Malawi is a state party to a number of international human rights instruments that guarantee the rights of children with disabilities (CWDs), which include the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD); the UN Convention on the Rights of the Child (CRC); and the African Charter on the Rights and Welfare of the Child (ACRWC). The instruments guarantee the right to education, among other rights. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2011. / http://www.chr.up.ac.za/ / nf2012 / Centre for Human Rights / LLM

LLM / Department of Mercantile Law / Scholarship on the subject of Corporate Social Responsibility (CSR) highlights its four components: economic, legal, ethical and philanthropic responsibility. In South Africa, while the economic, legal and ethical components of CSR are regulated and attract punitive measures for erring corporations who fail to adhere to such demands, the application of the philanthropic aspect of CSR is problematic. The application of philanthropic responsibility suffers normative, institutional and accountability deficiencies in South Africa. Hence, corporations do not conscientiously direct philanthropic responsibility towards achieving core socio-economic needs of their host communities. In the light of international human rights standards relevant to CSR, this research attempts to examine domestic laws which regulate the practice of CSR in South Africa and advance how the philanthropic aspect of CSR can be developed to achieve the realisation of socio-economic rights, in particular, the rights to access to health care, water and social security, education, housing and clean environment. The argument is made that through the formulation and application of an appropriate legal framework, philanthropic CSR can play a contributory role to the realisation of socio-economic rights recognised under the 1996 South African constitution. The implications are that in appropriate cases socio-economic rights do not only bind the state and consequently apply to the "vertical" relationship between individuals and the state, but could also apply "horizontally", in respect of the relationship between private entities. This is a controversial issue and its full implications have not yet been resolved.

Philosophiae Doctor - PhD / Local government in South Africa is an autonomous policy implementation arm of the government system. The purpose of this study was to examine the institutional, organisational, and human resource capacity challenges the Saldanha Bay and Swellendam Municipalities in the Western Cape faced in their policy implementation especially on poverty alleviation. The objectives of the study were to develop a theoretical framework for examining institutional, organisational and human resource capacity in the Saldanha Bay and Swellendam Municipalities; to discuss the local government constitutional, legislative and policy framework within which the Saldanha Bay and Swellendam Municipalities delivered services to communities; to examine the capacity challenges in the service delivery of the Saldanha Bay and Swellendam Municipalities and, thereby, highlight operational problem areas; and to make general policy recommendations on the basis of the research findings of the study. The methodology used was the case-study approach. It allowed an in-depth understanding of the dynamics present within Saldanha Bay and Swellendam municipality. The methodology enabled the researcher to answer the research question: In what ways, and with what results has institutional, organisational and human resource capacity affected service delivery in the Saldanha Bay and Swellendam Municipalities in the Western Cape? The major findings of the study were that local government capacity for policy implementation is directly influenced by the presence or otherwise of institutional, organisational and human resource capacity. These dimensions of capacity are mutually inclusive, independent and interrelated in practice. The study makes several policy recommendations. In the area of institutional capacity the recommendations were that floor-crossing legislation and practices must be done away with; that weak capacitated municipalities ought to be alleviated by public - private partnerships as a mechanism to enhance a municipality's ability to develop and implement policy; and that instead of solely setting standards and monitoring performance, the provincial treasury should assist municipalities to acquire financial competencies. In the area of organisational capacity it was recommended that the community ought to participate in the recruitment and selection committee of the Municipal Manager. It was also recommended that municipalities should establish district-wide forums for financial heads whose purpose would be to create a platform for collaboration, and for the exchange of ideas. And in the area of human resource capacity it was recommended that district municipalities ought to assume a more prominent role in building the capacity of the local authorities with which they share legislative and administrative powers. It was also recommended that both the administrative and political leadership ought to participate in compulsory executive and/or leadership training programmes SALGA implements through some tertiary educational institutions and/or through private service providers.

