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Sexual abuse within the context of public educationStrydom, Jeanette January 2012 (has links)
The South African Constitution is considered as supreme law. This piece of legislation overrides all others and states in section 28(2): “A child’s best interests are of paramount importance in every matter concerning the child”. This emphasises the significance of the right of the child in South African law, by stating that children are to be protected at all cost. This section of the constitution forms the basis of this thesis with regards to the child and the protections that are to be afforded to them in instances of sexual abuse by educators. In the last several years there has been an increase in the number of cases reported on the sexual abuse, rape, violence and harassment of learners by members of the schooling community. The statistics prove that sexual violence in the schooling system in South Africa is rampant and furthermore indicate that young girls and boys are not as safe as they deserve to be. A teacher or educator is a professional, who is to act in a professional manner at all times – in the course and scope of their employment as educators. When a parent leaves its child at school for the day the educators are acting in loco parentis – in place of parent – thus these children are to be protected, nurtured and cared for in the correct manner. Sexual abuse of a learner by an educator is a gross contravention of South African legislation, the South African Council of Educators (SACE) code of conduct as well as international codes by the International Labour Organisation (ILO), the United Nations (UN) and other conventions. It is therefore fitting that any perpetrator of such violence, disrespect and transgression is to be punished quickly and harshly. Educators who abuse children are to immediately be removed from the school system through dismissal and also be tried criminally. These offenders should also be added to the SACE sexual offenders’ database which needs to be open to the Department of Education (DOE) and more importantly the general public – allowing parents to make the best possible decisions when putting their children in schools, thus ensuring their safety. However, throughout this process the rights of the child are to be protected and regarded with prevailing sensitivity, and their innocence is to be sheltered from any further psychological and emotional harm caused due to the abuse. The South African Professional Society on the Abuse of Children (SAPSAC) argues that a constitutional injunction is powerless to protect a child from being victimised and traumatised by criminal activity.1 All the more should it be incumbent upon the criminal law and criminal procedure and upon the courts, their functionaries and practitioners who regulate its procedure and apply its principles to “protect children from abuse and (to) maximise opportunities for them to lead productive and happy lives … (and to) … create positive conditions for repair to take place”. The thesis that follows, using the principles summarised here, aims to: define sexual abuse of the child, the legal position in South Africa in relation to the sexual abuse of children and case law. Recommendations will then be made and a code of good practice will be established on how to deal with educators who sexually abuse their learners promptly, effectively – without causing any further harm to the child in question.
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The education sector as an essential serviceAdams, Anton John January 2011 (has links)
Because of the impact of teacher strikes on education there has been a call to declare the teacher‟s profession an essential service and thus prohibit them from striking. This call was made by the Democratic Alliance (DA). The Democratic Alliance arguments in their application to the Essential Services Committee was based on the fact that education in South Africa is in a crisis and the life-altering inconvenience this caused for children. The combined teacher unions in the Education Labour Relations Council (ELRC) expressed their concerns over the DA‟s call for education to be declared an Essential Service. The Bill of Rights grants every employee the fundamental right to strike. This is an absolute and should always be exercised under certain controlled conditions, as stipulated by the Labour Relations Act 66 of 1995. Convention 87 of the International Labour Organising (ILO) recognises the right of trade unions, as an organisation of workers set up to further and defend their interest (Article 10), to formulate their programs and organise their activities (Article 3); this means that unions have the right to negotiate with employers and to express their views on economic and social issues affecting the occupational interest of their members. This constitutes the position that the right to strike is one of the legitimate and indeed essential means available to workers for furthering and defending their occupational interest. Balanced against the right of every teacher to strike is the right of everyone to have a basic education as set out in section 29 of the Constitution. In terms of section 29(1)(a) everyone has a right, enforceable against the state, to basic education. This creates a strong positive right. Aspects of the right to education are found in human rights treaties and declarations. This right to education is contained in article 26 of the Universal Declaration of Human Rights (1948) which states that “everyone has the right to education”. The International Covenant of Economic, Social and Cultural v Rights of 1966 covers the right to education comprehensively, especially article 13 and 14. In 1989 the Convention on the Rights of the Child further confirmed this right. The right to a basic education is further enhanced by section 28(2) of the Constitution “(a) child‟s best interest is of paramount importance in every matter concerning the child”. It is significant to note that in 2007 the Constitutional Court elevated the “best interest” principle to a right. This implies that the best interest of the child would be the decisive factor in each matter that affects the child. In deciding to declare the teaching profession as an essential service constitutional rights must be balanced. These are the right to strike, the right to a basic education and the best interest of the child principle.
