfaction of vital material needs. However, their effectiveness in this regard is compromised when they are incapable of tangibly contributing to the satisfaction of the needs that they represent. By including justiciable socio-economic rights in the text of the 1996 South African Constitution, its drafters indicated that South Africans are entitled to demand effective relief that amounts to adequate reparation for the harm suffered through the non-satisfaction of their vital material needs. The legitimacy of the constitutional order partially depends on the ability of socio-economic rights to live up to this promise. This dissertation examines the extent of this promise and the extent to which it is currently being fulfilled, in relation to a discrete set of rights - those that operate together to achieve the highest attainable standard of physical and mental health. I argue that successful reliance on healthrelated rights in litigation must, in appropriate circumstances, produce tangible benefits for individual rights-bearers. I explore the extent to which constitutional health rights may realistically be expected to render tangible benefits, examine the degree to which this potential of health rights is realised through current judicial approaches to their vindication and suggest manners in which such approaches may be modified and/or supplemented in order for tangible benefits to result more readily from successful vindication of health rights. In doing this, I attempt to show that a benefit-orientated approach to the interpretation and enforcement of health rights is not only required, but also facilitated by the Bill of Rights in the 1996 Constitution. Moreover, the Bill of Rights enables South African courts to interpret and enforce health rights in accordance with their benefit-rendering potential, without overextending judicial capabilities or transgressing the institutional boundaries of the judicial function. Courts are accordingly implored to acknowledge and affirm the justiciable nature of healthrelated rights and to adopt interpretative, evaluative and remedial practices that enable their tangible vindication in appropriate circumstances.

Thesis (Ph.D. (Ethics))--North-West University, Potchefstroom Campus, 2007.

The increasing frequency and/or severity of climate-related disasters has pushed “environmental refugees” onto center stage, capturing headlines the world over. Although the urgency implied by the “refugee” terminology is apt, the legal reality is that few “environmental refugees” can enjoy the protections of refugee law—a system of law that was created in the post-World War II era to respond to the ongoing needs of Jews displaced during the War and whose stringent requirements reflect the particular historical moment of its creation. Despite evolutions in other areas, refugee law does not typically provide recourse for environmental harms. By contrast, human rights law, at both the international and domestic levels, has continued to evolve to recognize environmental and social environmental rights; for example, the General Assembly of the United Nations in 2010 recognized a human right to water. Issues related to water scarcity or water (mis)management may already be causing affected individuals to leave their homes, and concerns about water availability in the near future necessitate the development of legal tools for protecting these populations. This paper draws on human rights law, as it exists in the international system and as applied in Colombia, to create a framework that may provide greater protection for so-called “water refugees,” given the increasing salience of displacements related to water, the lack of movement in refugee law regarding environmental displacements, and the promise of social and economic rights discourse. / text

In 1996, socio-economic rights were included in the Constitution of South Africa as fundamental human rights. The state is thus compelled to give attention to the protection of people's socioeconomic rights. The question is: Is it the duty of the state alone, or does the church also have a calling with regard to socio-economic rights? In this study, the calling of the church with regard to the protection of socio-economic rights in South Africa is researched. Firstly, socio-economic rights as ethical principle are evaluated in the light of the Scripture. The conclusion is that socio-economic rights are important human rights that can be grounded as fundamental human rights. Thereafter, the history of the origin of socio-economic rights is researched and evaluated. In the history of socio-economic rights, it is grounded in the natural dignity of a human being. However, the Bible teaches that God gave people dignity. The history of socio-economic rights in South Africa is also researched and evaluated. South Africa has a long history of colonialism, segregation and apartheid, and the church has not always been an effective advocate for socio-economic rights. To understand the calling of the church with regard to socio-economic rights, the calling of the church in society is researched. Views of different church and theological traditions are researched and evaluated. The reformed view focuses on the kingdom of God, and the calling of the church with regard to socio-economic rights is described as worship, fellowship, testimony and service. In conclusion, concrete guidelines of how to be an advocate for socio-economic rights are given to the church. / Thesis (Ph.D. (Ethics))--North-West University, Potchefstroom Campus, 2007

