Showing papers in "Potchefstroom Electronic Law Journal in 2012"

Culture, tradition, custom, law and gender equality

Abstract: Traditional cultural practices reflect the values and beliefs held by members of a community for periods often spanning generations. Every social grouping in the world has specific traditional cultural practices and beliefs, some of which are beneficial to all members, while others have become harmful to a specific group, such as women. These harmful traditional practices include early and forced marriages (Ukuthwala as practised currently), virginity testing, widow's rituals, 'u ku ngena' (levirate and sororate unions[1]), female genital mutilation[2] (FGM), breast sweeping/ironing, the primogeniture rule, practices such as 'cleansing' after male circumcision, and witch-hunting. [1] Levirate unions occur when the deceased's surviving male relative inherits the widow of the deceased. Sororate unions occur where the widower is inherited by the deceased wife's surviving female relative. The inherited widow or widower becomes the wife or husband to the surviving relative of the deceased. [2] FGM is not just the cutting of the clitoris; it includes disfigurement, and the changing of the form or elongation of the labia as practiced by Tsonga and Sotho communities.

Disability Discrimination and the Right of Disabled Persons to Access the Labour Market

Abstract: Inequality, discrimination and transformation remain the key challenges which most employers are faced with in the South African labour market. Key among such challenges has also been employers' ability to ensure that persons with disabilities access the labour market. In this paper I highlight employment discrimination experienced by persons with disabilities in South African workplaces, which often prohibits them from accessing employment opportunities. I argue that employers need to consider employing persons with disabilities and also reasonably to accommodate them within South African workplaces. I further illustrate efforts by the legislature to eradicate forms of unjustified discrimination against persons with disabilities through the enactment of the Employment Equity Act 55 of 1998. I argue that all of us need to understand how cultural, social, physical and other barriers continue to prevent persons with disabilities in South Africa from enjoying their constitutional rights to equality, freedom and human dignity, and further, that it is desirable that society at large and government work together towards eradicating barriers which prevent persons with disabilities from accessing the labour market.

Achieving "decent work" in South Africa?

Abstract: The fundamental goal of the International Labour Organisation is the achievement of decent and productive work for both women and men in conditions of freedom, equity, security and human dignity The South African government has pledged its commitment to the attainment of decent work and sustainable livelihoods for all workers and has undertaken to mainstream decent work imperatives into national development strategies The four strategic objectives of decent work as identified by the ILO are: i) the promotion of standards and rights at work, to ensure that worker's constitutionally protected rights to dignity, equality and fair labour practices, amongst others, are safeguarded by appropriate legal frameworks; (ii) the promotion of employment creation and income opportunities, with the goal being not just the creation of jobs but the creation of jobs of acceptable quality; (iii) the provision and improvement of social protection and social security, which are regarded as fundamental to the alleviation of poverty, inequality and the burden of care responsibilities; and (iv) the promotion of social dialogue and tripartism This article considers the progress made towards the attainment of these decent work objectives in South Africa, using five statistical indicators to measure such progress namely: (i) employment opportunities; (ii) adequate earnings and productive work; (iii) stability and security of work; (iv) social protection; and (v) social dialogue and workplace relations It concludes that high levels of unemployment and a weakened economy in South Africa have given rise to a growing informal sector and an increase in unacceptable working conditions and exploitation The rights of workers in the formal sector have not filtered down to those in the informal sector, who remains vulnerable and unrepresented Job creation initiatives have been undermined by the global recession and infrastructural shortcomings and ambitious governmental targets appear to be unachievable, with youth unemployment levels and gender inequalities remaining of grave concern Social protection programmes fail to provide adequate coverage to the majority of the economically active population Social dialogue processes and organisational structures fail to accommodate or represent the interests of the informal sector Until these problems are overcome, the article concludes, it remains unlikely that decent work imperatives will be attained KEYWORDS : ILO, decent work, sustainable livilihood, job creation, unemployment, gender equality

Sexual harassment in the education sector

Abstract: Education should safely shape the minds and attitudes of young adults and children, especially with the in loco parentis principle in mind. Young adults who have experienced sexual harassment in the very environment that should have protected them as learners suffer greatly from social problems and from emotional and academic strain. Victims often become future harassers themselves. Sexual harassment should be eradicated from the education sector in toto to ensure a safe learning environment. High incidences of harassment have been found among college students in America, while a very small percentage of such transgressions have been reported. Similar statistics in South African universities are not available, the problem is therefore managed in a void. The position in schools is more alarming. In South Africa it has been found that 30 per cent of girls are raped at school and that male learners and educators are the main culprits. Not only is the magnitude of this problem gravely underestimated, but the effect of sexual harassment on learners has also not been managed properly. The authors argue that the focus is on avoiding legal responsibility and accountability, rather than on being proactive. The historic invisibility of sexual harassment in education can be attributed to the wrongful silencing thereof.

