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- Human rights are rights which a person has or should have by virtue of his being a human being. This implies that a state should allow a certain measure of individual liberty. Although the idea of human rights has become accepted in the international community, the observance of human rights varies from place to place. On the attainment of independence most of the African states adopted constitutions enshrining bills of rights justiciable by the courts. Despite these bills of rights, many of the African states have been guilty of gross and systematic violation of human rights. This can be ascribed to social economic and political factors. These largely stem from the colonial background from which these states emerged. Colonial rule was extremely authoritarian and did not provide encouragement for the protection of human rights. This tradition was extended to the post-independence era. Although the independence constitutions provided for the protection of human rights, these constitutions were largely imposed on the independent states and consequently lacked legitimacy. The Organization of African Unity initially did not have the protection of human rights as one of its major objects largely because of the prevailing political circumstances at the time of its establishment. When member states violated human rights the OAU raised the defence of non-interference in the domestic affairs of a sovereign state. In this way African states applied double standards when it co~es to the violation of human rights especially because they were critical of the racist policies of the South African government. The adoption of the Charter of Human and Peoples' Rights in 1981 by the OAU has provided a regional mechanism for the promotion of human rights in Africa. Despite its limitations this charter will contribute towards the observance of human rights in Africa. Moreover, it implies an end to the non-interference defence. The African experience provides a significant lesson for the bill-of-rights debate in South Africa
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- The problem of land rights for indigenous peoples is one closely linked to the right of self-determination. A problem which poses a barrier to such right is the meaning of the adjective "indigenous. While it is commonly used to denote that the subject is simply native to a place, its usage in referring to indigenous peoples in the context of international human rights is narrower. A definition that has been proposed, and which is generally used as a working definition for the purposes of international action, is the Martinez Cobo definition. According to this definition, indigenous peoples are also classified as minorities. Other human rights closely connected to the right to land and self-determination for indigenous peoples are group rights, the right to existence, right to non-discrimination, the right to own culture, right to preservation of the identity of a group and the right to natural resources. Land dispossession does not only have a negative impact on indigenous peoples, but on all humankind and also on the environment. Indigenous peoples also want to share in the natural resources of their land. Modem industrialisation for the purpose of economic development has also caused damage to the environment and to indigenous peoples. The impact of landlessness is a problem which needs to be addressed. The right of self-determination is an important right for indigenous peoples. The five manifestations of such a right are discussed in Chapter 4. Self-determination has both an external and an internal aspect. The problem of defining the term 'peoples' is said to be a barrier to the exercise of the right of self-determination by indigenous peoples. Self-determination is related to aspects such as decolonisation, equality, sovereignty, statehood, cultural integrity, secession, territorial integrity and autonomy. The relationship between self-determination, land rights and natural resources is dealt with in Chapter 5. International institutions such as the United Nations and International Labour Organisations have intervened in trying to solve the land rights and self-determination problems for indigenous peoples. A comparative study within the context of the South African Law, covers the following aspects: 1. The historical background of land rights in South Africa. 2.. The racial zoning of various parts of the Republic into homelands and the division of lands into locations, tribal-bought land, privately bought land and Trust land. 3. The provisions of the Native Land Act of 1913 and the Bantu Trust and Land Act 18 of 1936. 4. Land Reform for Black Land Rights legislation towards such reform, and the provisions of the Freedom Charter of the ANC. 5. The Redistribution of land under the doctrine of Aboriginal Title. 6. Land Reform after 1994. 7. The provisions of both the 1993 and the 1996 SA Constitution Acts. Part II of Chapter 7 deals with the exercise of the right to self-determination in South Africa. The question as to what is a 'national self is considered as compared to the international definition of the term 'peoples'. Although the land rights and self-determination problem for indigenous peoples is a global problem which needs immediate legal attention, South Africa is also moving along with the provisions of various international instruments towards land reform. In search for a solution towards these problems, the effect of existing legislation towards land reform is analysed. It is clear that 'real' land reform cannot happen overnight.
