Doctoral Degrees (Centre for Human Rights Law)
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Item Open Access 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, JohnThis 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.Item Open Access To remain(University of the Free State, 2022) Mhlanga, Lindani; Brand, J. F. D.An undeniable inroad made into the regulation of property ownership has been the requirement that evictions may only take place with the permission of a court of law. In the South African context, this requirement has been further augmented by the “just and equitable” measure. This means that not only are evictions only allowed on the basis of a court order, and but also only to the extent that a court has exercised a “just and equitable” discretion. The exercise of the just and equitable discretion has resulted in three distinct types of eviction orders. The first of these orders are those instances in which the courts grant an eviction application and then suspend the order, enabling unlawful occupiers to continue living on the land/property while the State looks for alternative land to resettle the occupiers. The second, are instances in which a court grants an eviction but, for whatever reason, enforcement becomes impracticable, resulting in unlawful occupants remaining on private property that belongs to someone else. The third type of orders are those instances where a court denies an eviction application, enabling unlawful occupiers to indefinitely remain on land that belongs to someone else. In this thesis I look into the fact of remaining as a consequence of the third type of order. The effect of the court decision not to grant the eviction order results in the practical situation of the unlawful occupier remaining on such land. The unlawful occupier remains on land belonging to another notwithstanding the fact there is no countervailing right to do so. While the intervention to bring evictions under the ambit of justness and equitability more so in an unequal and deprived society such as South Africa is laudable, the failure of the courts to address the legality and tenure security posed by the eviction order not to evict despite unlawfulness of occupation having been established negates the good intention. In this regard, I contend that hesitancy to address the legitimacy and tenure security of this identified fact of remaining has to do with the structure and approach to the law, which supports indifference and detachment. This indifference and detachment minimise the law's (constricted) inherent capacity to remedy the asserted problem of tenure insecurity.