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Socio-legal reflections on Zimbabwe’s Lithium Industry: the role of public participation in Resource Governance and Environmental Justice
(Academy of Science of South Africa, 2025) Mutlokwa, Hoitsimolimo; Okoloise, Chairman
Zimbabwe has one of the largest lithium deposits in Africa. As the world strives to decarbonise and to relinquish energy sources that produce harmful emissions, the demand for lithium is rising to astronomical levels. Zimbabwe's lithium is a prime target for the producers of lithium-ion batteries used in electric cars, smartphones, laptops, and solar panels for domestic use. However, Zimbabwe's law and mining policy need to include measures to ensure that citizens properly participate in and profit from its extractive activities, including the mining of lithium. Outdated mining legislation and past experience show that the exploitation of a resource can be a curse in Zimbabwe, as in the smuggling of diamonds and the sequestration of the wealth generated by gold mining to only a few individuals. Public participation in decision-making in the lithium industry is a scarce commodity, and it is generally expected that a repeat of the catastrophic circumstances of Zimbabwean gold and diamond mining is likely to be seen in the lithium industry. This article examines the social implications of the lack of effective regulation of Zimbabwe's lithium industry. It assesses Zimbabwe's current decision to ban raw lithium exports and answers the question whether this has positive social implications for communities that live near lithium deposits.ER -
Protecting the rights of children in conflict with the law in South Africa: the Law versus the Practice
(University of the Free State, 2024) Leeuw, Tembisa; Mubangizi, John
This study examines the protection of children's rights in conflict with the law in South Africa, highlighting the discrepancies between legal provisions and practical implementation. It acknowledges that children, defined as individuals under 18, possess varying degrees of cognitive maturity and are often influenced by their environments, which may lead to unlawful behaviour. Despite constitutional guarantees and international standards aimed at safeguarding their rights, significant challenges remain in their treatment within Child and Youth Care Centres (CYCCs). The research explores historical contexts, the evolution of child justice policies, and the conditions faced by children in detention, emphasising the need for humane treatment and rehabilitation. It investigates the roles of various stakeholders, including Child and Youth Care Workers (CYCWs), in ensuring that children's rights are honoured and their developmental needs are met. Through a critical analysis of existing frameworks and practices, this study aims to identify gaps and propose recommendations for enhancing the protection and rehabilitation of children in conflict with the law, ultimately advocating for a more rights-based approach in the South African legal system.
South Africa's population includes a significant number of children, many of whom encounter the law. The Constitution emphasises children's rights, particularly those in conflict with the law, but implementation remains a challenge. Historical context highlights the transition from punitive measures to a focus on rehabilitation. Despite constitutional protections, many face inadequate treatment in detention settings.
CYCCs aim to rehabilitate children awaiting trial or sentencing but often fall short in providing safe environments. Issues include overcrowding and inadequate psychological support, leading to further rights violations. CYCWs play a crucial role in supporting the development of children in care. Their responsibilities include providing emotional and psychological support, but challenges persist in their training and resources. The key legislative frameworks safeguarding children’s rights include the Child Justice Act and the Children's Act, which align with international human rights standards. However, gaps exist between legislation and practice, leading to continued human rights violations.