African indigenous land rights in a private ownership paradigm

Abstract: It is often stated that indigenous law confers no property rights in land. Okoth-Ogenda reconceptualised indigenous land rights by debunking the myth that indigenous land rights systems are necessarily "communal" in nature, that "ownership" is collective and that the community as an entity makes collective decisions about the access and use of land. [1] He offers a different understanding of indigenous land rights systems by looking at the social order of communities that create "reciprocal rights and obligations that this binds together, and vests power in the community members over land". To determine who will be granted access to or exercise control over land and the resources, one needs to look at these rights and obligations and the performances that arise from them. This will leave only two distinct questions: who may have access to the land (and what type of access) [2] and who may control and manage the land resources on behalf of those who have access to it? [3] There is a link with this reconceptualisation and the discourse of the commons. Ostrom's classification of goods leads to a definition of the commons (or common pool of resources) as "a class of resources for which exclusion is difficult and joint use involves subtractablity". [4] The questions this article wishes to answer are: would it firstly be possible to classify the indigenous land rights system as a commons, and secondly would it provide a useful analytical framework in which to solve the problem of securing land tenure in South Africa?

South Africa - safe haven for human traffickers? Employing the arsenal of existing law to combat human trafficking

Abstract: Having ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, South Africa is obliged to adopt legislative measures that criminalise human trafficking and comply with other standards laid down in this international instrument. However, by mid-2011, South Africa had not enacted the required comprehensive counter-trafficking legislation. The question that now arises is if the absence of such anti-trafficking legislation poses an insurmountable obstacle to the prosecution of traffickers for trafficking-related activities. In asking this question the article examines the utilisation of existing crimes in order to prosecute and punish criminal activities committed during the human trafficking process. Firstly, a selection of existing common law and statutory crimes that may often be applicable to trafficking-related activities is mapped out. Secondly, transitional trafficking provisions in the Children's Act 38 of 2005 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are discussed. Finally, since the Prevention and Combating of Trafficking in Persons Bill B7 of 2010 will in all probability be enacted in the near future, the use of other criminal law provisions in human trafficking prosecutions, even after the passing of this bill into law, is reflected upon.

The obligation to provide free basic education in South Africa: an international law perspective

Abstract: In South Africa many learners are denied the right to basic education because of the levying of school fees and other educational charges, in spite of the international obligation imposed on government to provide free primary education. This article examines the exact nature and extent of this obligation by exploring the concept of "free" basic education. The applicable international instruments and their interpretation as well as the significance of the right to education as a central, facilitative right are examined in order to establish the content of the right to basic education and the legal obligations that ensue. Against this background, the implications of the South African Constitutional Court's approach to the realisation of socio-economic rights and the possibility of the establishment of a core minimum obligation are analysed. It is argued that learners in South Africa may come from different socio-economic backgrounds but as learners in the same public school domain and as equal bearers of their constitutional right to basic education all of them are entitled to the same type and quality of free basic education.

The Right to Dignity and Restorative Justice in Schools

Abstract: A retributive and punitive approach is normally adopted in dealing with misbehaviour in South African schools. Despite the legal abolition of corporal punishment, more than 50 percent of schools still administer it. Other forms of punishment generally applied are also punitive in nature. The right to dignity of all of the parties affected by misbehaviour in schools is considered in this analysis. The possibility of adopting restorative justice as an alternative disciplinary approach is examined as a way of protecting, promoting and restoring the dignity of the victims of such misbehaviour.

The role of SADC institutions in implementing SADC treaty provisions dealing with regional integration

Abstract: Without some level of institutionalisation or other means of enforcement, national commitment to regional trade integration is bound to face some challenges. Accordingly, transnational trade is obviously inhibited when the validity and enforcement of contracts, obligation and rules cannot be guaranteed beyond the term of office of an administration. Thus Member States' commitment to the work of institutions within a regional economic community like SADC is critical for the full implementation of the SADC Treaty and its Protocols. The Protocol on Trade has been hailed as the most important for integration in SADC. This paper will indicate that institutions are essential drivers of organisations and their role in regional integration is therefore very important. However under the current legal and institutional framework, the SADC regional integration agenda faces major challenges of implementation. SADC institutions are not capable of completely fulfilling their legal obligations, although in some instances the lack of fulfilment was clearly a result of the legal instruments themselves being incomplete and needing further reform.