Magister Legum - LLM / The sentiment of Justice Ackerman that courts have a particular responsibility and obligation to “forge new tools” and shape innovative remedies to achieve a goal, is profound and based on a constitution with a transformative nature. The injustice of apartheid brought about unequal resource distribution in South Africa and this is well documented. The need for innovative remedies to address these injustices has been in demand. The Constitution of the Republic of South Africa has made available, sufficient remedies for the courts to deal with these concerns. However, the courts need to find a creative way of using and applying these remedies. One such remedy, being promoted by this paper is, structural interdicts with a supervisory jurisdiction. This remedy has a process of meaningful engagement attached to it, to ensure all parties reach practical solutions to ongoing socio-economic rights violations. The ancillary effect of these types of orders will promote future policies to take into consideration socio-economic rights needs of other people in the same position as the applicants. The ongoing supervision of the court will further ensure that government comply with its obligation within reasonable time, and to address ongoing concerns of socio-economic rights violation as and when they arise during the process of engagement. / South Africa

This dissertation provides an in-depth analysis of the practical application and judicial framework pertaining to stem cell research in South Africa. In the realisation of the above-mentioned analysis, and ultimate critique on the current and proposed legal position, focus is placed on aspects of Medical Law, Legal Philosophy and Human Rights. These include concerns on the procurement of informed consent from stem cell donors, ethical and religious influences on the regulation of biomedicine in general as well as the impact of socio-economic indicators in the realisation of the effective implementation of stem cell research. Focus is firstly placed on the medical aspects surrounding the research, whereafter an examination of the current legal position and its practical application is made. Following the discussion of the current legal position, with reference to the array of influences and concerns pertaining thereto, the newly proposed regulative measures are examined within the current international framework. These regulative measures are placed within context of the private and public sector with their different benefits and disadvantages. In a further discussion of the realisation of the private sector’s interests, focus is placed on the role that Intellectual Property Rights play in the protection of monetary incentives to conduct stem cell research. All of the above ultimately leads the author to provide an informed set of recommendations in which the proposed regulative measures can be adapted to ensure the legitimate and practically sound implementation of stem cell research in South Africa. / Dissertation (Magister Legum (Public Law))--University of Pretoria, 2007. / Public Law / unrestricted

Magister Legum - LLM / This paper reports on the findings of a study on the importance of documentation for unaccompanied separated migrant children on South African soil. The objectives of the study is to identify what the international and national laws and policies state about protecting children’s rights, particularly, their socio-economic rights, in the context of irregular migration. Their rights to have legal documentation, their right to education as well as health care, among others. Most importantly, the paper attempts to gain an understanding of the role and obligations of South African stakeholders in terms of the requirements of documentation and the implementation of the relevant laws and policies. To understand what the relevant stakeholders such as NGO’s, DE, Health, DSD and DHA do to protect USMC’s socio-economic rights. Their right to documentation, their right to education, to health care, to the justice system and child protection systems.

In the Constitutional Court case of Mazibuko and Others v The City of Johannesburg and Others CCT 39/09 [2009], a case dealing with the question of access to water, the presiding judge, Kate O'Regan CJ, makes the following opening remarks to the judgment: 'Water is life. Without it, nothing organic grows. Human beings need water to drink, to cook, to wash and to grow our food. Without it, we will die. It is not surprising then that our Constitution entrenches the right of access to water'. My aim in this dissertation is to investigate the couplet of law-life and the political in the Constitutional Court case of Mazibuko and Others v The City of Johannesburg and Others. The case stands as an exemplar of the intersection of life and the political by virtue of its focus on socio-economic rights, specifically the right of access to water enshrined in the Constitution. The history of the case, the jurisprudence employed by the courts, and the responses and critiques to the Mazibuko case add to the problematics to be investigated here. What would it entail if the couplet of law-life would be brought to the concept of the political? It would mean interrogating how life and law is constructed by the political and not merely how the political manages and regulates life through law. If life is considered to be a matter of bare necessities, or mere biological life, there would not be a need to consider the question of the political relation to life; it could be delegated, as it has practically been, to technocratic governmental policy. Bringing the political to questions of life would reveal how the political implicates life in its constituting moment. In this dissertation, I will explore how the political could be brought to the couplet of law-life, focusing particularly focus on socio-economic rights, international law, colonialism, and constitution making. / Dissertation (MA)--University of Pretoria, 2017. / Philosophy / MA / Unrestricted

