Masters Degrees (Public Law)

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    Restoring justice : examining the use of restorative justice sentencing practices in cases of gender-based violence offences
    (Stellenbosch : Stellenbosch University, 2023-03) Sydenham, Sarah; Madonsela, Thuli; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH SUMMARY : Gender-based violence (“GBV”) has reached pandemic proportions in South Africa and poses a direct threat to the human rights of every individual it impacts.1 This thesis sets out the potential restorative justice has to restore the human dignity of GBV survivors. The restoration of human dignity in response to crime is shown in this thesis to be an integral part of the transformative constitutional vision. This thesis explores the potential restorative justice has to restore the human dignity of GBV survivors in court. This thesis outlines the theory of restorative justice as conceptualised in Western academic literature as well as in traditional African legal culture. The link between restorative justice and the value of ubuntu is explored and an understanding of restorative justice theory grounded in the value of ubuntu is established. Some of the strongest challenges to the use of restorative justice in cases of GBV come from certain feminist legal theorists. These challenges must be explored to enable an application of restorative justice which is sensitive to the context of GBV. The approaches of various strands of feminist legal theory are examined to find a lens which is able to guide the application of an ubuntu-based restorative justice approach to cases of GBV. The theoretical framework of this thesis consists of an ubuntu-based approach to restorative justice, guided by an intersectional and ubuntu feminist lens. This theoretical framework is then used to analyse restorative justice jurisprudence to establish whether courts have taken an adequately victim-centric approach in the cases identified. The analysis determines whether the courts can restore the complainants’ human dignity in each of the cases by awarding them both material and symbolic restitution. This thesis works from the hypothesis that courts have not adequately centred victims of crime, particularly GBV survivors, in the application of restorative justice. The Constitutional Court and Supreme Court of Appeal have held that the crime of rape degrades the rights of victims, particularly the right to human dignity, and that courts have a duty to protect these rights.2 This thesis investigates the extent to which courts have actively prioritised the restoration of the complainant’s human dignity when applying restorative justice in sentencing practices. Restorative justice cases have been identified as worthy of investigation because of the way victims and their restitution are centred under a restorative paradigm. This thesis finds that courts have not adequately centred complainants and their restitution when applying restorative justice in cases of GBV.
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    An analysis of the Separation of Powers Doctrine in Housing Rights Remedies Jurisprudence
    (Stellenbosch : Stellenbosch University, 2022-03) Weideman, Andrea Joy; Slade, Bradley V.; Kok, Anton; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The remedy issued by the Constitutional Court in Government of the Republic of South Africa and Others v Grootboom and Others 2000 11 BCLR 1169 (CC), has been criticized for being overly deferential. In spite of the courts’ wide remedial powers, it made an order lacking specificity about the measures required to remedy the housing rights infringement in that case, overly deferring its remedial role to the executive and legislative branches of government. The basis of the court’s overly deferential approach was the separation of powers doctrine. Therefore, the question that this study aims to address is how the separation of powers doctrine impacts on the courts’ provision of remedies in South African housing rights remedies jurisprudence. To answer this question, this study contains an analysis of the separation of powers doctrine in the abstract and as understood in the South African context, as well as an analysis of the remedies issued by the courts in housing rights cases, with a specific focus on the remedies issued by the Constitutional Court (hereafter “the Court”). This study attempts to illustrate that the foundation for the Court’s strict understanding of the separation of powers doctrine was laid during the debate about the inclusion of socio-economic rights in the 1996 Constitution. During this debate, separation of powers concerns, judicial capacity, and judicial legitimacy, were raised by those against the inclusion of socio-economic rights in the 1996 Constitution. In this study it was found that the same separation of powers concerns raised during this debate are ritually invoked by the Court in housing rights cases during the remedy stage of adjudication. It is against this backdrop that the Court has traditionally adopted a deferential approach in relation to the provision of remedies in housing rights cases. However, despite the implications of the Court’s traditionally deferential approach, the Court post-Grootboom has shifted away from this approach. While the Court’s postGrootboom approach was necessary considering the failed interaction between a deferential Court and an incompetent government, and its implication for the victims of housing rights violations, it potentially raises separation of powers concerns. Despite these separation of powers concerns, it is argued in this thesis that the Court’s post-Grootboom approach is justified on the basis of a more contemporary understanding of the separation of powers doctrine. While the Court’s post-Grootboom approach was a step in the right direction, the transformative — coupled with the supreme — nature of the 1996 Constitution requires something more, a reconceptualization of the separation of powers doctrine. The reconceptualised doctrine that I have in mind encapsulates a separation of powers that is understood and applied by the Court with the achievement of the transformative aims of the 1996 Constitution in mind.