The Impact of SADC Social Protection Instruments on the Setting Up of a Minimum Social Protection Floor in Southern African Countries

Abstract: The Southern African Development Community (SADC) was formed to promote the political, economic and social wellbeing of the region. Some of the social objectives of the SADC are the promotion of social development and the alleviation of poverty, the enhancement of the quality of life of the peoples of Southern Africa, and the provision of support to the socially disadvantaged. In order to achieve these objectives, SADC member states have concluded a Treaty and various social protection-related instruments which aim to ensure that everyone in the region is provided with basic minimum social protection. Although the formation of the SADC (and the conclusion of some of its social protection-related instruments) preceded both the minimum social protection floor concept and the Social Protection Floor Initiative, the Treaty and instruments can be seen as complying with the requirements of both the concept and the initiative within the region. This article analyses the extent to which the SADC social protection-related instruments fulfil a minimum social floor function at the SADC regional level. The positive and negative aspects of the SADC Treaty and social protection-related instruments in this regard are evaluated. In addition, the article reviews the impact of the SADC social protection-related instruments in the setting up of social protection programmes aimed at ensuring a minimum social protection floor in some of the SADC countries. The successes of such country initiatives and the challenges faced are discussed. This is then followed by some concluding observations.

The role of International sustainable development law principles in enabling effective renewable energy policy – a South African perspective.

Abstract: It is universally accepted that renewable energy is an important contributing factor towards the promotion of sustainable development. The implementation of renewable energy needs to be regulated in an effective manner which in turn necessitates the formulation of law and policy geared towards sustainable development. Recent policy developments in South Africa propose to facilitate the promotion of sustainable development through the implementation of renewable energy, among others. In terms of existing energy policy in South-Africa, the interconnectivity of renewable energy and sustainable development is evident. Most notably, the White Paper on Renewable Energy of 2003 promotes increased access to affordable renewable energy in order to contribute to sustainable development. Moreover, the 2008 first review of the National Energy Efficiency Strategy of the Republic of South-Africa of 2005 states that in order for the country’s renewable energy policy to be considered sustainable, it needs to facilitate development in the social, economic and environmental spheres. Notwithstanding, attaining the goal of sustainable development depends on whether all its effecting principles are catered for in the policy developments. Accordingly, in order to ascertain whether South-African law and policy can successfully facilitate/enable sustainable development via the implementation of renewable energy, a specific methodology is proposed. In terms of the New Delhi Declaration of 2002 there are 7 principles of international law effecting sustainable development. These principles will be used as criteria in a principled assessment of South-African renewable energy law and policy in order to establish whether the goal of promoting sustainable development would be effected through the national policy developments.

Decentralisation in Africa: a critical review of Uganda's experience

Abstract: Since the rise to power of the Movement government under the leadership of Yoweri Museveni in 1986, Uganda has largely been show-cased as an emerging democracy on the continent. Among other things, Museveni's regime has been acclaimed for the restoration of periodic national elections, the making of the Constitution and the overall promotion of democratic governance, most especially through the adoption of a decentralised system with a commendable institutional and legal framework. Decentralisation is believed to promote service delivery at the local level, accountability for government resources by local leaders, and the involvement of the masses in local planning and the implementation of government programmes. It is now over twenty years since decentralisation was adopted as a system of government but the quality of service delivery and the accountability for government resources at the local level remains just as deplorable as the extent to which the masses are involved in the planning and implementation of government programmes in their localities. This paper examines the challenges that inhibit the realisation of the noble objectives of decentralisation, notwithstanding the apparently impressive institutional and legal framework.