<p>Poverty and inequality are deeply entrenched in Kenya, with the country being one of the most unequal countries in the world. To eradicate poverty and inequality, enhance the achievement of social justice, fast-track human development, as well as to entrench participatory democracy<br /> and a culture of justification in governance, Kenya has, for the first time, entrenched justiciable socio-economic rights (SERs) in its 2010 Constitution. In this thesis, I undertake a critical analysis of the prospects for the implementation and enforcement of the entrenched SERs as well as the probable challenges that Kenya may face in their realisation. In this endeavour, the thesis develops a theoretical and interpretive approach for the realisation of these entrenched SERs. It entails an expansive analysis of the nature, scope, content and extent of the SERs entrenched in the 2010 Kenyan Constitution, and especially the place of international human rights obligations contained in customs and ratified international human rights treaties due to the provisions of the 2010 Constitution which espouse the direct application of international law in Kenya&rsquo / s domestic legal system. It is submitted in this thesis that in order to improve the socio-economic conditions of the poor, vulnerable and marginalised groups in Kenya, there is a need for their socio-economic as well as political empowerment to enable them to effectively take part in societal decision-making in both the public and private spheres with regard to resource (re)distribution. The theory of dialogical constitutionalism, based on the constitutionally entrenched principle of popular participation in governance and public decision-making, is aimed at the realisation of both political and socio-economic empowerment of these groups. Even though the theory of dialogical constitutionalism underscores the importance of litigation in the achievement of the transformative aspirations of the 2010 Kenyan Constitution contained in the entrenched SERs, it acknowledges that litigation is not the panacea of SER enforcement, and that other political and advocacy strategies play an important role in the emancipation of the socio-economically deprived groups in society. The thesis thus advocates a multi-pronged strategy which espouses the equal participation of all sectors of society in a collaborative and cooperative deliberative effort aimed at the full realisation of the entrenched SERs. To accompany the above theoretical framework for the interpretation and implementation of the entrenched SERs, the thesis further proposes a transformative and integrated approach which combines the progressive aspects of the minimum core approachand the reasonableness approach. This is an approach of purposive interpretion which, in the first instance, envisages the courts undertaking a strict and searching scrutiny of the SER implementation framework developed by the political institutions of the State to ensure that sufficient provision has been made for the basic necessities of the most poor and vulnerable groups in society, basically the espousal of a minimum core content approach. The approach entails the requirement that should the SER implementation framework fail to provide this basic minimum to vulnerable groups, and the political institutions do not provide a substantive justification as to the failure, then the courts should find the relevant SER implementation<br /> framework per se unreasonable and thus invalid. However, should the implementation framework provide sufficiently for the basic essentials for vulnerable groups, the courts should then proceed to review it using the reasonableness standards that have been developed by the<br /> South African Constitutional Court. The rationale for this searching analysis is the acknowledgement that if the needs and interests of the most indigent and marginalised in society are not catered for, the entire corpus of rights in the Bill of Rights becomes redundant. The thesis then undertakes a case study of two rights, the right to food and the right to housing, using the theoretical and interpretive approaches developed in the previous chapters of the thesis. On food security, the thesis finds that Kenya is a food insecure country with a declining food production capacity. This is basically due to a lack of subsidy to farmers, global warming leading to intermittent rainfall, lack of investment in sustainable agriculture as well as a fragmented and contradictory legislative and policy agenda. In response to this situation, the thesis proposes the adoption of a livelihoods approach to food security in Kenya, based on the constitutionally entrenched right to food and other supporting rights. This approach advocates the enhancement of the food entitlements of the different sectors of the Kenyan society to ensure their access to adequate and nutritious food, be it through self-production or through the market. On the right to housing, the thesis finds that housing plays a crucial role in ensuring that people are able to have a holistic, dignified and valuable existence. However, Kenya faces a dire housing situation, with the majority of Kenyans, both in rural and urban areas lacking adequate shelter and sanitary conditions, evidenced by the large informal settlements in urban areas and the squatter phenomenon in rural areas. With the entrenchment of a justiciable right to adequate housing in the 2010 Constitution, the study finds that several legislative and policy reforms are underway to improve the housing situation, with efforts being made to draft theLandlord and Tenant Bill 2007, the Housing Bill 2011, the Evictions and Resettlement Guidelines and the Evictions and Resettlement Procedures Bill, 2012, among others. The thesis proposes that these legal reforms must be undertaken within an environment of cooperative and<br /> collaborative strategic partnership involving all sectors of society so as to ensure that the housing concerns as well as interests of all are catered for.</p>