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Investigation into the implementation of the childrens act no 38 of 2005 in mainstream schools in the Fort Beaufort education districtMankazana, Sobantu Vincent January 2012 (has links)
In this study the focus is on the implementation of the Children’s Act in mainstream schools. The Children’s Act mandates that all children who are in need of care both in school and out of school should be taken care of and be protected. However, they are often not afforded the full opportunity to enjoy the benefits of this Act. This is due to various factors that hinder the process of its implementation in mainstream schools. The main emphasis of this study is on the factors that hinder the implementation of the Children’s Act. The aim of the Children’s Act is to look after and provide services and support to children in need of care and protection. In order to provide such services and support to children, one needs to first identify such learners in need of care and their needs. Having done this, the support needed can be assessed and provided. This process is not easily achieved in mainstream schools. This study seeks to determine the factors that discourage the implementation process of the Children’s Act in mainstream schools. Data collection for this study included face to face interviews with teachers who are principals of schools and Life Orientation teachers, a social workers and school nurse. The data was used to analyze and interpret the challenges that hinder the implementation of the Children’s Act in mainstream schools. Among others, the study found that there is a lack of collaboration among stakeholders and coordination of service delivery. Poor parental involvement and commitment to parent involvement programmes was also evident. However, to a limited degree, there is interaction between the schools and relevant government departments. The study recommends that multidisciplinary teams should be formed whereby scarce resources can be shared. Various professionals should have the opportunity to come together toshare ideas and information. In order to encourage identification of learners in need of care, it is recommended that, the peer groups or peer educators be established and awareness campaign be conducted in schools. The study also recommends that developmental assessment programmes be conducted. Developmental assessment programmes will help gather information directly from learners or from an appropriate adult in the child’s life. They provide frameworks which can be used as guides for eliciting and analysing information.
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The capacity of Canadian Indians for local government on their reservesNicholls, John England Oscar January 1966 (has links)
In studying the capacity of Canadian Indians for local government on their reserves two objects are sought. First we wish to show the extent to which Indians are involved in directing the affairs of their communities. Second, we hope to discover where Indians, in comparison with other Canadians, are incapacitated by virtue of their special legal, social and economic status.
Research for this study was gleaned from files, publications and records of interviews in the offices of the Indian Affairs Branch of the federal government, provincial departments of municipal affairs and offices of municipal associations in Ottawa, Toronto, Winnipeg, Edmonton and Vancouver.
We begin our study by investigating the reality of local government for non-Indians. Then we look at the capacity of Indians for similar forms of local authority on their reserves. Capacity is examined in terms of legal competence, existing economic and administrative ability to carry out local functions and potential for future development of local government.
Non-Indian local government is developed under a complex set of provincial legal and economic controls. Non-Indian municipalities appear to be mainly oriented towards the provision of local services. In contrast Indian local government is developed under the federal legislation of the Indian Act. A flexible interpretation of the Act by federal officials permits the development of local government forms to suit the needs of particular reserves. On the other hand controls exercised by federal officials, along with deficiencies in local economic resources and administrative skills, tend to retard the growth of local government.
A possible way for the reduction of differences between Indian and non-Indian capacities would involve the integration of bands and municipalities within a common framework of local government. There is little evidence at present of such integration if measured in terms of transactions between bands and municipalities, common opportunities under federal and provincial programs of grants and joint membership in regional governments and local government associations.
A set of alternative courses is considered for Indian communities to follow in the future. We conclude that evolution of local government under the Indian Act seems the most appropriate means by which Indian capacities can be used both to improve local services and to develop non-Indian political skills among Indians. / Arts, Faculty of / Political Science, Department of / Graduate
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The Crown’s duty to consult with First NationsChartier, Mélanie 11 1900 (has links)
The Crown has fiduciary obligations to First Nations and must act in
consequence. One of this consequence is that the Crown has a duty to consult with
aboriginal peoples when it infringes aboriginal or treaty right. The thesis deals with the
principles related to the Crown's duty to consult with First Nations. I elaborate on
principles established by the courts and also on questions that remain unanswered to date.
Those questions include when, how and with whom the consultation should be done. I
also examine the situation in New Zealand, where the consultation process is a little more
advanced than here in Canada and compare the principles elaborated by New Zealand
courts with those existing in Canada. From the New Zealand experience, I suggest
consultation guidelines to be used in Canada by the Crown and its representatives. / Law, Peter A. Allard School of / Graduate
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Social workers’ and physicians’ experiences with review panels in British ColumbiaYip, So-han Seraphina 05 1900 (has links)
In British Columbia, individuals with a mental disorder can be hospitalised
against their will under the Mental Health Act (1999), when a physician determines that
"protection of the person or others" is an issue. Involuntary psychiatric hospitalisation
involves a major infringement of an individual's civil liberty. When patients or their
representatives disagree with the treatment teams about their involuntary
hospitalisation, they can apply for an appeal hearing named the review panel under the
Mental Health Act (1999).
