Masters Degrees (Public Law)

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Access to justice for non-citizens : a constitutional analysis
(Stellenbosch : Stellenbosch University, 2014-04) Matshakaile, Thabani Nkosiyapha; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The rights entrenched in the Bill of Rights in South Africa’s final Constitution are, with a few exceptions, guaranteed to citizens and non-citizens alike. South Africa has seen an influx of migrants, asylum seekers and refugees since 1994, and this migratory movement has posed significant challenges to the post-apartheid legal order. This thesis is concerned with the State’s implementation of its constitutional obligations to protect and guarantee the constitutional rights of everyone within the borders of South Africa. It is important that these constitutional obligations do not remain mere aspirations but should translate into reality. Most non-citizens living in South Africa face numerous barriers to accessing justice and the processes that could enable them to realise their rights. The thesis examines the concept of “access to justice” and investigates a number of obstacles encountered by different categories of non-citizens – such as refugees, asylum seekers and documented and undocumented migrants – in trying to access justice and to realise their rights. Against this background, arrest, detention and deportation under the Immigration Act and Refugees Act are examined because these processes have often been abused by State officials to prevent non-citizens from accessing the rights and protections guaranteed in these Acts and the Constitution, and to frustrate the implementation of court orders vindicating the rights of non-citizens. The application of the Immigration and Refugees Acts is discussed through the lens of sections 12(1), 33, 34 and 35(2) of the Constitution which ensure that arrest, detention and deportation are done in a lawful and procedurally fair manner, as opposed to the arbitrariness that most non-citizens experience on a daily basis. Secondly, the thesis also examines access to justice for non-citizens in the context of xenophobia and bias based crimes. The State has in the past failed to respond in a coordinated and timely fashion in the face of violent manifestations of xenophobia. Against this background, the State’s obligation to protect non-citizens from violence from either public or private sources in terms of section 12(1)(c) of the Constitution is discussed and analysed. The role, accessibility and effectiveness of Equality Courts are also examined in light of the Promotion of Equality and Prevention of Unfair Discrimination Act and the cases that were brought before them emanating from xenophobic incidents. The thesis concludes with proposals on areas which require better implementation of existing laws; and areas in which legislative reform is needed.
Consenting to objectifying treatment? Human dignity and individual freedom
(Stellenbosch : Stellenbosch University, 2012-03) Fick, Sarah Johanna; Botha, Henk; Stellenbosch University. Faculty of Law. Dept.of Public Law.
ENGLISH ABSTRACT: The purpose of this study was to determine whether an individual can and/or should be allowed to consent to objectifying treatment. This necessitated the determination of the meaning of dignity, the meaning of freedom and the relationship between dignity and freedom. It was found that both the right not to be objectified and the right to consent to objectification could be found within human dignity. This is due to the broad definition of dignity in terms of which dignity has two, sometimes contradicting, components. One component safeguards autonomy and the right to choose, which supports consent to objectification, whereas the other promotes individual self-worth by prohibiting objectifying treatment. By investigating the meaning of freedom it was found that freedom as a constitutional value, and possibly also a free-standing constitutional right, could incorporate the right to consent to objectifying treatment. Three possible solutions to this tension between human dignity and freedom were identified and critically analysed. The first was that an individual cannot and should not be allowed to consent to objectification. This solution is primarily based on the notion that dignity is supreme to freedom and that freedom should yield to communitarian dignity. Furthermore, it is contended that consent to objectification is often invalid due to economic coercion and undue influence. The second possible solution was that, although an individual might not be able to validly consent to objectifying treatment, such consent should still be allowed under certain circumstances. The example of invalid consent due to economic coercion introduced in the previous solution was examined in relation to prostitution. The contention regarding this approach is that, since our government is unable to fulfil the socio-economic needs of those who consent due to economic coercion, such consent should be allowed and strictly regulated. The third possible approach was that circumstances do exist in which individuals can give valid consent to objectification and that in these circumstances they should be allowed to do so. In this solution the grounds of the first approach is criticised by contending, for example, that dignity is not supreme to freedom, that a plural society should allow these type of choices and that consent to objectification is already allowed in some instances. The results of this study were that, although there are situations in which genuine consent is not possible, it can be given under certain circumstances. An individual who cannot give genuine consent to objectification should not be allowed to do so, unless transitional measures dictate otherwise. However, an individual who is capable of giving valid consent to objectification should be allowed to do so. Finally, regardless of whether such consent is genuine or not, strict regulation thereof is required.