Challenges confronting health care workers in government's ARV rollout: rights and responsibilities

Abstract: South Africa is renowned for having a progressive Constitution with strong protection of human rights, including protection for persons using the public health system. While significant recent discourse and jurisprudence have focused on the rights of patients, the situation and rights of providers of health care services have not been adequately ventilated. This paper attempts to foreground the position of the human resources personnel located at the centre of the roll-out of the government's ambitious programme of anti-retroviral (ARV) therapy. The HIV/AIDS epidemic represents a major public health crisis in our country and, inasmuch as various critical policies and programmes have been devised in response, the key to a successful outcome lies in the hands of the health care professionals tasked with implementing such strategies. Often pilloried by the public, our health care workers (HCWs) face an almost Herculean task of turning the tide on the epidemic. Unless the rights of HCWs are recognised and their needs adequately addressed, the best laid plans of government will be at risk. This contribution attempts to identify and analyse the critical challenges confronting HCWs at the coalface of the HIV/AIDS treatment programme, in particular the extent to which their own rights are under threat, and offers recommendations to remedy the situation in order to ensure the successful realisation of the ARV rollout. KEYWORDS: Health care, anti-retroviral therapy, HIV/AIDS

Addressing the spectre of cyber terrorism: a comparative perspective

Abstract: This article looks at the definition of cyber terrorism and terrorist use of the Internet. The article evaluates cyber terrorist threats facing countries such as the United States of America, the United Kingdom, India and South Africa. The article also examines measures introduced by the respective governments in these countries to counteract cyber terrorist threats. Finally, the article will propose a way forward to counteract such possible threats in the future. The face of terrorism is changing. The convergence of the physical and virtual worlds has resulted in the creation of a “new threat” called cyber terrorism. Cyber terrorism is one of the recognised cyber crimes. The absence of suitable legal frameworks to address cyber terrorism at national and regional levels, the lack of adequate safeguards, the lack of cyber security strategies and the pre-occupation of countries with internal factors have all contributed to the creation of an environment that can be easily infiltrated by cyber terrorists. The horrific events of 9/11 provided the impetus for many countries to introduce antiterrorist legislation. The United States of America, United Kingdom, India and South Africa have introduced legislation to address the threat of cyber terrorism. KEYWORDS: Cyber space, cyber terrorists, cyber crime, cyber terrorism, hacktivism; legislation, international legislation; anti-terrorist legislation, cyber security, computer networks, critical infrastructure; United States of America, United Kingdom, India, South Africa.

"child divorce": a break from parental responsibilities and rights due to the traditional socio-cultural practices and beliefs of the parents

Abstract: In a recent ground-breaking case the South African courts were for the first time requested to use their discretion to interfere in the parent-child relationship due to the traditional socio-cultural beliefs of the parents. In what has been described as "every parent's nightmare; the fancy of many teenagers", a 16 year-old schoolgirl from Milerton in the Western Cape asked to be "freed" from her parents to live semi-independently from them because of her unhappiness with the conservative manner in which her parents treated her. After considering the matter the judge assigned to the case granted her request to live semi-independently with a school friend and her family (called by the judge the host family) until she reaches the age of 18 (her majority). Her parents were accorded permission to have limited contact with her. This case represents an example of the difficulties involved when balancing the rights of a teenager against those of the parents in matters of socio-cultural practice and belief. In a multi-cultural society such as South Africa the case raises numerous serious questions for other families. For instance, what standards will a court use to determine if parents are too conservative in bringing up their children and what factors will be taken into account? How much freedom and autonomy should children be given? How will courts prevent children from misusing the system just to get what their friends have, and - the ultimate question - are the rights of children superior to the traditional rights of parents in matters of socio-cultural practice, with specific reference to their upbringing? In this context it is the aim of this contribution to focus primarily on the questions asked above. Possible solutions for striking a balance between the rights of children and their parents are explored. The submission is made that the best interests principle is still the most important factor to be taken into account when balancing or weighing competing rights and interests concerning children. The principle of the best interests of the child, the founding principle of children's rights, however, is anchored in the family, and any break between the two should be carefully considered. It is concluded that in an attempt to resolve disputes between parents and their children the relevant provisions of the Constitution and the Children's Act must be considered and must be balanced and tested in relation to each other for constitutional consistency and compliance. It is also submitted that caution should be taken by the legislative framework not to encourage children to break the parent-child relationship on a mere whim, as an overemphasis of children's rights might result in the dilution of the sense of the value of the family in society. KEYWORDS: "Child divorce"; parental responsibilities and rights; traditional socio-cultural practices and the beliefs of parents; best interests of the child' children's rights' conflict of rights within the family; interference with the parent-child relationship.

