This limited scope dissertation deals with the protection against torture in international law. The mechanisms which have been established over the years to protect individuals against torture are analysed. The principles of international customary law dealing with torture and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) have been examined against the failure by States to honour their obligations under the Treaty and other legal normative rules. This required deep exploration of the definition of torture and how States can compromise the rule of law by manipulating the definition of torture as contemplated by the Treaty or other instruments. Examples from the former US government highlight the ways in which domestic laws can be used and are continued to be used to allow the use of torture. Measures by South Africa in joining the international community in the fight against torture are also discussed as a case study. While all efforts have been made by the South African system to adopt desirable frame works on the protection of individuals against torture, the lack of education on torture remains the down fall of the system. The dissertation clearly explains that universal jurisdiction applies in respect of torture and this is recognised by both treaty law and customary law. Indeed despite all the current measures in place the use of torture persists. The research clearly reveals that countries hide behind their own laws to perpetrate acts of torture. It is then recommended that proper implementation of the legal structures, informed of the objectives of the structures, is essential in completely eradicating torture. / Public, Constitutional, and International Law / LLM

Developing an adjudicative institutional framework for effective social security provisioning in South Africa entails the establishment of a system that gives effect to the rights (of access) to social security and to justice. These rights are protected in the Constitution and in various international law instruments. In the Constitution, the Bill of Rights guarantees everyone the right to have access to social security, including appropriate social assistance for persons who are unable to support themselves and their dependants. It further requires the State to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to access to social security. Since a dispute resolution (adjudication) framework is an integral part of any comprehensive social security system, it is included in the constitutional obligation of the State. The establishment of a social security adjudication system is an intersection of the right of access to social security and the right of access to justice. The Constitution states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. In addition, other rights protected in the Constitution have a bearing on the realisation of the rights of access to social security and to justice. There is a close correlation between all the rights in the Bill of Rights, as they are interrelated, interdependent and mutually supporting. They must all be read together in the setting of the Constitution as a whole and their interconnectedness must be taken into account in interpreting rights; and in determining whether the State has met its obligations in terms of any one of them. These rights, which include the right to equality (section 9), the right to human dignity (section 10) and the right to just administrative action (section 33) must thus be considered in establishing a social security adjudication system. Also to be considered are other constitutional prerequisites for the establishment of a social security adjudication system, such as the limitation and enforcement of rights (sections 36 and 38 respectively); principles relating to courts and the administration of justice (Chapter 8) and basic values and principles governing public administration (Chapter 10). In establishing a social security adjudication system in South Africa, international law standards and developments in comparative systems must also be taken into account. The Constitution adopts an international law- and comparative law-friendly approach. It states that when interpreting fundamental rights, international law must be considered while foreign law may be considered (section 39). This thesis aims to develop an adjudicative and institutional framework for effective social security provisioning in South Africa that realises the rights of access to social security and to justice in the South African social security system. This is achieved by exploring the concept of access to justice, and its application in the social security adjudication system. The current social security adjudication system is evaluated against the concept of access to justice applicable in international and regional law instruments, comparable South African (non-social security) systems and comparative international jurisdictions. Principles and standards on the establishment of a social security adjudication system are distilled; and a reformed system for South Africa is proposed. / Mercantile Law / LL.D.