Doctor Legum - LLD / The UN Convention on the Rights of Persons with Disabilities (CRPD) is the latest human rights treaty at the UN level. The process leading to the adoption called attention to the plight of persons with disabilities, and redefined approaches to issues of disability. Fundamentally, the CRPD embodies a paradigm shift in thinking about disability. It embraces the social model of disability, in terms of which disability is a function of the interaction between a person with impairment and his or her environment as opposed to an inherent limitation of functioning. The social model is, in turn, anchored in a human rights approach to disability. No doubt, the adoption of the CRPD triggered immense optimism for the realization of the rights of persons with disabilities. One of the rights recognised under the CRPD is the right to education. Article 24(1) of the CRPD recognises the right of persons with disabilities to education and sets out the aims of such education. Article 24(2) sets out a number of principles to guide the implementation of the right. These include: non-exclusion from the general education system including non-exclusion of children with disabilities from free and compulsory primary education; access to inclusive quality and free primary education on an equal basis with other children in the communities in which children with disabilities live; reasonable accommodation of a student’s needs; provision of support necessary to facilitate effective education; and provision of individualised support measures in environments that maximise academic and social development of the students with disabilities. It is generally accepted that the right to education is one of the most essential rights, particularly in light of its empowerment function that helps to facilitate the exercise of other rights. The primary level of education has particularly attained global recognition and priority in resource allocation and implementation. Primary education contributes significantly to the maximum development of the full human potential of children. There are therefore differentiated obligations for the right to primary education in international human rights. Nevertheless, there are still significant barriers to access to primary education, particularly in the African region. While children with disabilities have been excluded from education for a long time the world over, their exclusion in the African context is particularly endemic. The core purpose of this thesis is to determine how article 24(2) of the CRPD affects or is likely to affect primary education of children with disabilities, particularly in the context of developing countries. The focus of the enquiry is mainly the law and policy in this regard. The subject spans three main spheres of rights: children’s rights, socioeconomic rights (particularly the right to education), and finally disability rights. Children’s rights, especially since the adoption of the Convention on the Rights of the Child (CRC), are generally accepted. The right to education also has a long standing history, and whereas debate regarding the appropriate approaches to its implementation still abides, there is apparent normative and jurisprudential consensus on some aspects thereof, particularly at the primary education level. It is essential to determine the relational framework of these spheres with the disability rights established under the CRPD. The thesis finds that the CRPD does in fact redefine the parameters of the right to education as previously understood in international human rights instruments. Particularly, the expanded aims of education under article 24 call for education systems that recognise non-academic learning, such as the development of the talents or creativity of the learner. This provision is particularly significant to the child with disabilities. Also, while not establishing an entirely new right, the principles under article 24(2) establish actionable sub-entitlements that enhance the justiciability right to education for children with disabilities. However, it is apparent from the comparative studies that it is the implementation of these provisions that presents the greatest challenge for the realisation of primary education for children with disabilities. This suggests that whereas norm creation as under the CRPD may have the value of triggering and sustaining discourse on appropriate responses in the context of the education of children with disabilities, it is the translation of these norms into practical action points that is the determining factor for realization of the right. / South Africa

The thesis offers new paradigms for advancing socio-economic rights in Africa. Many States Parties to human rights instruments have failed to promote the common welfare of their citizens partly because of the justiciability debate, which continues to complicate intellectual and practical efforts at advancing socio-economic rights. The debate also prevents the normative development of these rights through adjudication. Furthermore, traditional human rights theory and practice have been state-centric, with non-state actors largely ignored in the identification, formulation, and implementation of human rights norms. Yet, the involvement of non-state entities in international arena has limited states' autonomies considerably, with serious implications for human rights. Transnational Corporations (TNCs) have capacities to foster economic well-being, development, tenchnological improvement, and wealth, but they also often cause deleterious human rights impacts through thei employment practices, environmental policies, relationships with suppliers and consumers, interactions with governments, and other activities. The thesis argues that socio-economic rights are normative and justiciable. It argues that traditional approaches are no longer sufficient to secure human rights and calls for a dismantatling of some structures erected by doctrinal systems; for realignment of relationships among social institutions; and for integrated bundles of fundamental interests that harness benefits of human rights norms and widen the landscape to commit both formal and informal regimes. Fashioning out a new paradigm for advancement of socio-economic rights requires addressing state capacity. It requires an integrative and global interpretive framework. It requires, finally, a new paradigm to commit non-state actors in Africa. The illustrative chapter uses the rights to work and to social security as templates for some prescriptions towards reaslising socio-economic rights in Africa. / Jurisprudence / LL.D.