South African Private Security Contractors Active in Armed Conflicts: Citizenship, Prosecution and the Right to Work

Abstract: South Africa has adopted two pieces of legislation since 1998 aimed at restricting one of the fastest growing sectors of the global economy: the private security industry. Not only is this legislation completely unique, but it appears wholly at odds with international opinion. In this article we place private security contractors (PSCs) under the microscope of international law, exploring the role they play in armed conflicts, and the status afforded them by international humanitarian law (IHL). We address the issue of prohibited mercenarism, questioning whether PSCs should be categorised as mercenaries. We then shift our focus to the South African legislation and discuss the ambit of its application as compared with international law obligations to outlaw mercenaries. We discuss the likelihood of successful prosecution of PSCs, and the potential penalties that PSCs might face in terms of the South African legislation. Lastly we consider the constitutional challenges which might emerge as this legislation, and a proposed amendment to the South African Citizenship Act threaten the constitutionally protected rights of South African PSCs to practise a profession and enjoy citizenship.

The use of a therapeutic jurisprudence approach to the teaching and learning of law to a new generation of law students in South Africa

Abstract: In rapidly changing social, economic and intellectual environments it is imperative that teaching and learning should be transformed from being primarily concerned with the transmission of knowledge (learning about) to being primarily concerned with the practices of a knowledge domain (learning to be). Law lecturers are faced with a new generation of law students, many of whom may be the first in their families to enter university, and one of the important challenges that we face, when educating law students, is how to enable these students to take their place in a very important profession. To meet this challenge it is necessary to instill skills that will be beneficial to the profession, future clients and the community as a whole. We at the University of Johannesburg are endeavouring to do so through embracing a therapeutic jurisprudence approach that focuses on the well-being of the student, the client and the community. The integration of therapeutic jurisprudence throughout the law student's studies, starting with orientation and continuing through to the final-year clinical experience, will enhance the therapeutic outcomes for all of the parties involved. A therapeutic jurisprudence approach, combined with appropriate teaching and learning methods, will enhance the student's interpersonal skills and writing and reading skills. The teaching methods invoked include role-play to transform formal knowledge into living knowledge, thereby stimulating students' natural practical curiosity and creating a learning environment that supports collaboration and encourages students to act purposefully in such an environment. This article discusses the teaching of first-generation students and how to overcome the existing social, cultural, economic and linguistic barriers by using a therapeutic jurisprudence approach, while upholding the values that should guide legal practice, such as integrity and respect for diversity and human dignity. The constitutional imperative of access to justice for all underlines the importance for law teachers of incorporating therapeutic jurisprudence in their teaching methods. In South Africa, law lecturers face many challenges in teaching law students and first-generation students. Passionate teachers will produce passionate students and realise that they have the power to transform thoughts, policies and lives. Students should be reminded that law is not just about financial rewards, but the ultimate reward of contributing to the betterment of society. The legal profession expects us to produce a well-rounded graduate for entry into the profession. This necessitates that our teaching methods be appropriate to prepare the student for an entry level of competence for the legal profession. Therapeutic jurisprudence creates the opportunity for the lecturer not only to equip the student with the skills required by the profession but to implement teaching methods that will prove to be beneficial for all of the role-players involved. The honing of skills such as legal writing and oral advocacy from the first year of study creates the opportunity for the students to develop to their full potential. In order to support a meaningful, integrated teaching approach, the development of skills is expanded on during each year of study and can prove beneficial to all role-players during clinical education, where the student has the opportunity to apply the acquired skills in real-life situations. The impact of a therapeutic jurisprudence on the development of legal skills can now be measured through the student's ability to focus on the well-being of the client and the community.

The Application of Section 8(3) of the Constitution in the Development of Customary Law Values in South Africa's New Constitutional Dispensation

Abstract: The constitutional recognition of customary law alongside common law in the Constitution of the Republic of South Africa, 1996 is highly commendable. It also raises the question of whether or not the recognition was undertaken out of genuine respect for customary law or merely forgotten in section 8(3) of the Constitution. It is argued that the exclusion of customary law from the provision of the section is nothing more than the advancement of the dominant status enjoyed by common law, as was the case before the dawn of democracy. This argument is limited to the application of section 8(3) and the jurisprudence of the Constitutional Court, without focusing on the shortcomings of the latter in relation to the remedies provided in the resolution of disputes arising from customary law.