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- Since the inception of democracy in South Africa, public participation has become an essential element of democracy. This concept of public participation has become crucial in strengthening democracy as well as in trying to maintain a balance between representative and participatory democracy. The nation’s Constitution imposes a constitutional imperative upon the legislature to ensure ‘public involvement’ using legislative processes. This concept of ‘public participation’ therefore is a concept encompassing all democratic participation processes. It is the most conventional avenue to consider and incorporate the voices and will of community members in the law-making process. Meanwhile, the legitimacy of the statutes enacted by the government has been challenged in numerous occasions because of flawed public participation processes. Wherefore public participation in the law making process becomes a subject of considerable research. The main aim of this study was to establish the compliance by the KwaZulu-Natal Legislature (KZNL) with the constitutional mandate of ‘facilitating public involvement’ when laws are being made. The study provided an international and foreign perspective of public participation intended to obtain an overall global picture of public participation and how it should be understood in a democratic country. A number of international treaties were brought into discussion. The treaty declarations were found to emphasise the significance of public involvement in democratic countries to ensure the protection and promotion of human rights. It is therefore claimed that the treaties have played an increasingly important role in agitating for the advancement of public participation in South Africa. The study further considered foreign law, where few selected experiences of developed and developing countries were analysed, and most of these countries support public participation. The study also explored public involvement in practise within the context of the KZNL. Various participation mechanisms were identified and analysed. The study revealed that there are significant and strenuous efforts by the KZNL in accomplishing its duty to facilitate public involvement. There is an established framework in place to regulate public involvement. It is however noted that despite the presence of this robust framework adopted to guide participation activities, which provides an overview and insight within the KZNL on how to achieve meaningful participation, practically, the study reveals challenges ordinarily encountered in conducting public hearings. These challenges also serve as a threat to meaningful public participation that relates mostly to consultation processes, short notice for public hearings and limited periods to convene such hearings. The study revealed that such anomalies flow from the National Council of Provinces (NCOP) that is sometimes responsible for giving stringent turn-around time frames for Provincial Legislatures to convene public hearings. The study concluded by providing a series of recommendations based on the study findings, as well as in relation to the reconfiguration of public hearings modus operandi and provision of relevant innovation. With those recommendations, it will be therefore possible to achieve meaningful participation, and most importantly, enact constitutionally compliant laws.
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- This dissertation takes its focus from the plight of millions of South Africans living with HIV/AIDS. The disease predominantly affects adults of a working age resulting in direct impact on the workforce. Protecting the HIV/AIDS positive worker is crucial to ensuring a harmonious working environment, limiting new infections and curbing pre-existing infections. The focus of this study was to investigate the degree of protection or lack thereof extended to HIV/AIDS positive employees in the workplace. In an effort to analyse and explore the possible remedies available to HIV infected employees, it was necessary to conduct a comparative analysis between other international jurisdictions such as the United States of America and Australia. It was concerning to note that despite statutory and common law demands on employers to provide a safe working environment, there appears to be an increase in the number of HIV/AIDS occupational transmission cases worldwide. In an effort to address such challenges, specifically in South Africa, the researcher investigated the possibility of incorporating the doctrine of vicarious liability into the South African legal system more so against the backdrop of existing legislation in the form of Section 35(1) of the Compensation for Occupational Injuries and Diseases Act. Investigations pertaining to the protection of employees took place through a comprehensive analysis at pre-employment, continued employment and dismissal stages. This was achieved through thorough review of literature, legislation, case laws, journal articles, reviews and gazetted articles both nationally and internationally. A critical analysis of the existing legislation in South Africa purporting to protect HIV infected employees in the workplace suggests the need to move towards a progressive legal framework which incorporates a wider range of remedies available to the employee. The incorporation of the doctrine of vicarious liability into our legal system in future may be the solution to advancing the current legal framework and adequately addressing the plight of HIV positive employees. Its success would depend on certain factors being met, such as dual capacity being established and limitation to strict liability cases. Such a progressive framework will hold employers responsible for failure to implement safety measures in respect of occupational exposure at the workplace and allow for aggrieved employees to choose the mode in which they wish to claim compensation, allowing for a wider range of remedies in line their democratic right to freedom of choice.
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- Traffic laws, rules and regulations are designed for the prevention of traffic collisions and congestion. The achievement of traffic safety rests on a foundation of sound traffic regulations made effective by proper enforcement Road safety in South Africa is a matter of serious concern considering the number of deaths on the road annually. A high road carnage in South Africa cannot be attributed solely to the ever increasing population of road users and vehicles, but mainly to the lack of efficient traffic law enforcement. Road behaviour of motorists is determined inter alia by the chance of apprehension for traffic offences and the chance to have traffic prosecution finalised. Traffic offences in South Africa form part of the criminal law equally with serious common law and other statutory crimes. All offences are in practice adjudicated upon by the criminal law courts according to the law of criminal procedure. With traffic prosecutions numbering in millions,the need for judicial processing ofthese " offences expeditiously has exceeded the capacity of the present court system. For some time the enforcement of ourtrafficlawhas been lacking in efficiency. The crisis in which our traffic law enforcement finds itself is characterized by a high number of traffic prosecutions which are not finalised as a result of offenders who do not pay fines, who do not appear in court and those who cannot be traced for summonses to be served on them. Traffic prosecutions swamp the magistrates' courts and the Department of Justice personnel have, as a result, not been able to cope with the workload. in search for a solution to these problems, the effect of existing legislation, statutory provisions, administrative instructions and guidelines regarding the current traffic law enforcement system in South Africa were studied and analysed. The previous relevant research studies on the subject were consulted. A research on the experiences of other countries in the administration of traffic laws was carried out Comments on the subject were obtained from various persons and institutions charged with the administration of traffic law in South Africa The recent proposals by the Department of Justice to remove certain traffic offences from the criminal justice system were studied and analysed. In view of problems encountered, I directed my research towards seeking a mechanism whereby: the errant motorists would be successfully traced and be brought to book without delay, our courts would be relieved of the existing burden of traffic cases overcrowding our court calendars, sanctions equated with the conduct of a road user would be imposed, a fast, economic and efficient way of dealing with traffic offenders could be found, and the criminal stigma attached to traffic violations could be removed. There is a need for procedural decriminalization of certain traffic offences. Asan attempt to solve problems encountered in traffic law enforcement, recommendations are made for the re-classification as non-criminal of certain traffic offences and the introduction of a simplified adjudication procedure. These measures are conceived to protect the constitutional rights of the driving public, improve the driver behaviour and enhance society's interest in road safety.