The thesis offers new paradigms for advancing socio-economic rights in Africa. Many States Parties to human rights instruments have failed to promote the common welfare of their citizens partly because of the justiciability debate, which continues to complicate intellectual and practical efforts at advancing socio-economic rights. The debate also prevents the normative development of these rights through adjudication. Furthermore, traditional human rights theory and practice have been state-centric, with non-state actors largely ignored in the identification, formulation, and implementation of human rights norms. Yet, the involvement of non-state entities in international arena has limited states' autonomies considerably, with serious implications for human rights. Transnational Corporations (TNCs) have capacities to foster economic well-being, development, tenchnological improvement, and wealth, but they also often cause deleterious human rights impacts through thei employment practices, environmental policies, relationships with suppliers and consumers, interactions with governments, and other activities. The thesis argues that socio-economic rights are normative and justiciable. It argues that traditional approaches are no longer sufficient to secure human rights and calls for a dismantatling of some structures erected by doctrinal systems; for realignment of relationships among social institutions; and for integrated bundles of fundamental interests that harness benefits of human rights norms and widen the landscape to commit both formal and informal regimes. Fashioning out a new paradigm for advancement of socio-economic rights requires addressing state capacity. It requires an integrative and global interpretive framework. It requires, finally, a new paradigm to commit non-state actors in Africa. The illustrative chapter uses the rights to work and to social security as templates for some prescriptions towards reaslising socio-economic rights in Africa. / Jurisprudence / LL.D.

The purpose of this thesis is to prove the existence of the right to adequate healthcare through a critical analysis of the law of obligations, constitutional law and international law framed in the wider focal point of South African medical law. The Constitution only makes provision for the right to access to health care. Conclusively this thesis will have to establish a link between a minimum standard in health care and the Constitution. It is submitted that the most efficacious method of establishing this link is with the duty of care, which is intrinsically linked to the doctor-patient relationship. If a critical analysis of the doctor-patient relationship can establish a clear link between the duty of care and state liability then such a link can successfully be applied to the Constitution. If this link is transposed onto the Constitution, a critical evaluation of the rights in the Bill of Rights will then reveal the most applicable right that can house the right to an adequate standard of health care. Such an analysis is only part of the solution however. In order to make this right effective, the international body of medical laws must be critically analysed and juxtaposed against this adequate standard. This carries the dual purpose of adding normative content as well as determining the current state of South Africa’s obligations under international human rights law, and to what extent those obligations have been discharged. Finally, and most significantly, the right to adequate healthcare, as it was forged in the international legal analysis, will be transposed onto the current South African jurisprudence of socio-economic rights. This practical application will then be reflected onto the new National Health Care Insurance to show conclusively that the current governmental approach of effecting health care is wholly inoperable and will ultimately result in significant harm and extensive human rights violations. This is based on the government only considering access to health care sufficient to discharge its duties and being totally incapable of effectively managing its resources. The core outcome for this thesis is to prove the existence of the right to adequate healthcare. Secondary outcomes are tracing the history of medicine to illustrate the creation and evolution of the doctor-patient relationship, a critical analysis of the application of medical ethics to South African law of obligations, a critical analysis of the Constitution and its fundamentals, an exhaustive evaluation of South Africa’s duties and accomplishments under its international obligations and effectively applying the right to adequate healthcare which is diametrically opposed to the current course South Africa is taking to provide health care. / Dissertation (LLM)--University of Pretoria, 2012. / Public Law / unrestricted