The Right of Child Victims of Armed Conflict to Reintegration and Recovery

Abstract: Article 39 of the Convention on the Rights of the Child provides for the right to recovery and reintegration of child victims of armed conflict. In this publication an explanation is tendered of when children are considered to be victims of armed conflict. Specific reference is made to the question of whether or not a former child soldier may be viewed as such a child victim. In addition the question is addressed of how a monist or dualist approach in terms of which treaty law is incorporated into municipal law influences the rights of child victims in terms of article 39 of the Convention of the Rights of the Child . Thirdly, article 39 is discussed against the background of the international human rights instrument, the Convention on the Rights of the Child . KEYWORDS: Convention on the Rights of the Child; child victims; armed conflict

A South African perspective on mutual legal assistance and extradition in a globalized world

Abstract: This contribution focuses on the modalities of mutual legal assistance and extradition from a South African perspective. The question is posed whether South Africa has succeeded to establish the required framework as a fully fledged member of the international community to make a positive contribution in the fields of mutual legal assistance and extradition subsequent to its international political isolation during the apartheid era. Although the international community derives substantial benefit from a borderless global world, it has as a result also to deal with the negative impact of globalization on international crime. Physical and/or electronic crimes are increasingly committed across borders and may be described as borderless, but law enforcement (combating, investigation and prosecution of crime) is still very much confined to the borders of a state. Criminal networks have taken advantage of the opportunities resulting from the dramatic changes in world politics, business, technology, communications and the explosion in international travel and effectively utilize these opportunities to avoid and hamper law enforcement investigations. As a sovereign state has control over its own territory it also implies that states should not interfere with each other’s domestic affairs. The correct and acceptable procedure would be for a state (requesting state) to apply to another state (requested state) for co-operation in the form of mutual legal assistance regarding the gathering of evidence and/or extradition of the perpetrator. Co-operation between states are governed by public international law between the requesting and requested state and the domestic law of the requested state. The South African legislature has increasingly provided for extraterritorial jurisdiction of South African courts in respect of organized crime and terrorism. It does however appear that existing criminal justice responses are experiencing challenges to meet the demands of sophisticated international criminal conduct. Mutual legal assistance and extradition provisions may show that the world is becoming smaller for fugitives and criminals, but the processes are far from expeditious and seamless. An overview of the South African law pertaining to mutual legal assistance and extradition indicates that the South African legislative framework and policies as well as international treaties make sufficient provision to render international assistance in respect of mutual legal assistance and extradition. The role of the courts in upholding the rule of law and protecting the constitutionally enshrined bill of rights, is indicative of the important function that the judiciary fulfills in this regard. It is important that extradition is not only seen as the function of the executive as it also involves the judiciary. It appears that South Africa has displayed the necessary commitment to normalize its international position since 1994 and to fulfill its obligations in a globalized world by reaching across borders in an attempt to address international criminal conduct.

The Implications of federalism and decentralisation on socio-economic conditions in Ethiopia

Abstract: This paper analyses impacts of the federal system and the decentralisation of functions to the district level on Ethiopia's socio-economic development. Firstly we will highlight the principles of the Ethiopian federal system as well as those of the 2001/2002 decentralisation process. Secondly we will show how the decentralisation has impacted on two of the decentralised sectors, health and education, by comparing pre-federal, pre- and post-decentralisation data.In both cases an overall increase in allocated budgets and an increase in the scale of the services offered since decentralisation started in 2001 has been found. Studies also show that the increase in services is not homogenous across regional states. Within the four larger regions, strongly disadvantaged woredas at the outset of the decentralisation process have profited most, which shows that the constitutional imperative of equal access to services is being implemented. Some of the regions where decentralisation was started later have still not caught up with the other regions, a phenomenon which is mostly due to capacity deficits.The article concludes that decentralisation in combination with consistent development policies has led to an overall improvement in service delivery, while some challenges regarding quality and equity still need to be addressed.

Human rights that influence the mentally ill patient in South African medical law: a discussion of sections 9; 27; 30 and 31 of the Constitution

Abstract: The personalised nature of mental illness obscures from general view the intolerable burden of private and public distress that people with serious mental illness carry. Invariably the mentally ill person encounters rejection and humiliation that are in some way tantamount to a "second illness." The combination either disrupts or puts beyond reach the usual personal and social life stages of marriage, family life, raising children, sexual relationships, the choice of treatment, affordable housing, transportation, education and gainful employment. As a result of their lack of financial and social support and their experience of rejection from society, persons with mental illness tend to neglect themselves and their diet, and frequently delay seeking treatment. Against this background, this contribution critically focuses on the human rights that influence the mentally ill patient in South African medical law. Specific attention is paid to the relevance and meaning of sections 9 (the equality clause), 27 (access to health care services), 30 and 31 (language, culture and religion) of the Constitution of the Republic of South Africa, 1996.

