This thesis is primarily concerned with the question of personality in international law. In order to assessp ersonality the vehicles of the Palestinian situation and representation of Palestinians in the West Bank and Gaza Strip are used. Therefore at points in the study each dominates in order to further the overall thesis. The study looks beyond the jaded constitutive/declaratory debate regarding recognition and personality and examines recent state practice, which sheds further light on the issue. A flexible approach to personality is taken and it is asserted that the best description of the process of recognition and achievement of status for both emerging states and representative groups is that an entity's status can be variable: variable in an evolutionary sense, in relation to the range of responses which the international community may have and also in relation to status on the international stage. Thus an entity may operate with different degrees of status at any one point in time depending on with whom and what circumstances are in question. This theory is then examined in relation to the Palestinian situation. The progression of the Palestinian Liberation Organisation and the Palestinian Authority on the world stage is investigated through, inter alia, their relationships with other states and international organisations. The variability theory asserted above appears to be borne out in the Palestinian context which leads on to questions of what broader implications this may have for other areas of international law. Two subject areas are then discussed in relation to the implications of the theory of variable personality. First, the concept of responsibility which has traditionally been adopted in relation to states rather than other entities on the international stage. Second, the protection of the rights of those placed under the jurisdiction of an entity with variable levels of personality, noting that this is also an issue which is generally dealt with at a state level. In each examination the Palestinian situation is drawn upon to provide concrete examples of the possible problems which may arise for other areas of international law due to the theory of variable personality. Examples of ways in which those issues could be reconciled are also considered. Lastly, both subject areas provide further important conclusions in relation to the assertion that personality may be variable.

This dissertation poses the question whether the doctrine of Proprietary estoppel can provide the basis for recognising a range of rights in relation to the family home. This question also necessitates a consideration of the doctrine of constructive trusts and the acquistiton of rights under the Limitation Acts. The dissertation proceeds to consider whether the nature of the relationship between parties to a dispute concerning the family home constitutes a heavily determining factor in the outcome of that dispute. It will emerge that in practice the doctrine of propietory estoppel operates differently in respect of each of three broad categories of licence relationships:- i) <i>Licence granted by resident family member</i>. In this first category both parties are members of the same household who jointly occupy the property as their family home. In this context the term 'family' is used in a very broad sense. It includes not only relationships of blood and afinity but also all those relationships where there is interdependence and a common concern by the participants for each other's welfare. The shared values of the participants in these relationships and the meaning they attach to each other's conduct may well be similar to those shared values and meanings which exist between members of the family in its stricter legal sense. The concept of 'family' is as much a functional notion as a decscriptive term. This broader concept of the family is more akin to the term 'household'. ii) <i>Licence granted by non-resident family member</i> In the second category the licensor and licensee are members of the same family but do not share the same house. iii)<i>Licence granted by a stranger</i> In the third category the licensee and his family have been granted occupation rights by someone who is not a member of their family. Since the decision of the House of Lords in <i>Gissing</i> v <i>Gissing</i> it has generally been accepted that the elements necessary to found an implied trust (whether resulting or constructive) of the family home are limited in scope. The longstanding equitable doctrine of propietory estoppel has therefore been revitalised, in an attempt to fill the gap left by the decision in <i>Gissing</i>. The theory of Proprietary estoppel aims to avert the unconscionable outcome which would otherwise result where one party has been encouraged by the holder of a legal title to alter his position to his detriment in the expectation of some entitlement in the property concerned. This dissertation contains an analysis of the case law of England, Northern Ireland, the Republic of Ireland, Australia and New Zealand, for the purpose of considering which forms of unconscionable conduct in the familial context are sufficient to give rise to the equity of Proprietary estoppel. These jurisdictions have been selected because in each, Proprietary estoppel has been used as a means of protecting rights in the family home. Each of the selected jurisdictions has recognised the limitations of the doctrine of constructive trusts in achieving that end. Canadian case law is also analysed to illuminate the relationship between the doctrine of Proprietary estoppel and the doctrine of constructive trusts. It is noticeable that the Canadian courts have effectively ceased to use the doctrine of Proprietary estoppel in the family home context, having replaced the doctrine by a creative use of the constructive trust.

The systematic monitoring of citizens by the state in Peru was revealed in 2000, after the collapse of the second administration of ex-president Alberto Fujimori (1995-2000). Fujimori resigned in his last year in office, after a network of government espionage and corruption was revealed. This included video recordings of secret meetings and alleged communications surveillance conducted and managed by presidential advisor Vladimiro Montesinos, working with the National Intelligence Service (SIN). This systematic surveillance by the state resulted in the dissemination of private information, recordings and videos of public officials, journalists and many other influential people. These events sparked the beginning of the debate around the purpose of surveillance in Peru, and the violation of the right to private communications by state agencies and private entities – and what legislation could be developed to regulate this. This discussion is ongoing, with more cases of communications interception being revealed.