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- The study focused on the evaluation of political interference in the administration of service delivery in uMlalazi Local Municipality, Kwazulu Natal. The aim of the study was to identify the challenges and the concerns of municipal officials, ward committee members and politicians about political interference in their administrative duties and to highlight the impact it has on service delivery as well as come up with the possible solutions with regards to the issue of undue political interference in the administration of service delivery. This study started by reviewing the political interference in the administration of service delivery and Constitutional basis for service delivery. Thereafter, the candidate undertook original research on a valid sample of municipal officials, ward committee members and politicians of uMlalazi Local Municipality. Questionnaire were sent to a sample of 7 municipal officials, 3 ward committee members and 6 politicians of opposition parties domicile within uMlalazi Local Municipality. The researcher adopted qualitative methodology for the analyses upon which conclusions were drawn. The study describes the respondents concerns, challenges and possible solutions for the issue of political interference in the administration of service delivery. The main findings show that the majority of the respondents agreed that political interference lead to poor service delivery in uMlalazi Local Municipality.
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- This study was undertaken to assess the community participation in the Integrated Development Plan. The study aimed to identify the causes for poor service delivery in the Mbizana Local Municipality. The study attempted to comprehend if this poor service delivery is caused by the inadequate management of an Integrated Development Plan (IDP) or the lack of community participation in local government affairs, particularly in the Integrated Development Plan. The existing literature reveals that poor service delivery could be caused by aspects, such as a lack of communication, participation, corruption, fraud, political interference in administration, elevated levels of unemployment and inadequate institutional capacity. Data was collected from both municipal officials and community citizens to understand the causes of poor service delivery in Mbizana Local Municipality. This was conducted by employing the qualitative approach. Semi-structured interviews served as a device to collect data from the study participants, representing community citizens, and municipal officials. This device was chosen attributable to its ability to collect as much information as possible from the study participants; therefore, participants were not limited when responding to the interview questions. The study findings reveal that the poor service delivery at Mbizana Local Municipality is caused by a lack of community participation and inadequate management of the Integrated Development Plan formulations. First, this is because the community citizens do not understand the processes of an Integrated Development Plan formulation and its importance to their lives. Second, the municipal officials also fail to adequately deliver municipal services attributable to concerns, such as internal political conflicts, corruption, and failure to maintain open communication with the local constituents. The study provides recommendations suggesting potential solutions for poor service delivery in Mbizana Local Municipality, which can also be adopted by all South African municipalities
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- This study analyses the protection and enforcement of offenders’ rights to rehabilitation in South African and the Democratic Republic of Congo (DRC) prison systems. These two jurisdictions signed and ratified the International Covenant on Civil and Political Rights (ICCPR) as the first legally binding instrument imposing states members to brand their prisons as reformatories and social rehabilitation institutes. The analysis first, is worrisome to incarcerate offenders in the South African and DRC prison systems because they will destroy them instead of being rehabilitated. Second, the two countries are plagued by the rate of recidivism while rehabilitation is the right of offenders. The objective of this study is to investigate the extent to which the two countries respect, protect, and fulfil the right to rehabilitation as required by their international, regional norms and standards, and provide decision-makers with tools to improve the rehabilitation in the two jurisdictions. For this study, the legal elements of offenders’ right to rehabilitation comprised the right to self-determination, religion, education, work, cultural activity, vocational and training programmes, pre-release programmes, psychiatric programmes, psychological programmes, social work programmes, teacher, dignity, equality, discrimination, freedom from torture, freedom from being treated or punished in a cruel, inhuman or degrading way, healthcare, food and water, and the right to clothing and bedding. To remedy the problem, the study was desktop research that used primary and secondary sources of data for contextual insight and critical commentary. Among the findings, the study found that the right to rehabilitation in the two jurisdictions is violated to the extent that offenders could be ill-treated and overcrowding is still unavoidable. Unlike the DRC government, which abandoned its prisons since the wrong process of Zaireanization or Nationalisation, in other words, the South African government, however, respects, protects and fulfils the extent that courts can intervene in favour of offenders. DRC NGOs also assist offenders with what they can to rehabilitated offenders if they consider offenders as equal without discrimination to comply with international obligations. There still is non-compliance in fulfilling the right to rehabilitation from the DRC government’s side. Recommendations from the study are that both countries should abide by their obligations as clarified in the international and regional treaties regarding the right to rehabilitation. Regarding overcrowding, South African courts must consider the private interest of the applicant requesting his or her achievement while incarcerated to be considered as “highly meritorious” services and be granted a special remission of sentence. The victim or his or her relative, however, should also be implicated in this process. The DRC government, in turn, has two options: it either privatises its prisons or remedies the challenge of arbitrary arrest. Furthermore, South Africa should learn lessons from the DRC regarding the matter of nationalisation, and the DRC should learn lessons from South Africa in putting the right to rehabilitation at the centre within its prison systems while amending its Ordinance Law No 344 of 17 September 1965 governing the prison systems to make it clear concerning matters of rehabilitation, as per the South African Correctional Act 111 of 1998 and the 2005 South African White Paper on Correctional Services and align it with international treaties.
