Masters Degrees (Centre for Human Rights Law)
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Item Open Access The extent and scope of procedural fairness under legality review(University of the Free State, 2023) Sejaphala, Lehumo; Brand, DanieThe 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.Item Open Access 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, RitaThe 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.Item Open Access 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, JohnThis 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.Item Open Access 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.Item Open Access 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 ChiThis 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.Item Open Access Services provision is also the rights for lesbians, gays, bisexuals, transgender, intersex, and queer people(University of the Free State, 2022) Shabangu, Athalia Phindile; Kamga, Gerard E. K.There is a need for shelters for LGBTIQ+ people whose rights are violated either at home or those who are victims of crime in general. There are LGBTIQ+ people in all nine provinces of South Africa, but only one dedicated shelter provides services for them. The researcher assumes that there is discrimination against LGBTIQ+ people in terms of shelter services provision. Some of the LGBTIQ+ people get discriminated against and stigmatized because of their sexual orientation or gender identity. As such, they do not fully enjoy their universal human rights. Other LGBTIQ+ people are victimized in their homes, schools, and communities, which leads to them being vulnerable and needing safe spaces such as shelters for accommodation. According to the Department of Social Development,1 a shelter is a residential facility providing short-term intervention in a crisis situation. Shelters are expected to provide critical services to those undergoing high levels of trauma, including a safe place to stay and psycho-social support.2 The availability of shelter services is the human right of any LGBTIQ+ person. Human rights are the basic rights and freedoms that belong to every person globally, from birth until death. According to PEPUDA,3 failure to reasonably accommodate LGBTIQ+ people, or any other vulnerable groups, amount to unfair discrimination and inequality on, amongst others, the ground of gender. Globally, regional and national instruments throughout the world deal with discrimination, which is a human rights issue. These instruments include the Convention on the Elimination of All Forms of Discrimination against Women, the International Covenant on Civil and Political Rights and the Bill of Rights contained in the Constitution of the Republic of South Africa. The Bill of Rights makes provision for the protection of the rights of every South African. This research intended to investigate shelters in Pretoria and the surrounding area that accommodates LGBTIQ+ people.Item Open Access The constitutional imperatives for the development of artisanal and small-scale mining in South Africa(University of the Free State, 2020-01) Ndlazi, Sikelela; Pretorius, Jan L.; Gerber, Leonardus J.Since 1994, the South African artisanal and small-scale mining (“ASM”) sector has been a demarcation for the promotion of the economic participation of previously disadvantaged South Africans within the country’s broader economy. Various domestic policy documents refer to the ASM sector as one deserving of development and adequate regulation. However, to date, the sector still exists and functions on the fringes of the law. This fact has allowed for the under-development of the sector to persist and, out of such under-development, adverse ramifications, including the environmental degradation associated with illegal ASM, its occupational health and safety concerns and the acrimonious relationship between ASM and large-scale mining (“LSM”). It is such negative consequences of ASM that continue to thrive at the expense of the socio-economic and community-development potential of the sector. In light of the above, this study seeks to explore the theoretical framework upon which the development of the sector ought to be based. Such a developmental basis consists of the constitutional, legislative, domestic and international policy framework. Further, under the over-arching theme of constitutionally-responsible development of the South African ASM sector, recommendations are to be made to guide the manner in which the necessary development of the ASM sector ought to take shape.