From a theoretical perspective, the traditional medical model and the social
constructionist model, which offer different views concerning individuals with mental
illness who are hospitalised against their will, are presented. This theoretical contrast
underscores a major dilemma faced by mental health professionals in fostering client
self-determination, while they are providing services on the principle of beneficent
protection. An empowerment model of social work practice is then described to
illustrate how services can be provided to help mental patients regain a sense of control
over their lives. Concerns about the current legislation regarding involuntary
hospitalisation are also discussed.
To supplement the limited number of studies currently available on review
panels, a quantitative descriptive study was conducted at Riverview Hospital, the only
tertiary psychiatric hospital in British Columbia, surveying the experiences of 39 social
workers and physicians with review panels. A questionnaire consisting of 22 Likerttype
items was used. Four categories were identified: (a) patient-related issues, (b)
effects of review panels on treatment teams, (c) role conflicts, and (d) operational
issues. Despite the apparent lack of formal training, social workers and physicians
generally reported having adequate knowledge of review panels. Social workers and
physicians who were involved more frequently with review panels appeared to have
more positive attitudes towards them. Their training pertaining to the Mental Health
Act was also significantly related to their attitudes. Neither patients nor their families
reportedly had adequate knowledge of the review panel process.
Although some positive effects of review panels were acknowledged, staff
generally had mixed attitudes about review panels. Guided by an empowerment model,
these findings have important implications for social work practice. These include the
need for further professional training, improved communication between health
professionals and legal advocates, education for patients and families, and the support
of patients' collective action, so that review panels can be a more empowering
experience for mental patients. / Arts, Faculty of / Social Work, School of / Graduate
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Shifting boundaries : aboriginal identity, pluralist theory, and the politics of self-government in CanadaSchouls, Timothy A. 05 1900 (has links)
While Canada is often called a pluralist state, there are no sustained studies by political
scientists in which aboriginal self-government is discussed specifically in terms of the
analytical tradition of pluralist thought. Aboriginal self-government is usually discussed as an
issue of cultural preservation or national self-determination. Aboriginal identity is framed in
terms of cultural and national traits that are unique to an aboriginal community and selfgovernment
is taken to represent the aboriginal communal desire to protect and preserve those
traits. Is such an understanding of what motivates aboriginal self-government accurate, or
does it yield an incomplete understanding of the complex phenomenon that aboriginal selfgovernment
in Canada represents?
The political tradition of pluralism allows for analysis of aboriginal self-government
that addresses questions left unattended by the cultural and nationalist frameworks. Pluralism
is often viewed as a public arrangement in which distinct groups are given room to live side by
side, characterized by mutual recognition and affirmation. At the same time, there are
different faces of pluralist theory and each addresses questions about the recognition and
affirmation of aboriginal self-government in different ways. Those three contemporary faces
can be distinguished by the labels communitarian, individualist, and relational.
The major hypothesis advanced is that aboriginal self-government is better understood
if an "identification" perspective on aboriginal identity is adopted as opposed to a "cultural" or
"national" one and if that perspective is linked to a relational theory of pluralism as opposed to
a communitarian or individualist one. The identification approach examines aboriginal identity
not in terms of cultural and political traits, but in terms of identification with, and political
commitment to, an aboriginal community. Relational pluralism in turn, examines the challenge
of aboriginal self-government in terms of power differences within aboriginal communities and
between aboriginal and Canadian governments.
Applying these approaches to aboriginal politics in Canada confirms their suitability.
Contrary to what previous scholarship has assumed, aboriginal self-government should not be
seen primarily as a tool to preserve cultural and national differences as goods in and of
themselves. The politics of aboriginal self-government should be seen as involving demands
to equalize current imbalances in power so that aboriginal communities and the individuals
within them can construct aboriginal identities according to their own design. / Arts, Faculty of / Political Science, Department of / Graduate
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Starboard or port tack? : navigating a course to recognition and reconciliation of aboriginal title to ocean spacesBrown, C. Rebecca January 1900 (has links)
In British Columbia, fifty-one First Nations have filed Statements of Intent signifying their
interest in negotiating a treaty with Canada and the Province of British Columbia since the
establishment of the British Columbia Treaty Commission in 1993. Twenty-seven of these
First Nations participants claim ocean spaces within their traditional territories. Academic
research and writing over the last decade has focussed on Aboriginal title to land, with little,
if any reference, to ocean spaces. The concept of Aboriginal title was recently recognized by
the courts in Delgamuukw v. British Columbia.
My research will explore what information and legal principles could be utilized to recognize
Aboriginal title to ocean spaces within the Canadian legal context, and therefore provide
some bases for First Nations in substantiating their claims. My analysis will begin with a
review of international law principles surrounding title to and jurisdiction over ocean spaces.