In this dissertation I argue that the notion of environmental justice is recognised by section 24 of the Constitution, forms part of our law, and could play a role in South African socio-economic rights litigation as a transformative tool. I assert that because environmental justice recognises the intrinsic links between the distribution of basic resources and the environments in which poor people continue to find themselves in post 1994 South Africa, it has the ability to enhance and strengthen the enforcement of socio-economic rights. Environmental justice can do so by, among other things, focussing the court‟s mind on questions of justice and equity in the context of previous unjust environmental decision-making. In chapter 1, I explore the origins of environmental justice as a conceptual framework and as a movement that first emerged in the United States, and was subsequently embraced in the early post-apartheid era in response to immense environmental injustices experienced by South Africa‟s poor black majority as a result of apartheid. I discuss how many of these injustices not only „linger on‟ in post 1994 South Africa, but have also arguably become more entrenched, representing a failure on the part of the hopeful environmental justice movement of the early post-apartheid era. I highlight some of the reasons for this failure, which include the fragmented nature of the environmental justice movement, changes in government policy in relation to environmental issues, and the inadequate implementation of environmental laws intended to ensure public participation. In spite of these set backs, I argue in chapter 2 that there remains room for environmental justice to play a role in transformative constitutionalism. I then demonstrate that, despite environmental justice having been incorporated into our law, it has failed to capture the imagination of lawyers engaged in socio-economic rights litigation. Sustainable development and human rights discourses have thus far been the dominant voices in socio-economic rights litigation, at the expense of environmental justice, and its transformative potential. In chapter 3, I analyse Mazibuko v City of Johannesburg, which concerned the right to free basic water under section 27 of the Constitution. In my analysis of Mazibuko, I align myself with those who criticise the court‟s approach as anti-transformative. I do so by demonstrating that the court ii „technicised‟, „personalised‟, „proceduralised‟ and so, „depoliticised‟ the applicants‟ challenge to the government‟s policy. In this way, the court endorsed the „commodification‟ of water, and a „neo-liberal paradigm‟ towards access to basic water. I point to how linking environmental justice to the right to access to basic water could have encouraged the court to adopt a more redistributive and transformative approach. Finally, in chapter 4, I conclude by considering the future role of environmental justice in socio-economic rights litigation to enhance the ability of the environmental right to challenge poverty and effect transformation in the lives of poor people in South Africa. / Dissertation (LLM)--University of Pretoria, 2014. / Public Law / Unrestricted

No abstract / Dissertation (LLM)--University of Pretoria, 2013. / Centre for Human Rights / unrestricted

Analysis of relationships between states and citizens has almost monopolised the Human Rights legal discourse. In my thesis, I start from the position that Human Rights is a philosophical and historical victory of humankind, whose application cannot be limited to dictating norms in traditional forms of governance; Human Rights primarily define the human being as an individual, as a group, as a societal entity. Therefore, when we discuss Human Rights we do not pursue what governing states 'ought' or 'ought not' to do, but how human beings 'should' endure their lives in a dignified manner; how they should be treated independently of who their acting opponent might be. The Internet, on the other hand, has evolved through the years into an uncharted virtual structure of uncounted online operations and services run by private commercial actors. Within this setting, where the online application platform performs as a land parallel and the private commercial host as the de facto ruler, online identity is mirrored into service accounts. Hence the human being‘s digital existence seems to be depending, to a large degree, on the private initiative – and will. Whilst exploring various relevant themes, the thesis revisits the issue of the application of Human Rights in private relationships through the lenses of online electronic communications and using the example of commercial online virtual worlds. According to my conclusions, a simple projection of the state/citizen model onto ISPs/users relationships does not give sufficient ground for contesting Human Rights within that context. What we need is to deconstruct predominant dogmas in modern Human Rights theory and legislation and to readjust our focus back on the human being and its universal manifestations.