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- Prior to 1994, laws that favoured a certain race of people governed South Africa. This meant that the race enjoyed more rights and privileges than the other races did. The participation of the other races, viz. non-white races, in the government, was limited. This had an adverse effect on community participation as the system favoured one group of people – whites – over the others. Blacks, coloureds and Indians had restricted rights in participating in government matters. The apartheid government eventually weakened, and that resulted in the democratic government’s taking over in 1994. In an attempt to address the imbalances of the past, the democratic government initiated processes that would ensure that everyone had equal rights such as the right to participate in all processes of the government. To that end, this study reveals the importance of community participation in King Cetshwayo District Municipality and the local government as a whole. However, there are challenges that need special and urgent attention. Additionally, the study shows that thorough community participation is achievable if attention is set on the community’s needs. The study aims to investigate whether King Cetshwayo District Municipality (formally known as the uThungulu District Municipality) has developed processes that comply with section 17 of the Municipal Systems Act 32 of 2000 (MSA) in order promote and ensure thorough community participation when an Integrated Development Plan is implemented. It further aims to assess and analyse whether the community and relevant stakeholders are engaged sufficiently during every decision taking - this also includes assessing the public’s knowledge of its participation rights. Describing and analysing the challenges of the IDP, if there are any, on the failure to comply with the statutory requirements associated with community participation also forms part of the study’s objectives. The researcher hopes to develop strategies to be followed by the municipality in order to ensure compliance. The study looks at challenges peculiar to community participation with reference to King Cetshwayo district municipality (KCDM). According to the 2016 statistics, KCDM has the third largest population in the KwaZulu-Natal province. The district also has a high concentration of big industries and retail sectors within its jurisdiction which contribute to the financial growth of the district. However, the district had challenges such as the decline of investment injections to its economy during the period of world wide economic recession. The population of the KCDM is mostly rural (80% of its population), and 53% of that rural population is aged between 0-19. Unemployment rate stands at 50% in KCDM, and poverty is the primary matter of concern in the region. Research methodology is an intricate part of every study since every research study must have a methodology. The method for this study is a qualitative study. Data was collected from both primary and secondary sources. Primary sources included the Constitution of the Republic of South Africa, the MSA, and other relevant legislation such as the recent constitutional court rulings, municipal strategic planning documents, municipal public participation documents and reports, and municipal council minutes on meetings about community participation. Secondary Sources included the works of other authors, newspapers and academic texts
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- The coexistence of traditional leaders and ward councillors in South Africa has birthed contestations within the sphere of local government. Debates have emerged in relation to the powers, functions of both lines of leadership and how they ought to coexist and cooperate in service delivery. The collaborations in the delivery of services to the citizenry between these two lines of leadership remains understudied, particularly in the eThekwini municipality ward 4. The study conducted face-to-face interviews with a sample of 9 participants, utilising qualitative methods in its approach. To analyse the data that was collected through the semi-structured interview guide, the study employed the thematic content analysis. The results of this study revealed that traditional leaders mainly play cultural roles but have a strong hold on land as a factor of development. The two structures generally did not collaborate very well towards development, even though they communicated with each other. This was because of negative perceptions on the education levels of traditional leaders, lack of developmental budgetary support for traditional leaders and different political orientations between the two structures. Overall, interviewed community members viewed poor collaboration between the two structures as having a negative impact on social, economic and infrastructural community development. The study recommended a collaboration framework enforcing the inclusion of traditional leaders in municipal and ward forums. The study also recommend that it is crucial to provide training for both offices on how they can work together for the benefits to the community
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