The extent and scope of procedural fairness under legality review
(University of the Free State, 2023) Sejaphala, Lehumo; Brand, Danie
The prevailing view in administrative law scholarship concerning the relationship between the 𝘗𝘳𝘰𝘮𝘰𝘵𝘪𝘰𝘯 𝘰𝘧 𝘈𝘥𝘮𝘪𝘯𝘪𝘴𝘵𝘳𝘢𝘵𝘪𝘷𝘦 𝘑𝘶𝘴𝘵𝘪𝘤𝘦 𝘈𝘤𝘵 (hereafter ‘PAJA’)¹ and the principle of legality over the last decade has been that these two mechanisms for review of public conduct should not be used interchangeably and that instead, they should be applied separately, within each of their scopes of application. In other words, the prevailing view maintains that PAJA and its grounds of review must be exhausted first before resort can be had to the principle of legality – which serves as a safety net to catch all exercises of public power which fall outside the purview of PAJA.² Indeed, this is not just the prevailing view but a constitutional injunction occasioned by amongst others, the principle of subsidiarity which serves to give impetus to the doctrine of the separation of powers.³ This notwithstanding, a thorough reading of administrative law cases since the enactment of PAJA shows that the courts have not maintained this constitutionally ordained PAJA and legality review distinction consistently. There are indeed cases in which our courts have imported procedural fairness (a separate ground of review under PAJA) into the legality review. However, it is still not clear as to when and under what circumstances a reviewing court will subject public conduct (not administrative in nature, and therefore not subject to PAJA), to procedural fairness as seemingly subsumed into the principle of legality. Against this backdrop, I ask in this dissertation what the unintended consequences of this prevailing approach have been. Second to that, I ask whether the prevailing view has not resulted in the development/broadening of legality as a ground for the review of ‘non-administrative’ public conduct. And most significantly, whether our courts have managed to develop a cogent substantive approach to the question of whether or not in a given case of legality review, procedural fairness should apply.
Protecting the rights of employees in South Africa during the COVID-19 pandemic: the role of national human rights institutions (NHRIs)
(University of the Free State, 2023) Boko, Esihle; Ozoemena, Rita
The relationship between employees and employers is built on mutual trust and both the employees and employers have rights that are outlined by common law and legislation. Workers' rights are outlined by South Africa’s Constitution as well as various acts that include the Labour Relations Act. The government established National Human Rights Institutions (NHRIs) so they could be the independent organisations responsible for ensuring that there is an integration of the protection of human rights. This study focused on whether the National Human Rights Institutions succeeded in protecting the rights of employees during the COVID-19 pandemic lockdown.
To achieve this the qualitative research methodology was applied. Secondary data was collected and analysed through the use of methods and techniques of an exploratory, descriptive, and contextual research design. The provisions of the legislation associated with the protection of employees’ rights such as the Bill of Rights, and the responsibilities of the NHRIs were analysed in the context of how they were practised during the lockdown. The focus was on whether the rights of workers were not compromised because of the sudden changes that were made by the government to protect its citizens from becoming sick or dying due to the Coronavirus.
The findings show that the rights of employees were compromised and violated in various ways including employers unilaterally changing work contracts, leading to a reduction in the salaries of workers. Some employees were also retrenched because they did not agree to the mandatory vaccination requirement. Others who provided essential services were not provided with the needed protective apparel, such as front-line health workers who performed community work with personal protection equipment.
This shows that NHRIs failed to ensure that the rights of employees were protected during the COVID-19 era. The recommendation is that there is a need for a nationwide collaboration led by the government and NHRIs to develop strategic plans on how this failure can be prevented in future, should South Africa be faced with another state of emergency.
A critical analysis of the human rights violations of detainees in South African police custody with specific reference to police brutality
(University of the Free State, 2019) Leeuw, Tembisa; Mubangizi, John
This study analyses the human rights violations of detainees in South African police custody. In so doing, the study focuses on police brutality. In explaining police brutality in custody, different scholars gave a common definition, namely that police brutality is the use of excessive force to cause physical, emotional, mental and deadly harm to a suspect held in custody. Police brutality is the legacy of apartheid from its formation as the Union of South Africa in 1910. The South African Police (SAP) then already adopted the features of a colonial military force, and members were socialized to use excessive force during arrest and to suspects held in custody.
A desk review was adopted to gather information from primary sources such as legal documents and secondary sources such as books, academic journals and newspaper articles on police brutality in holding cells. This process was guided by three research objectives: a) to explore the nature and causes of police brutality in South African holding cells; b) to examine the effects of police brutality in South African holding cells; c) to recommend remedial measures to mitigate police brutality in South African holding cells.
The findings of this study discovered that police brutality in custody is mostly caused by leadership failure and the non-reporting of cases of police brutality by the police administrators who are responsible for reporting these. In many cases, investigations favour the accused police officer. Police brutality is caused by ineffectual civil remedies. This means that if police officers are not held responsible for their brutality in holding cells they are more likely to persist with this behaviour. Passivity with regards to criminal prosecutions is another issue, as prosecutors often do not want to prosecute officers who usually help them with criminal cases.