The constitutionality of religious observances in South African public schools
(Stellenbosch : Stellenbosch University, 2016-12) Van Schalkwyk, Cecile; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law
ENGLISH ABSTRACT : The right to freedom of religion is one of the oldest of the internationally recognised freedoms and is entrenched in section 15(1) of the Constitution of the Republic of South Africa, 1996 (“Constitution”). It is the hallmark of an open and democratic society and provides everyone with the right to practise their religion in the public sphere and to manifest their beliefs by way of religious dress, teaching, or the conducting of religious observances. Section 15(2) of the Constitution makes specific provision for religious observances to be conducted at state and state-aided institutions provided that (a) those observances follow rules made by the appropriate public authorities, (b) they are conducted on an equitable basis, and (c) attendance at them is free and voluntary. The Constitution has created a peculiar tension with the inclusion of section 15(2). On the one hand, it allows for the practice of religion in the public sphere, while on the other hand guaranteeing the right to religious freedom and freedom from religious coercion. In South Africa, religious observances are often conducted in the public school system. Public schools make provision for religious observances like prayer, worship, or the reading and interpretation of religious texts, while some schools even identify themselves as having a particular religious character or religious ethos. The South African Schools Act 84 of 1997 (“Schools Act”) delegates the power to determine rules on religious observances in public schools to the governing body of the school. In a country with a diverse citizenry it is often difficult for governing bodies to formulate rules that afford all learners an equitable right to religious observances, while being free from any religious coercion. What, from one perspective, would constitute a school community’s legitimate practice of their constitutionally guaranteed right to religion, might, from another, amount to a limitation of an individual learner’s right to be free to choose and practise his own religion or abstain from religious observances at all. The object of this study is to determine how the requirements for religious observances in state and state-aided institutions, as stipulated in section 15(2) of the Constitution and reiterated in section 7 of the Schools Act, must be interpreted within the context of public schools, to strike a constitutionally appropriate balance between the powers of school governing bodies and the right of learners to be free from religious coercion.
Freedom of assembly and democracy in South Africa
(Stellenbosch : Stellenbosch University, 2019-04) Hanekom, Eduhahn Luke; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT : In apartheid-era South Africa protests were a mechanism through which the dispossessed and marginalised could challenge their exclusion. These characteristically confrontational and violent protests influenced the framework adopted to regulate demonstrations during the democratic transition and in the new constitutional dispensation, namely the Regulation of Gatherings Act 205 of 1993 (“Gatherings Act”). In the new constitutional dispensation the right to assemble and demonstrate is guaranteed in section 17 of the Constitution. South Africa has been labelled the “protest capital of the world”. Protests are a regular occurrence and are a vital part of democratic participation and dissent. This is because the people, on whose will government is based, need an avenue outside of existing institutions to form and express their views and show their dissent. The question arises as to how certain types of dissent fit within different conceptions of democracy. This thesis attempts to determine whether and to what extent different understandings of democracy allow us to make sense of the nature and importance of protest action. The thesis examines the regulatory framework of the Gatherings Act, with reference to its implementation by the executive and state administration. It also examines case law in which section 17 of the Constitution has been interpreted. It argues that some of the provisions of the Gatherings Act, the implementation of the Act by the executive, and some court judgments reveal an impoverished understanding of democracy and unduly limit the rights of the citizenry to participate and dissent. The thesis examines various conceptions of democracy. It argues that, while the institutional models of representative, participatory and deliberative democracy may help to illuminate certain aspects of freedom of assembly, they do not adequately address the inherent tensions in democracy which are illustrated in contentious and disruptive protests. Representative models of democracy tend to offer a restrictive view which assumes that the will of the people is identical to the decisions of representatives, and minimises the role of participation beyond and between elections. Participatory and deliberative models of democracy attempt to eliminate tensions and conflict by creating a platform for a possible rational consensus. These models place a great deal of reliance on the power of representatives to establish spaces for democratic interaction. Disruptive protests are extra-institutional forms of democratic participation. This type of extra-institutional politics can be linked to the model of agonistic pluralism. Rather than attempting to eliminate and exclude conflict from democratic thought, it recognises that these conflicts are fundamental to democracy. The thesis argues that this model could help enable an understanding of protest action which recognises the centrality of protests to democracy and transformation under the South African Constitution.
The potential of meaningful engagement in realising socio-economic rights: Addressing quality concerns
(2019-04) Mahomedy, Sameera; Liebenberg, Sandra; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT : The advent of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) was a major milestone for South Africa in terms of redressing the atrocities of apartheid. While this has resulted in major developments, remnants of apartheid are still present and can be seen in the continuation of vast socio-economic inequalities. Access to housing and education still remains elusive to many South Africans, as indicated by the recent service delivery and higher education protests. Developing effective mechanisms for realising these rights is thus a high priority, including in the context of socio-economic rights litigation and adjudication. The doctrine of meaningful engagement developed by the Constitutional Court in housing and education rights cases offers a potentially innovative method for government, communities and other stakeholders to pursue the realisation of socio-economic rights. However, the potential of this participatory approach to socio-economic rights realisation remains contested, and its efficacy in practice has not yet been determined. A key challenge to its efficacy in realising the normative commitments of socioeconomic rights concerns the quality of the engagement that occurs between organs of state and various stakeholders. In light of the above, this thesis investigates the role that the quality of meaningful engagement plays in enhancing its efficacy as a mechanism to realise socio-economic rights. The thesis examines the justifications posited for using meaningful engagement as well as the importance of quality in achieving these justifications. Evaluative criteria for assessing the quality of engagement are developed. In addition to evaluating the quality of meaningful engagement in South Africa’s housing and education rights jurisprudence, the thesis examines meaningful engagement in an extra-judicial context, focusing on the #FeesMustFall Movement. The thesis concludes by making recommendations on how the quality of meaningful engagement could be improved, drawing on diverse theoretical literature pertaining to participatory democracy and critical theory.
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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Browsing Masters Degrees (Public Law) by browse.metadata.advisor "Botha, Henk"

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