The methodology used to interpret customary land tenure

Abstract: Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure. Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case.

Realising Equality in Access to HIV Treatment for Vulnerable and Marginalised Groups in Africa

Abstract: This article examines the relevance of the concept of equality in improving access to HIV treatment for vulnerable and marginalised groups in Africa. The article argues that though modest achievements have been made in expanding access to HIV treatment for those in need in Africa, this expansion has concentrated on the general population with little focus on the needs of vulnerable and marginalised groups in society, especially children and sex workers. It further argues that applying the notion of equality to HIV treatment is crucial to alleviating the impact of the epidemic on vulnerable and disadvantaged groups. In conclusion, it is argued that if the aim of realising universal access to treatment for all by 2015 is to be achieved, it is imperative to ensure equal access to HIV treatment for disadvantaged groups such as children and sex workers.

Unisa v Reynhardt [2010] 12 BLLR 1272 (LAC): Does Affirmative Action have a Lifecycle?

Abstract: The Employment Equity Act (EEA) was enacted to achieve equity in the workplace by prohibiting unfair discrimination and by requiring the implementation of affirmative action measures to ensure the adequate representation of designated groups. To ensure compliance with the EEA a designated employer must ensure that it formulates an affirmative action policy within which employment equity targets are stipulated and met. One of the on-going debates around affirmative action is whether it has a life-span. One school of thought argues that affirmative action requires a legislated sunset clause, in which considerations of race, gender and disability will no longer be implemented by employers, instead of which each employer will look to employ a candidate who is suitably qualified for the vacant post. The other school of thought argues that the need for affirmative action is two-fold: to redress past inequalities, but also to deal with existing inequalities within society. Having a sunset clause this would negate the aim of affirmative action to deal effectively with both kinds of inequalities and also the creation of a representative workforce. In the case of UNISA v Reynhardt it was held that once an employer has reached his employment equity targets it is no longer justifiable for it to apply affirmative action, but that the principle to be applied is that the most suitably qualified candidate is to be appointed. The non-application of affirmative action is subject to an employer’s commitment to meeting employment equity targets and a recognition by the employer that once these targets are reached they must be maintained within the organisation. Consequently, once a disparity exists, affirmative action must again be applied, resulting in the imputation of a distinct lifecycle to affirmative action. Failure on the part of the employer to do this would have the potential of creating reverse discrimination against employees who are not the beneficiaries of affirmative action. KEYWORDS: Affirmative action; employment equity; designated employer; discrimination

Religious and cultural dress at school: a comparative perspective

Abstract: This article investigates and compares the different approaches towards the dress code of learners[1] in South Africa and the United States of America (US), as the US mainly base litigation concerning school dress code on their freedom of speech/expression clause, while similar South African court cases focus more on religious and cultural freedom. In South Africa, school principals and School Governing Bodies are in dire need of clear guidelines on how to respect and honour the constitutionally entrenched right to all of the different religions and cultures. The crisis of values in education arises from the disparity between the value system espoused by the school and the community, and that expressed in the Constitution of the Republic of South Africa, which guarantees learners' fundamental rights, including those of freedom of religion, culture, expression and human dignity. On the one hand, the South African Schools Act requires of School Governing Bodies to develop and implement a Code of Conduct for learners, and on the other, that they strictly adhere to the Constitution of the country when drawing up their dress codes. The right of a religious group to practise its religion or of a cultural group to respect and sustain its culture must be consistent with the provisions of the Bill of Rights (which is entrenched in the Constitution) and this implies that other rights may not infringe on the right to freedom of religion and culture. In the US, although there is no legislation that protects learners' freedom of religion and culture at schools, their First Amendment guides the way. Their Supreme Court respects the religious values of all citizens provided that they are manifested off public school premises. While we acknowledge the existence of religious and cultural diversity at South African schools, this paper focuses on the tension among and on the existence of different approaches towards the human rights of learners from different religious and cultural backgrounds in respect of dress codes. The terms learner/s and student/s are used interchangeably in the article, since South Africa uses the one and the US uses the other to indicate school-going persons.