In explaining victimisation in police custody, three learning theories are relevant. They are the social learning theory, the differential association theory, and the group socialisation theory. These state that police brutality in custody is learned through socialisation and integrating with other violent police officers. The study also makes use of the conflict theory and the routine activity theory to explain what motivates the violation of detainees’ rights in custody.
The study further examines the role of the Independent Police Investigative Directorate. In so doing, it analyses the IPID Act (1 of 2011) and its mandate and powers. Since its establishment, the number of cases of police brutality has decreased and more police officers have been held responsible for their misconduct. The study provides recommendations to help mitigate police brutality towards detainees in South Africa.
A Human Rights analysis of the Challenges in mental health services during COVID-19 in South Africa
(University of the Free State, 2022) Kgampe, Masechaba Evelyn; Durojaye, E.
In South Africa, COVID-19 prevention and mitigation efforts were unexpected and challenging, with the extended lockdown straining socio-economic activities. Marginalized groups and individuals are particularly vulnerable to unfavorable effects of the pandemic, such as human rights abuse. This study analyzes human rights within the challenges in mental health care during the COVID-19 pandemic and has primarily targeted limitations of individual freedoms to shield public mental health. The right to enjoy the appalling physical and mental health standards provides the state with a binding normative obligation for healthcare systems, broader social responses, and international solidarity. The International Covenant on Economic, Social, and Cultural Rights recognizes the right to health needs wherein governments take steps to prevent, treat and manage widespread pandemics, endemic activity, and other diseases and to ensure health services and attention in the event of sickness. The appropriate health needs are that health goods, services, and facilities are offered in adequate numbers; accessible on a financial, geographical, and non-discriminatory basis; acceptable, as well as culturally applicable and respectful of gender and medical ethics; and of excellent quality.
However, South Africa has imbalanced difficulties in ensuring the provision and accessibility of COVID-19-related health coverage, resulting in shortages in essential medical care, diagnostic tests, and personal protection instrumentation for health care and other front-line staff. In some provinces, self-discipline measures, structural adjustment programs, and user fees have rendered essential services inaccessible for a few vulnerable individuals.
This study emphasizes the need to uphold human rights and address the challenges in mental health services in South Africa during the pandemic. South Africa may embed a proactive psychosocial response to medical management and existing prevention strategies.
A critical analysis of the violation of the rights to adequate housing, health care, food, and social security of people living in informal settlements in South Africa with specific reference to human development
(University of the Free State, 2020) Moseli, Khothalang; De Man, Annelie; Ngang,Carol Chi
This mini-dissertation is an investigation into the violation of human rights to adequate housing, health care, food, and social security of people who live in informal settlements in South Africa. It explores their quality of life in informal settlements. The rights to have access to adequate housing, health care, food, and social security are enshrined in sections 26 and 27 of the constitution of the Republic of South Africa of 1996.
In order to observe the entitlement of these human rights, the South African government has, since 1994, embarked on legislation, policies, and programmes to improve access to adequate housing, health care, food, and social services among vulnerable and disadvantaged groups in South Africa. However, these efforts have not effectively addressed the challenges faced by informal dwellers in South Africa. Currently, the rights to adequate housing, health care, food, and social security of informal dwellers are being violated in South Africa. The Constitution and several international human rights instruments call for their realisation. However, compared to other rights such as freedom of speech, less effort has been made by the government and non-governmental establishments to fulfil these rights for the betterment of informal dwellers’ living conditions, well-being, and human development. The research question for this study is therefore: How can a rights-based approach to development (RBAD) contribute to the fulfilment of the rights to adequate housing, health care, food, and social services for informal dwellers in South Africa?
In order to respond to this question, a desktop analysis and a socio-legal approach were employed to gather information. This study is largely theory-driven; it relies on various sources of evidence namely, on primary and secondary literature, on conducted-research, and on official government instruments that speak to the state of informal settlements in South Africa. This process was guided by four research aims: a) to examine the obligations of the South African government to fulfil human rights; b) to explore the problems experienced by people living in informal settlements that are unique to them, including the factors that have an impact on the realisation of their rights; c) to examine the impact of the non-realisation of human rights on human development and well-being, and; d) to recommend remedial measures to mitigate the violation of the human rights of people who live in informal settlements in South Africa.
