Thesis (LLM (Public Law))--University of Stellenbosch, 2010. / Bibliography / ENGLISH ABSTRACT:The objective of this thesis is to establish whether the notion of public nuisance has a legitimate purpose in post-apartheid South African. Public nuisance originated in English law in the 12th century as a tort-based crime called tort against land and was used to protect the Crown against infringements. This special remedy of the Crown was used in cases of unlawful obstruction of public highways and rivers, damage or injury causing an inconvenience to a class or all of her majesty‟s subjects and a selection of other crimes. The notion of public nuisance was adopted in South African law during the late 19th century. Between its inception and 1943, the notion of public nuisance was applied in line with its original aims, namely to protect and preserve the health, safety and morals of the public at large. Public nuisance regulated unreasonable interferences such as smoke, noise, violence, litter and blockage of roads which originated in a public space or land, as opposed to a private space or land. However, the public nuisance remedy was indirectly used, in a number of cases during the 1990s, by private individuals to apply for an interdict to evict occupiers of informal settlements. In so doing, these private individuals bypassed legislation regulating evictions and in the process disrupted or frustrated new housing developments, especially those provided for in land reform programmes. In fact, it was established that this indirect application of public nuisance is unconstitutional in terms of section 25(1) of the Constitution. Most of the public disturbances originally associated with the public nuisance doctrine are currently provided for in legislation. Since the remedy is now mainly provided for in legislation, the question is whether the doctrine of public nuisance as a Common Law remedy is still relevant in modern South African law. It was concluded, especially after an analysis of two cases during 2009 and 2010, that the notion of public nuisance only has a future in South African law if it is applied iv in the absence of statutory nuisance or any other legislation covering public nuisance offences and where it is not used as an alternative mechanism to evict occupiers. / AFRIKAANSE OPSOMMING: Die doel van die tesis is om vas te stel of publieke oorlas as gemeenregtelike remedie „n geldige doel in post-apartheid Suid-Afrika het. Die remedie bekend as publieke oorlas het ontstaan in 12de eeuse Engelse reg. Hierdie remedie het ontwikkel as „n delikteregtelike en kriminele remedie, met die doel om land wat aan die Kroon behoort te beskerm. Publieke oorlas het, onder andere, toepassing gevind waar daar onwettige obstruksie van publieke hoofweë en riviere was sowel as skade of nadeel wat vir die breë publiek ongerief sou veroorsaak. Ander misdade was ook gekenmerk as „n publieke oorlas. Publieke oorlas is teen die laat 19de eeu in die Suid-Afrikaanse regoorgeneem . Tussen die oorname van die remedie in die Suid-Afrikaanse reg en 1943 is die remedie van publieke oorlas toegepas in lyn met sy oorspronlike doelwitte, naamlik om optrede wat die gesondheid, veiligheid en moraliteit van die breë publiek in gedrang kon bring, te verhoed. Volgens sy oorspronklike doel reguleer publieke oorlas onredelike inmenging soos rook, geraas, geweld en obstruksie van paaie wat op publieke grond of „n publieke spasie ontstaan het. Die remedie van publieke oorlas is, in ‟n reeks sake gedurende die 1990‟s, deur privaat individue indirek gebruik om okkupeerders van informele nedersettings uit te sit. Sodoende het privaat individue die wetgewing wat spesiaal ontwerp is om uitsettings te reguleer vermy en in die proses nuwe behuisingsontwikkelinge ontwrig en gefrustreer, veral in gevalle waarvoor in grondhervormingsprogramme voorsiening gemaak word. Hierdie indirekte toepasing van publieke oorlas is ongrondwetlik omdat dit nie met artikel 25(1) van die Grondwet versoenbaar is nie. Die meerderheid van steurnisse wat gewoonlik met publieke oorlas geassosieer word, word tans deur wetgewing gereguleer. Aangesien die remedie nou hoofsaaklik in wetgewing vervat is, ontstaan die vraag of die leerstuk van publieke oorlas as „n gemeenregtelike remedie nog van enige nut is in die moderne Suid-Afrikaanse reg. vi Die slotsom, veral na die analise van twee sake in 2009 en 2010, was dat die publieke oorlas remedie slegs „n toekoms in Suid-Afrikaanse reg het, indien dit toegepas word in die afwesigheid van statutêre oorlas of enige ander wetgewing wat publieke oorlas oortredinge dek en waar dit nie as „n alternatiewe meganisme gebruik word om okkupeerders uit te sit nie. / National Research Fund