This study is an attempt to critique the South African Truth and Reconciliation Commission from a theological ethical perspective. The central critique and argument of this study will be that, it is impossible to reconcile the dispossessor and the dispossessed or the oppressor and oppressed in the way the South African TRC did. As such, it will be befitting to start off this study which explores some of the noticeable lessons and challenges emerging from the South African Truth and Reconciliation Commission (hereafter, the TRC) by elucidating that this study is an attempt to contribute to the on-going discussions on reconciliation. It is also vital to mention up front that this study attempts to contribute to the discussion on reconciliation which seeks to remove injustice at the root. It contributes to a discussion of the weeds of alienation and fragmentation, and it stands in contrast to the frequent use of reconciliation merely to reach some political accommodation and not to address the critical questions of justice, equality and dignity (Boesak & DeYoung 2012). It is also befitting to point out that two central themes – political pietism and Christian quietism – form the backdrop to this study (Boesak & DeYoung 2012). The study contends that reconciliation in South Africa was used merely to reach some political accommodation and did not address the three critical questions of justice, equality and dignity. These arrangements perpetually favour the rich and powerful but deprive the powerless of justice and dignity. Hitherto, this reconciliation is presented as if it does respond to the need for genuine reconciliation and employs a language that sounds like the truth, but it is in fact deceitful – and this we call political pietism. It is also vital to mention that “reconciliation” is a Christian concept, and as such, Christians’ measure matters of reconciliation with the yardstick of the gospel and therefore should know better. However, as it will be shown in this study, when Christians in South Africa discovered that the TRC was not really promoting reconciliation, they became complicit in a deceitful reconciliation. This may have been for reasons of self-protection, fear or a desire for acceptance by the powers that govern the world. Whichever way one looks at it, they tried to seek to accommodate the situation, to justify it and to refuse to run the risk of challenge and prophetic truth telling. As a result, they denied the demands of the gospel and refused solidarity with the powerless and oppressed. This is called Christian quietism (Boesak & DeYoung 2012:1). This study in its attempt to critique the South Africa TRC from a theological ethical perspective will point out that, the TRC which was obviously the product of the negotiated settlement needs to be understood against the background of the global struggle of particularly Third-World countries which were resisting authoritarian regimes put in place by the West for the benefit of the West. As such, this study will point out how the West, in their attempt to keep a grip on the Third-World countries – particularly on their resources – had to recommend and promote their notion of democracy. Democracy became the only option for Third-World countries as a result of the fall of the Soviet Union. It must, however, be mentioned that the problem is not democracy but the manifestation thereof under capitalism. This is because the notion of democracy was recommended to Third-World countries when capitalism was becoming global. As such, this presented some contradictions because democracy emphasizes joint interests, equality and common loyalties whilst capitalism is based on self-seeking inequality and conflicting individual and group interest (Terriblanche 2002). This means that a transition to democracy (especially constitutional democracy) means that the former oppressor or dispossessor will hold on to economic power. As such, the sudden interest of both the NP and the corporate sector in South Africa to a transition to democracy needs to be understood against this background. This study will argue and demonstrate how the ANC was outsmarted during the negotiations in that, at the formal negotiations, the ANC won political power whilst the NP/corporate sector in South Africa won economic power. This is mentioned to here to point out that both the elite compromise reached at the formal and informal negotiations and the influence of the Latin-American truth commissions led to the inability or unwillingness of the TRC to uncover the truth about systemic exploitation. As such, this study will argue and demonstrate that, on the one hand, reconciliation was not added to the truth commission for the purpose of confronting the country with the demands of the gospel and, on the other hand, the TRC was set up (from its inception) for failure. / Philosophy, Practical and Systematic Theology / D.Th. (Theological Ethics)

Women and children are often the most affected by pandemics which have swept through the world, and in this regard the HIV/AIDS pandemics is not an exception. The most common route of HIV infection in HIV positive children under 5 years of age is through Mother-To-Child Transmission (MTCT). In spite of the seriousness of this pandemic, the Constitutional Court has found that the measures taken by the South African government with regard to the Prevention of Mother-To-Child Transmission (PMTCT) has fallen short of what the Constitution requires. This dissertation critically reviews the management of the South African PMTCT programme, and discusses the relevant Court decisions. The study finally clarifies the obligations of the South Africa government in the context of PMTCT under the 1996 Constitution and in terms of international law. / Constitutional,International and Indigenous Law / LL.M. (Legal aspects of HIV/AIDS)

Cyber bullying is a growing phenomenon in schools all over the world, and it is evident that cyber bullying presents certain unique problems for schools in the regulation thereof. From the number of different definitions of cyber bullying, it is also evident that there is no clear concept of the exact nature of cyber bullying, and how it should be addressed in schools. The existing legal framework in South Africa can be used to address cyber bullying in schools, but there is no legislation or policy that is directly aimed at the regulation of cyber bullying at school level. The purpose of this research is to develop a law and policy framework for the effective regulation of cyber bullying in schools. Firstly, a literature review was conducted to determine the nature of cyber bullying and to examine how cyber bullying in American schools is regulated by law. Secondly, a literature study determined the human rights obligations with regard to protecting learners against cyber bullying, and reviewed how current South African law and policy speaks to addressing cyber bullying in schools. In order to investigate the occurrence of cyber bullying in South African schools practically, a case study was conducted at a South African school. All the resources mentioned above were used to develop an education-specific law and policy framework to address cyber bullying in South African schools effectively. This framework includes a suggested insertion in the South African Schools Act, draft Guidelines for the regulation of cyber bullying in schools, draft provisions for schools’ Codes of conduct for learners and an information brochure on cyber bullying. / Public, Constitutional and International Law / LL. D.