Informal settlements seem to defy the realisation of socio-economic rights. In their reports, various United Nations Special Rapporteurs present informal dwellers mostly as the victims of human rights violations. This study reveals that there are many barriers to the enjoyment of the rights to adequate housing, health care, food, and social security in informal settlements in South Africa. These mainly have to do with the living conditions of those who are poor, vulnerable, and marginalised. The study observes that unemployment, poverty, bad governance, and corruption are the main contributors to the plight of people who live in informal settlements in South Africa. To address the challenge of informal settlements and, consequently, to ensure that the state respects, protects, promotes, and fulfils the human rights of the poor and the marginalised, this study has observed the need for an RBAD in South Africa. It recommends attaching human rights principles, norms and standards to development processes in South Africa. These principles will improve the living conditions of isolated and disadvantaged groups and will translate into the realisation of human rights. The outcome of this study relates to those who are working actively for the promotion and realisation of human rights, especially for socio-economic rights in South Africa.
Global perspectives on modern slavery: a reflective narrative on John Wesley’s thoughts upon Slavery and Social Justice
(Noyam, 2025) Kimpinde, Mwansa Claude
This paper delves into the worldwide views on modern slavery, with a particular focus on the reflective narrative presented in John Wesley’s thoughts on slavery and social justice. Modern slavery remains a pressing issue in contemporary society, with millions of individuals subjected to exploitative and inhumane conditions. By examining Wesley’s thoughts on slavery and social justice by applying them to the context of modern slavery, this paper aimed to shed light on the importance of addressing this grave violation of human rights. Through a comparative analysis of historical perspectives and current global efforts to combat modern slavery, this paper sought to provide insights into the ongoing struggle for social justice and human dignity. The study outcomes underscored the continued significance of Wesley’s perspectives on slavery and social justice in addressing contemporary forms of exploitation and oppression. It is crucial to recognize that, while Wesley championed the equality of all individuals, he also demonstrated cultural biases and attitudes of superiority characteristic of his era in other discursive contexts, particularly in discussions surrounding human sin. In the context of today’s anti-racist movements, Wesley’s opposition to slavery should not be leveraged by his theological successors to assert a position of moral superiority. Instead, it should serve as an impetus to critically examine, across various contexts, what it genuinely means to be transformed into the image of a merciful and just God.
The design, implementation and evaluation of an HIV counselling skills programme for lay counsellors
(University of the Free State, 2020) Mmusi-Makhele, Lerato; du Plessis, E.; Nel, L.; Esterhuyse, K.
Lay counsellors provide the majority of public health with HIV counselling and testing services in sub-Saharan Africa, including South Africa. Although lay counsellors are not formally employed, these volunteers provide a variety of basic healthcare services both in facility and community-based programmes. Lay counsellors are not professionally trained, and challenges have been identified in their counselling skills and competence. The study aimed to develop, implement and evaluate an HIV counselling skills training programme for lay counsellors in the Mangaung Metropolitan Municipality in the Free State Province, South Africa.
An experimental approach through a concurrent triangulation mixed-method design was utilised. Using a pretest-posttest non-equivalent method, 107 lay counsellors were selected through multi-stage non-probability purposeful sampling. Structured interviews, focus group discussions, and the observation of counselling sessions were employed to collect quantitative and qualitative data. The UNAIDS Tools for evaluating Voluntary HIV counselling and testing and the Maslach Burnout Inventory were used to measure the variables in the study. Quantitatively, a cross-sectional, correlational, and criterion-group design was used, while thematic content analysis was used to analyse the qualitative data.