The state of California has one of the largest and most violent gang populations in the United States. Although there have been a variety of anti-gang measures and policies enacted by local and state governments, none have been more effective than the Civil Gang Injunction (CGI). This civil action prohibits certain street gangs, and their members, from participating in activities that would otherwise be considered lawful. In order to obtain an injunction a prosecutor must demonstrate to the court that the gang is engaged in ongoing criminal conduct and represents a public nuisance to a geographically defined area. When a neighborhood is under an injunction, not only is police presence in the area increased but officers are also given more freedom to investigate and apprehend gang members who are suspected to be in violation of the terms. As this thesis will argue, injunctions, when used correctly, have proven to be an effective weapon in diminishing the influence of territorial street gangs on community well-being. When used incorrectly, however, they often only provide a temporary fix to a long-lasting problem. They also have been known to contribute to an increase in crime in neighboring areas, an increased number of wrongful arrests, and in some cases they have promoted criminality amongst young people. To explore the efficacy of injunctions, this thesis will focus on three empirical studies that cover a period from 1993 to 2003, when the rates of gang-related violence were at an all-time high and injunctions became the primary tool for City and District Attorneys to combat the nuisance. Two of these studies argue that injunctions have a positive impact on violent crime statistics, whereas the third concludes that they do not. By comparing these conflicting pieces of quantitative evidence, this thesis aims to gauge the actual effect of injunctions on crime rates and weigh the perceived benefits of this measure against its unintended negative effects.

The impact of the law on the lives of homeless people in Queensland has, to date, remained largely unexplored by legal academics and researchers. This is despite the fact that homeless people experience a number of legal difficulties that seriously affect their lives. This thesis by published papers aims to make a significant and original contribution to filling this gap in the research evidence by presenting the results of analyses of the legal, theoretical and practical issues that arise in the context of homeless persons' interactions with the legal system in Queensland. Most notably, it is comprised of three pieces of empirical research which identify those areas of law that impact most on homeless people in Queensland and explore the consequences of the operation of these laws on their lives. In sum, this thesis examines the extent of the law's influence on the lives of homeless people in Queensland, and finds that the consequences of the law's operation on homeless people in Queensland are serious. The thesis first examines the effect on Queensland's homeless people of laws which regulate behaviour conducted in public space. The criminal offences of vagrancy, begging and public nuisance are analysed; their historical origins, the reasons for their retention on modern statute books, and arguments in favour of their repeal are discussed. The impact of 'public space law' on homeless people in Queensland is also explored through a survey of 30 homeless people residing in inner-city Brisbane. This part of the thesis concludes that public space law in Queensland results in breaches of homeless persons' human rights, as well as the contravention of rule of law principles. The thesis then explores the impact of the law on homeless persons' experiences of citizenship. Empirical research and theoretical analysis demonstrate that the application of various laws, particularly public space laws, social security laws and electoral laws, encroaches on homeless persons' citizenship rights. The thesis then reports on the results of a unique survey of Queensland's homelessness service providers. This survey is the most extensive piece of empirical research ever conducted on the extent to which various laws impact on homeless people. Respondents were asked to indicate which areas of law impact most adversely on their homeless clients. Based on the research findings outlined above, the hypothesis was that criminal law issues, particularly public space offences, would be proven to impact particularly adversely on homeless people in Queensland. Somewhat unexpectedly, the findings of the survey indicated that fines law, debt law and family law difficulties are those legal difficulties most often encountered by homeless people in Queensland. Difficulties produced by criminal laws, social security laws and electoral laws, while still generally relevant, rated less highly. However, the survey did demonstrate that experiences differ between sub-groups within the homeless population, for example Indigenous homeless people were reported to be most affected by criminal law issues, while young homeless people were reported to be most affected by social security law issues. Together, the five papers which comprise this thesis make an original and substantial contribution to knowledge by identifying empirically for the first time the various laws that have a significant impact on the lives of homeless people in Queensland, and analysing the consequences of this in terms of their effect on homeless persons' citizenship rights, human rights and rule of law entitlements.