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    Community-based mental health care for adults with psychosocial disabilities in South Africa through a right to health lens
    (Stellenbosch : Stellenbosch University, 2022-03) Booyens, Marietjie; Liebenberg, Sandra; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: There has been a shift, globally, from institutionalisation as the primary response to psychosocial disability, to community-based mental health care. This thesis sets out to determine the extent to which the legal and policy frameworks which govern community-based mental health care for adult persons with psychosocial disabilities in South Africa comply with constitutional and international law standards relevant to the right to health. First, by analysing the right of access to health care services in section 27 of the South African Constitution, relevant normative standards for community-based mental health care are established. Further, the negative and positive constitutional obligations in respect of the right of access to health care services are discussed. Following the analysis of constitutional norms and obligations, four key regional and international human rights instruments are analysed, with the right to health as the primary lens. A key part of this analysis is the consideration of two frameworks: the normative standards of “availability”, “accessibility”, “acceptability”, and “quality”; and the obligations to “respect”, “protect” and “fulfil”. These constitutional and international law standards are then applied to evaluate the mental health care legislation, policy and practice relevant to community-based mental health care – specifically, the Mental Health Care Act 17 of 2002, the National Mental Health Policy Framework and Strategic Plan 2013-2020, and the White Paper on the Rights of Persons with Disabilities of 2016. On the basis of this evaluation, this thesis finds that the framework does generally align with the constitutional and international law standards. However, the translation of this framework into practice is deficient in a number of ways. These deficiencies include: the absence of effective monitoring and information systems; insufficient resource allocation; the inequitable distribution of goods, facilities and services; a lack of clarity on the applicable standards for quality, ethical care; and poorly functioning oversight and accountability mechanisms. Consequently, this thesis concludes by making recommendations to improve the alignment of South Africa’s system of community-based mental health care with constitutional and international law standards.
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    Poverty as a ground of unfair discrimination in post-apartheid South Africa
    (Stellenbosch : Stellenbosch University, 2022-03) Basson, Gideon Burnett; Liebenberg, Sandra; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: Since the advent of constitutional democracy, the project of transformative constitutionalism has had limited success in addressing structural poverty and inequality in post-apartheid South Africa. The stubborn nature of poverty and inequality is a result of four-hundred-odd years of politically calculated spatial ghettoisation, infrastructural neglect, land dispossessions, privileged citizenship, elite capture, perpetual wealth hoarding and unequal access to socio-economic goods. As a result, impoverished people continue to experience pervasive forms of discrimination such as violence, abhorrent prejudices, political marginalisation and structural barriers to accessing basic needs. Despite this reality, poverty is not recognised as an entrenched prohibited ground of discrimination. This study develops a comprehensive interpretative framework to conceptualise poverty as a ground of discrimination under the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. It does so specifically by developing a transformative conception of substantive equality that should undergird impoverished people’s right to equality and non-discrimination. It draws from the work of the global justice critical social theorist Nancy Fraser as well as South African critical legal scholars to postulate an appropriate framework for conceptualising poverty as a ground of unfair discrimination under current capitalist conditions within the South African constitutional regime. The study employs a critical methodology to examine the implications of a reimagined transformative conception of substantive equality for the adjudication and litigation of poverty as a ground of unfair discrimination.
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    The essential need for empathy : a study evaluating the legislative provisions aimed at protecting domestic violence victims against secondary victimisation by the police
    (Stellenbosch : Stellenbosch University, 2021-03) Steyn, Janneke; Nel, Mary; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: This study sets out the broad context of violence against women in which we find ourselves in South Africa and then moves on to narrow that scope to the domestic violence context specifically. The study then reviews, analyses and critiques the applicable domestic violence legislation, namely the Domestic Violence Act and the National Instructions on Domestic Violence to be adhered to by the South African Police Service as well as legislation relevant to secondary victimisation of victims of crime within South Africa, namely the Service Charter for Victims of Crime along with its Minimum Standards. In order to study how these applicable legislative documents have found operation independently and in conjunction with one another and to what extent it has been conducive to protecting domestic violence victims against secondary victimisation by the police, jurisprudence is used to review practical examples thereof. By means of jurisprudence and commentary thereon such as academic authors, it is also possible to get a firm grip on the damage which may be caused by the police to domestic violence victims in the case of secondary victimisation. Research questions pertaining to the adequacy and thoroughness of the current legislative landscape to make provision for the protection of domestic violence victims against secondary victimisation by the police are possible to answer due to the analyses of legislative measures and jurisprudence described above.The argument made is that in order for domestic violence victims to possibly be adequately protected against secondary victimisation by the police, legislative interventions need to be explicit to this effect. It is also possible to read into legislatively implied standards that an approach of empathy together with explicit protective measures need to be motivated and advocated for in order for domestic violence victims to not only be protected from secondary victimisation by the police, but also for the police to be deemed trustworthy in the eyes of such victims in order to be able to address domestic violence as a problem at large.