The results indicated that lay counsellors had inadequate counselling skills and displayed limited competence, especially in pre-HIV test counselling, TB and PMTCT interventions. These results indicate that lay counsellors found it difficult to manage sensitive situations with patients. However, the Mann-Whitney test compared the differences between the experimental and the control groups and indicated no statistical difference in HIV content-based elements. No statistical difference on the competence-based elements in pre- and post-intervention were found for the experimental group. In addition, the participants reported a significant level of emotional exhaustion and work and systemic challenges such as lack of support, supervision, formal employment opportunities, and limited time to conduct counselling and unsafe working environments.
However, the MANOVA showed no statistical difference in the emotional exhaustion subscale of the MBI amongst the experimental group.
The study indicates gaps in the execution of HIV counselling within HCT services, although the HIV counselling skills training programme was unable to address these discrepancies. The study did reveal systemic and work-related indicators that impact HIV counselling provided by lay counsellors. The need for further counselling training is an arguable one, which should allow for a longer time frame, evaluation and monitoring to meet the needs of HCT services. Future studies should consider longitudinal research, and given the implications of work-related conditions reported, studies can include systemic variables, service users and measures that would address these aspects. In practice, counselling skills and competence are reinforced through regular supervision and on-going training, and this should be standard. Also, reorganising recruitment practices and creating employment opportunities should be prioritised to promote the selection of suitable candidates as lay counsellors.
Subjective strands in the jurisprudence of the Constitutional Court and related implications for civil society
(University of the Free State, 2024) Matthee, Keith S. C.; de Freitas, Shaun A.
From 1994 up until now, the Constitutional Court has been making decisions which continue to reshape the moral landscape of South Africa. During this period, it has entered many of the spaces, whether private or public, of people living in South Africa as it continues to make decisions on profoundly moral issues. Included in this moral reshaping of South African society are subjective strands in the jurisprudence of justices of the Constitutional Court. Having said this, there is nothing novel regarding subjectivity in court judgments (and regarding the formulation and application of the law in general). How law decides on matters of moral importance differs from society to society and amongst various communities, and even between judges involved in the same case. American Realism and Critical Legal Studies (CLS) are good examples taken from the not-too-distant past, confirming the inextricable relationship between subjectivity and the courts.
This study does not purport to be novel in the sense of having discovered the absence of objectivity regarding law and its application, nor does this study delve into debates related to law against the background of universality or natural law thinking. What this study is, in essence, comprised of is an extraction from selected judgments of central subjective views emanating from the Constitutional Court. Bearing this in mind, the reader is reminded (or enlightened) of the fact that the South African Constitution is understood and applied in accordance with the subjective views of the justices who are tasked with the challenging and important task of protecting the plethora of interests in a highly plural society. But what is the added contribution to be made other than bringing to the fore the said subjective strands regarding views on what the Constitution is telling us beyond the written text, especially regarding the values and rights included in the Constitution? Since the advent of the Constitution, there have been several attestations emanating from civil society pointing to an acceptance of the understanding that the Constitutional Court justices are the exclusive mouthpieces of the Constitution. In this thesis, the focus is primarily on expressions stemming from the Church (as an integral part of civil society) that confirm this reliance on the Constitutional Court justices as being the exclusive mouthpieces of the Constitution. Therefore, in effect, the understanding is promoted that the gatekeepers of how the Constitution should be understood are the justices of the Constitutional Court.
This, in turn runs the risk of assisting in the limitation of a participatory (and activist) role of the Church and other religious communities, indeed of wider civil society, pertaining to what the moral vision for the country should be. In many instances, parts of civil society argue that it is for lawyers to extrapolate the value system they opine is reflected in the Constitution, as it is only they who have the necessary training, experience and expertise as lawyers. If civil society simply keeps deferring to the Constitutional Court on this issue, in effect, it is abdicating its participatory (and activist) role on profoundly moral matters such as the meaning of human life, marriage, punishment, the disciplining of children, adultery, abortion and many other matters which demand civil society’s input. It is contended that if civil society, and indeed the Constitutional Court itself, grasped the reality of the subjective nature of views emanating from that court, it would assist in clearing the path towards an improved engagement by civil society with the State (including the Constitutional Court), on important (and less important) moral matters. It is also argued that this awareness of the subjective nature of views emanating from the Constitutional Court is inextricably related to the teaching of law to our future jurists, leaders and members of civil society.