LL.D. / This inquiry is about the derogation of human rights during states of emergency. International human rights law has blossomed since World War II. Over the years it has been understood that human rights can be limited or derogated (suspended) under certain circumstances. A set of standards has been developed through the different sources of international law to ensure that human rights abuses are avoided during states of emergency. Treaty law, as well as customary international law, provides definite standards that have to be adhered to during these circumstances. General principles of law recognised by “civilised” nations also contribute to the standard setting that must apply during states of emergency. The use of emergency powers during times of crisis is a world phenomenon. Human rights violations often occur in times of crisis when emergency powers are used. This has led to rich jurisprudence by the various international bodies that monitor, enforce and promote respect for human rights. All the sources of international law have contributed to ensuring that a prudent set of standards governs states of emergency. In this study these standards are set out and expounded upon. These standards are furthermore applied in three Southern African states. The history of states of emergency in these countries and the constitutional dispensations that govern states of emergency in each of these countries is placed under scrutiny and tested against the international standards that should apply. The picture that unfolds is not encouraging because there is not clear evidence that there is always respect for international law and the meticulous application of these standards. International and regional monitoring bodies have not always successfully discharged their obligations to promote human rights or to prevent human rights abuses during states of emergency. The main difficulty in the African Charter for Human and Peoples’ Rights is that it does not contain a derogation article, which forbids the abuse by the state of emergency instruments and curbs the abuse of power during states of emergency. The African Commission is plagued with difficulties, mainly pertaining to staff and resources. It often aspires to be “politically correct” in the face of state parties who are quick to rely on state sovereignty and thereby do not allow outsiders to monitor alleged human rights violations. The adoption of the Protocol to the African Charter on the establishment of an African Court is an important step in strengthening the African system for the protection of human rights. In Southern Africa, there is not a clear commitment to uphold and defend human rights through the relevant regional bodies – the correct statements are expressed in the treaty that formed the Southern African Development Community. There is however no authority to monitor or ensure compliance to ideals set out in the treaty. A route to overcome this difficulty is suggested, namely to negotiate a set of human rights standards in the region, without any legally binding effect initially but with strong persuasive and moral standing. This first step must provide a launching pad to ultimately have a Southern African Human Rights Treaty, with inter alia a tight derogation article as well as a treaty body with strong monitoring and enforcement powers. A regional commitment to uphold and respect human rights is a prerequisite to ensure that a human rights culture takes root in the service of stability and democracy in Southern Africa.

Doctor Legum - LLD / Taxation is fundamental for development in South Africa (SA), a developing country with an emerging economy in which taxation is essential to capacitate the government so that it can fulfil its mandate under the Constitution of the Republic of South Africa, 1996 (Constitution). This mandate includes bringing about socio-economic transformation, part of transformative constitutionalism, through progressively realising socio-economic rights. This dissertation examines the way in which tax administration may take place efficiently and effectively with due respect for taxpayers' rights. A clear link is shown between taxation, human rights and the South African government's responsibilities to attain its transformation targets. To facilitate this process, the Constitution creates a legal framework for the imposition of tax and for the equitable distribution of tax revenue among the three spheres of government. For historical, political and other reasons, South Africans generally, as happens elsewhere in the world, lack a strong culture of voluntary tax compliance. Wilful non-payment of tax is antithetical to the values of democracy, ubuntu and the rule of law. Tax non-compliance minimises revenue collected from taxation. This, in turn, hinders the attainment of transformation in all its facets. A pressing need exists for laws that, on the one hand, promote tax morality and, on the other, strengthen the South African Revenue Service (SARS) so that it can effectively administer SA's national tax system (or grid). To this end, the Tax Administration Act 28 of 2011 (TAA) is pivotal. It regulates tax administration, a part of public administration. Under the Constitution, SARS is obliged to execute its functions in a manner respectful of taxpayers' rights and that upholds the Constitution’s values and democratic principles. Consequently, the TAA must strike a fair balance between, on the one hand, protecting taxpayers' rights and, on the other, arming SARS with adequate powers with which it can effectively combat the mischief of tax non-compliance. This dissertation shows that, when viewed through the prism of s 36 of the Bill of Rights (BOR), the powers conferred on SARS by ss 45(1), (2), 63(1) and (4) of the TAA to conduct warrantless inspections and searches, as the case may be, limit taxpayers' rights to, inter alia, privacy. It concludes that, whilst ss 63(1) and (4) ought to pass muster, ss 45(1) and (2) are susceptible to a declaration of invalidity under s 172(1) of the Constitution.

Magister Legum - LLM / South Africa

Revolutions, demonstrations, and, elections have a wide range of political and social impacts on societies. In many instances, the repercussions of these movements cause significant and irrevocable transformations that affect the daily lives of those living within the community. As a native Iranian female artist, my works of art speak specifically to the women who, like me, have been affected by these radical changes. As such, I use my personal experience of the post-revolution and election era to create poignant and progressive art that reflects the sentiments of many modern, Iranian women.