Forceful arrests: an overview of section 49 of the Criminal Procedure Act 51 of 1977 and its recent amendments

Abstract: The debate concerning the use of violence by the police force is an endless one. Section 49 of the Criminal Procedure Act 51 of 1977 serves as a framework for the use of violence by police officers during arrests in South Africa. While some hold the opinion that the powers of the police in this respect should be restricted, others see the 2003 redefined section 49 as a legislative guarantee of a suspect’s right to flee. Against this background this article has as its focus a critical discussion of the historical development of section 49 as well as the recent amendments of the same. The current legal position in South Africa is also compared with that in the United States of America as well as in the United Kingdom. Finally, certain conclusions and recommendations are made in order to enhance more favourable regulation of the employment of force in effecting arrests.

Public access to private land in Scotland

Abstract: This article attempts to understand the radical reform of Scottish land law in its provision for a general right of public access to private land introduced in 2003 as part of land reform legislation, an important aspect of the initial agenda of the Scottish Parliament revived in 1999. The right is to recreational access for a limited period and the right to cross land. Access can be taken only on foot or by horse or bicycle. As a starting point clarification of the misunderstood pre-reform position is attempted. The essential point is that Scots common law does not give civil damages for a simple act of trespass (as English law does) but only a right to obtain removal of the trespasser. Under the reforms the longstanding Scottish position of landowners allowing walkers access to the hills and mountains becomes a legal right. A critical aspect of the new right is that it is one of responsible access; provided a landowner co-operates with the spirit and system of the Act access can be denied on the basis that it is not being exercised responsibly. But the onus is on the landowner to show that the exercise of the right is not responsible. Although the right applies to all land a general exception protects the privacy of a domestic dwelling. Early case law suggests that the scope of this limit depends upon particular circumstances although reasonable 'garden ground' is likely to be protected. There are various particular limits such as school land. Compliance with the protection of property under the European Convention on Human Rights is discussed. The article emphasises the latitude, open to nations, for limitations to the right of ownership in land in the public interest. The extent of the Scottish access inroad illustrates this. This leads to the conclusion that 'land governance' – the subject of the Potchefstroom Conference at which the paper was initially presented – largely remains a matter for domestic law; the lex situs concept is alive and well.

The Road Accident Fund and serious injuries: the narrative test.

Abstract: The Road Accident Fund Amendment Act 19 of 2005 came into effect on 1 August 2008. This Act limits the Road Accident Fund’s liability for compensation in respect of claims for non-pecuniary loss to instances where a “serious injury” has been sustained. A medical practitioner has to determine whether or not the claimant has suffered a serious injury by undertaking an assessment prescribed in the Regulations to the Act. The practitioner has to complete a RAF 4 report. In doing so the practitioner must assess the injury in terms of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (6th ed). If the injury is considered to have resulted in less than 30 per cent of the whole person impairment the medical practitioner should apply the narrative test. The article focuses on the narrative test but also discusses reasons why the regulations do not fulfil the requirements of the Act; reasons why the Guides is not adequate to the task; the impact of the circumstances of an injured person on disability; problems with the existing wording of the narrative test; shortcomings on the RAf 4 form; the administrative process as well as the appeal tribunals.

Gesondheidsorg vir Kinders: Voldoen Suid-Afrikaanse Wetgewing Aan die Land se Verpligtinge Ingevolge die Konvensie Oor die Regte van die Kind en die Grondwet?

Abstract: Included in the Convention on the Rights of the Child, 1989 (UN Children's Convention) is the right of children to the highest attainable standard of health. In terms of article 4 of the UN Children's Convention, in implementing the UN Children's Convention state parties must "undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention". South Africa showed its commitment to protecting and promoting children's health when it ratified the UN Children's Convention and subsequently adopted the Constitution of the Republic of South Africa, 1996, which includes provisions guaranteeing the health rights of children. South Africa also showed commitment to giving legislative effect to the protection and promotion of children's health by promulgating the National Health Act 61 of 2003, the Children's Act 38 of 2005 and the Mental Health Care Act 17 of 2002. The article evaluates existing policy and legislation affecting child health in order to assess how well South African legislation addresses the issue of children's healthcare rights and whether or not it complies with its international law and constitutional obligations in this regard. The article concludes that although much legislation exists, none provides comprehensively for children's healthcare rights, and there are many gaps in existing legislation. Most importantly, there is no reference to the core minimum requirements for the state in providing for the health of children, particularly in the way of healthcare services and nutrition. Further, there is a complete lack of legislation which protects the health needs of children with disabilities. In order to ensure that the health rights of children are protected and promoted, we propose more comprehensive legislative protection.