台灣司法院大法官早在1948年就開始進行違憲審查，迄今已釋憲超過65餘載，共作成730餘則大法官解釋，違憲宣告的比例大約30%至40%之間，其中與社會權相關的案件約20餘件，面對社會權應如何司法性的提問，我國學者多認為大法官對於社會權案件之釋憲立場過於難以捉摸，時而寬鬆時而嚴謹，大法官於社會權案件之審查上，並未創造出一套如同自由權般穩定且具有預測可能性的審查標準。 對於我國大法官於社會權案件中的釋憲難題，若僅著墨於方法論上的研究，忽略國家整體社會發展的歷史脈絡，將有見樹不見林之遺憾，而此種將社會發展歷史脈絡融入大法官釋憲過程中，最受國際推崇者莫過於南非憲法法院。南非在歷經長達數百年的種族隔離後，終於揮別威權擁抱民主，並擁有一部為世人所稱羨的新憲法，然而新民主南非所面臨來自於經濟、社會、政治與轉型正義等各方面之挑戰，並未因新憲法的制定而全盤迎刃而解。相反的，民主化後的新政府因財政短缺，導致無法實踐南非憲法中所保障之社會權，求助無門的民眾最終只能向憲法法院訴請權利保障。南非憲法法院面對困擾全球各地憲法法院之亙古難題「社會權如何司法性」時，並不懼怕挑戰，展現出以人為本之人權保障與弱勢保障之高度，做出許多為世人所稱羨之社會權憲法判決。 反思我國之社會權釋憲案件，多數均非由經濟弱勢者所提出，甚或有些與弱勢生存保障密切相關之釋憲案，最終這些弱勢群體之弱勢成因、社會處境現狀並未在釋憲場域中被凸顯、被衡量，導致憲法權利保障所連結之個人或群體從事現場域中消失了。對此，人民權利保障與權力分立原則同為憲法之兩大基石，二者間並無孰輕孰重之差別，故在社會權案件中，雖需考量資源有限性等權力分立之問題，然而過度尊重立法者之形成自由忽略人民權利保障之作法，仍有進一步改善之空間。

For many sets of reasons, including the unequal power relationship between them and most underdeveloped states, and probably more in Africa than anywhere else in the world, non-state actors (NSAs) like states are involved in the violation of human rights. With the phenomenon of globalization, their role has become even more pronounced with some of the traditional functions of the state being performed by them, with implications for human rights, especially socioeconomic rights. Unfortunately, state-centred traditional international law has proved to be ill-equipped to hold NSAs directly accountable and liable for their violations of human rights. NSAs are only expected to adhere to non-binding voluntary standards, such as codes of conduct. Yet, if properly interpreted and enforced, the African Charter for Human and People’s Rights (ACHPR) can be relied upon to hold them accountable. Against this backdrop, the study interrogates the existing universal and regional human rights laws and systems with the view to identifying any rules, principles, case law or literature that can help hold NSAs directly accountable for human rights violations. For better advocacy and protection of human rights on the African continent, it makes a case for a paradigm shift away from a state centred to a holistic approach that would include NSAs and ensure that they are also bound to protect human rights and become accountable for their violations. / Private Law / LL.M.

This study critically analyses the protection and enforcement of inmates’ socio-economic rights in South Africa. For the purpose of this study inmates’ socio-economic rights include the right to adequate medical treatment, accommodation, nutrition and education. This analysis is informed by the fact that South African courts are struggling to interpret and enforce inmates’ socio-economic rights as required by the Constitution and international norms and standards. The objective of this study, therefore, is whether South Africa protects and enforces these rights as required by the Constitution and international norms and standards. In an attempt to resolve the problem, the methodology of this study relies on a legal methodology which focuses on a review of law books, journal articles, the constitutions, statutes, regulations and case law. The study concludes that South Africa protects and enforces these rights as required by the Constitution and complies with international norms and standards. However, the enforcement of these rights has to pay attention to the constitutional imperatives of interpreting the Bill of Rights. When interpreting inmates’ right to adequate medical treatment, it is imperative for the courts to unpack its content. The courts need to also promote the value of human dignity when determining whether overcrowding violates their right to adequate accommodation. The determination of whether their right to adequate nutrition has been violated should focus on whether inmates’ claim to cultural food is based on a sincere belief which could be objectively supported. Further, the Regulations should extend the right to cultural or religious food to all inmates. Lastly, it is the duty of the courts and the institutions of higher learning to ensure that inmates have access to the internet for study purpose. / Public, Constitutional, & International Law / LL.D.