This study evaluated the effectiveness of the South African Truth and Reconciliation Commission (SATRC), using the theoretical and conceptual framework of the five pillars of transitional justice. Chitsike (2012) identified the five Pillars of Transitional Justice that the study uses. For that reason, Truth-Seeking and Truth-Telling, Trials and Tribunals, Reparations, Institutional Reform and Memorialisation are the Five Pillars of Transitional Justice that this study elected to use as the conceptual and theoretical framework. The Five Pillars of Transitional Justice that were delineated by Boraine (2005) are referred to for analytical purposes in the study. Methodologically, the study assumes a qualitative posture. Literature study through content analysis that uses description and exploration is deployed to make interpretation of the used literature. This study notes that each one of the pillars of transitional justice has its recommendations and limitations, and the pillars are much more enriched and enriching when applied in complementarity to each other rather than in isolation. The SATRC process also had its achievements and limitations, and its popularity was based on political impressions rather than concrete transitional justice achievements on the ground, in the view of the present study. Furthermore, it appears to the present study that more time is needed for much more reliable evaluations of the effectiveness of the Truth and Reconciliation Commission (TRC) to be made, some of its successes and limitations will take many years and or even decades to manifest because at the end of the day, TRCs are historical process and not events. / Political Sciences / M.A. (Politics)

The legislative supremacy of Parliament has dominated the constitutional law of South Africa for a very long time. In the pre-constitutional era, the judiciary had no power to question the deeds of Parliament. Despite the need for the judiciary to be independent from the two other governmental branches to execute its function effectively, it was surely dependent on them. However, the creation of the Office of the Chief Justice (OCJ) as a separate governmental department by the Constitutional Seventeenth Amendment Act, read together with Superior Court Act, mandated by the requirements of a supreme Constitution (and not Parliament), changed things so that the judiciary is no longer dependent on government for its day-to-day administration. This thesis examines the independence of the OCJ and its role in promoting judicial transformation in the new South Africa. / Public, Constitutional and International Law / LL. M. (Human Rights Law)

At the United Nations Conference on International Organization in April 1945 South Africa affirmed the principle of respect for human rights in a Preamble it proposed for inclusion in the Charter of the United Nations. The proposal was approved and the Preamble was accorded binding force. While South Africa participated in the earliest attempts of the United Nations to draft a bill of rights, it abstained on the adoption of the Universal Declaration of Human Rights because its municipal legislation was incompatible with some articles. Similarly, South Africa did not become a party to the international human rights instruments the declaration inspired, and avoided an active role in their elaboration. Subsidiary organs of the General Assembly undertook several studies on discrimination in the field of human rights. They provided evidence that racial discrimination in South Africa intensified after the National Party came to power in May 1948 on the platform of apartheid and diverged from global trends in humanitarian law. The gap between the Union and the United Nations widened. At the first General Assembly in 1946, India successfully asked that the treatment of persons of Indian origin in South Africa be inscribed on the agenda. The Indian question was later subsumed in the charge that South Africa's racial policies violated the Charter and in 1952 the General Assembly began to discuss apartheid. South Africa protested that these actions contravened Charter Article 2(7), which prohibited intervention in matters of domestic jurisdiction, and were ultra vires. Criticism of the Union increased in intensity, until in 1960 it culminated in calls for economic and diplomatic sanctions. Research shows that South Africa was the main architect of its growing isolation, since it refused to modify domestic policies that alienated even its potential allies. Moreover, it maintained a low profile in United Nations debates on human rights issues, abstaining on all substantive clauses in the two draft covenants on human rights. These actions were interpreted as lack of interest in global humanitarian affairs. South Africa had little influence on the development of customary international law in the field of human rights but was a catalyst in the evolution of international machinery to protect them. / Jurisprudence / (LL.D)

The importance of supervision and the influence of this relationship on the process of supervision, is often underrated. In order for this process to be implementede success-fully knowledge of the different functions including the administrative- educational- and supportive functions is of the utmost importance. It is also becoming increasingly impor-tant that note should be taken of the impact that cultural differences has on supervisor-relationships, the supervisional process and the effectivity of rendering of service as so-cial service organisations increasingly consists of diverse staff members rendering service to a diverse clientelle. This descriptive study has as goal to describe the impact of cultural differences on the practice focussing on the function of supervision and the establishment of diverse organisations and problems arising in this connection. Carefull attention will be paid as to how respondents experience cultural differences in the working environment, their problems and their opinions of how to solve these problems effectively. Conclusions and recomendations were made, which focussed on problems arising as result of cultural differences. The compilation of tentative guidelines which could be usefull in establishing supervision services with greater cultural sensitivity were given. / Social Work / M.Diac (Maatskaplike Werk-Rigting)

Whilst the mining industry has stimulated the economic growth of South Africa, its activities have also impacted on the social and environmental well-being of the communities and ecosystems in which it operates. Environmental degradation often severely affects the livelihoods of people in rural areas, who are often impoverished. Hondeklip Bay, a small fishing community in the Northern Cape, has been affected by the mining activities of the adjacent Hondeklip Bay Mine. The purpose of this paper is to identify whether impoverished residents affected by the detrimental effects of mining activity have rights to enforce the protection of their environment. These environmental rights pertain to an environment that is safe and not harmful to one's health and well-being. Environmental obligations of the mines as illustrated in terms of applicable legislation, and legal recourse available to the residents affected by the infringement of their environmental rights are furthermore explored. / Jurisprudence / LL.M