<p>Poverty and inequality are deeply entrenched in Kenya, with the country being one of the most unequal countries in the world. To eradicate poverty and inequality, enhance the achievement of social justice, fast-track human development, as well as to entrench participatory democracy<br /> and a culture of justification in governance, Kenya has, for the first time, entrenched justiciable socio-economic rights (SERs) in its 2010 Constitution. In this thesis, I undertake a critical analysis of the prospects for the implementation and enforcement of the entrenched SERs as well as the probable challenges that Kenya may face in their realisation. In this endeavour, the thesis develops a theoretical and interpretive approach for the realisation of these entrenched SERs. It entails an expansive analysis of the nature, scope, content and extent of the SERs entrenched in the 2010 Kenyan Constitution, and especially the place of international human rights obligations contained in customs and ratified international human rights treaties due to the provisions of the 2010 Constitution which espouse the direct application of international law in Kenya&rsquo / s domestic legal system. It is submitted in this thesis that in order to improve the socio-economic conditions of the poor, vulnerable and marginalised groups in Kenya, there is a need for their socio-economic as well as political empowerment to enable them to effectively take part in societal decision-making in both the public and private spheres with regard to resource (re)distribution. The theory of dialogical constitutionalism, based on the constitutionally entrenched principle of popular participation in governance and public decision-making, is aimed at the realisation of both political and socio-economic empowerment of these groups. Even though the theory of dialogical constitutionalism underscores the importance of litigation in the achievement of the transformative aspirations of the 2010 Kenyan Constitution contained in the entrenched SERs, it acknowledges that litigation is not the panacea of SER enforcement, and that other political and advocacy strategies play an important role in the emancipation of the socio-economically deprived groups in society. The thesis thus advocates a multi-pronged strategy which espouses the equal participation of all sectors of society in a collaborative and cooperative deliberative effort aimed at the full realisation of the entrenched SERs. To accompany the above theoretical framework for the interpretation and implementation of the entrenched SERs, the thesis further proposes a transformative and integrated approach which combines the progressive aspects of the minimum core approachand the reasonableness approach. This is an approach of purposive interpretion which, in the first instance, envisages the courts undertaking a strict and searching scrutiny of the SER implementation framework developed by the political institutions of the State to ensure that sufficient provision has been made for the basic necessities of the most poor and vulnerable groups in society, basically the espousal of a minimum core content approach. The approach entails the requirement that should the SER implementation framework fail to provide this basic minimum to vulnerable groups, and the political institutions do not provide a substantive justification as to the failure, then the courts should find the relevant SER implementation<br /> framework per se unreasonable and thus invalid. However, should the implementation framework provide sufficiently for the basic essentials for vulnerable groups, the courts should then proceed to review it using the reasonableness standards that have been developed by the<br /> South African Constitutional Court. The rationale for this searching analysis is the acknowledgement that if the needs and interests of the most indigent and marginalised in society are not catered for, the entire corpus of rights in the Bill of Rights becomes redundant. The thesis then undertakes a case study of two rights, the right to food and the right to housing, using the theoretical and interpretive approaches developed in the previous chapters of the thesis. On food security, the thesis finds that Kenya is a food insecure country with a declining food production capacity. This is basically due to a lack of subsidy to farmers, global warming leading to intermittent rainfall, lack of investment in sustainable agriculture as well as a fragmented and contradictory legislative and policy agenda. In response to this situation, the thesis proposes the adoption of a livelihoods approach to food security in Kenya, based on the constitutionally entrenched right to food and other supporting rights. This approach advocates the enhancement of the food entitlements of the different sectors of the Kenyan society to ensure their access to adequate and nutritious food, be it through self-production or through the market. On the right to housing, the thesis finds that housing plays a crucial role in ensuring that people are able to have a holistic, dignified and valuable existence. However, Kenya faces a dire housing situation, with the majority of Kenyans, both in rural and urban areas lacking adequate shelter and sanitary conditions, evidenced by the large informal settlements in urban areas and the squatter phenomenon in rural areas. With the entrenchment of a justiciable right to adequate housing in the 2010 Constitution, the study finds that several legislative and policy reforms are underway to improve the housing situation, with efforts being made to draft theLandlord and Tenant Bill 2007, the Housing Bill 2011, the Evictions and Resettlement Guidelines and the Evictions and Resettlement Procedures Bill, 2012, among others. The thesis proposes that these legal reforms must be undertaken within an environment of cooperative and<br /> collaborative strategic partnership involving all sectors of society so as to ensure that the housing concerns as well as interests of all are catered for.</p>