Following which, I will delineate the sources available for recognizing such a theory, starting
with a review of the concepts of Aboriginal title as determined in Delgamuukw and their
applicability to ocean spaces.
Delgamuukw has affirmed Aboriginal perspectives are an integral part of the investigation of
Aboriginal title, and voices of members of two particular First Nations being the Haida
Nation and the Tsawwassen First Nation, with whom I visited, will be included. Rounding
out the sources will be a review of comparative legal concepts drawn from the United States
and Australian experiences, and the principles espoused within international human rights
materials.
Having established the avenues for recognition of this concept, I then turn to discussion of its
reconciliation within the Canadian legal context by reviewing theories of co-management and
examining a number of settlement instruments that have yielded some degree of reconciliation
between the federal government and the particular First Nation or Province involved.
Comments from First Nations in respect of the obstacles that hold back reconciliation will be
noted.
In conclusion, my research will deduce Aboriginal title to ocean spaces is a viable legal
concept in Canada, and First Nations have the resources necessary to substantiate their
claims. Comments about the possibilities that may result at the treaty table or in the courts
upon recognition of this concept will also be discussed.
This analysis is timely and important as many First Nations are nearing the stage of the treaty
process where discussions will be directed towards what territories these First Nations
groups will retain and what ownership, jurisdiction and rights they will enjoy as to ocean
spaces and resources. Such issues directly relate to the continued way of life, culture, and
sustainable economic growth and stability of First Nation communities into the twenty-first
century. / Law, Peter A. Allard School of / Graduate
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Stillborn autonomy : why the Representation Agreement Act of British Columbia fails as advance directive legislationRush, Joan L. 05 1900 (has links)
An advance directive is an instruction made by a competent person about his or her
preferred health care choices, should the person become incapable to make treatment
decisions. Legal recognition of advance directives has developed over the last half
century in response to medical advances that can prolong the life of a patient who is no
longer sentient, and who has decided to forego some or all treatment under such
circumstances. Two types of directive have emerged in the law: an instructional
directive, in which a person sets out treatment choices, and a proxy directive, which
enables the person to appoint a proxy to make treatment decisions.
Development of the law has been impeded by fear that advance directives diminish
regard for the sanctity of life and potentially authorize euthanasia or assisted suicide. In
Canada, this fear explains the continued existence of outdated criminal law prohibitions
and contributes to provincial advance directive legislation that is disharmonized and
restrictive, in some provinces limiting personal choice about the type of advance directive
that can be made. The British Columbia Representation Agreement Act (RAA)1 is an
example of such restrictive legislation. The RAA imposes onerous execution
requirements, is unduly complex and restricts choice of planning instrument.
Respect for patient autonomy requires that health care providers honour patients'
prospective treatment preferences. Capable persons must have ready access to a choice
of health care planning instruments which can be easily executed. B.C. should
implement advance directive legislation that meets the needs and respects the autonomy
of B.C. citizens. The Criminal Code must be amended to eliminate physicians' concern
about potential criminal liability for following an advance directive. Advance directive
legislation across Canada should be harmonized. Finally, health care providers should
receive training on effective ways to communicate with patients about end-of-life
treatment decisions to ensure that patients' health care choices are known and respected. / Law, Peter A. Allard School of / Graduate
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A critical analysis of the protection of shareholders when a company acquires its own sharesKiura, Dennis Kimakia 01 1900 (has links)
The capital maintenance doctrine presupposes that a company’s capital must not be returned to its shareholders. The doctrine was anchored on three rules, one of which was that a company cannot acquire its own shares as this amounted to a diversion of capital to the shareholders whose shares were acquired. This rule was partly rationalized as protecting the interests of shareholders. In South Africa the rule was embodied in s 85 of the Companies Act 61 of 1973. However, it was amended by s 9 of the subsequent Companies Amendment Act 37 of 1999 to provide that a company can acquire its own shares if certain substantive and procedural requirements were satisfied. Upon the enactment of Companies Act 71 of 2008, the requirements have not been substantially altered. They are partly geared towards protecting shareholders by ensuring that shareholders are treated equally and fairly. Moreover, the Johannesburg Securities Exchange Limited (hence the JSE Limited) was empowered by the Companies Act 61 of 1973 to promulgate requirements to be met when a company wishes to acquire its own shares. The Companies Act 71 of 2008 does not in express terms empower the JSE Limited to develop requirements to be met when a company wishes to acquire its own shares. However, the Act expressly requires that a listed company wishing to acquire its own shares must also comply with the requirements of the relevant exchange. Such requirements can therefore be deemed to subsist even amidst the new Act as an internal regulation of the JSE Limited. The said requirements are also partly aimed at protecting shareholders, largely by ensuring that adequate information is availed to shareholders to empower them to make informed decisions. / Private Law / LL. M. (Company Law)
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