Masters Degrees (Public Law)

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Browsing Masters Degrees (Public Law) by browse.metadata.advisor "Erasmus, M. G."

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    A delicate balance : equality, non-discrimination and affirmative action in Namibian constitutional law, as compared to South African and U.S. constitutional law
    (Stellenbosch : Stellenbosch University, 2002-12) Cassidy, Elizabeth Ann Kandravy; Erasmus, M. G.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: This thesis examines the constitutional law of equality, non-discrimination and affirmative action in Namibia, and compares it to that of South Africa and the United States. Namibian judicial interpretation in these areas seeks to balance the need to safeguard the internationally recognized human rights that the Namibian Constitution guarantees with the need to ensure that Namibian constitutional law is seen as grounded in Namibia's historical experience and culture. This latter imperative derives from the Namibian Constitution's origins in an international negotiation process, which has led to some popular criticism of the Constitution as foreign and imposed. As a result, Namibian courts have been careful to ensure that reliance on foreign precedent (where there is no local authority) does not diminish the Constitution's unique character and its suitability to the Namibian situation. To that end, the Namibian courts have given great weight to the role of current Namibian societal values in constitutional interpretation. In the areas of equality, nondiscrimination and affirmative action, Namibian courts have generally followed the South African approach, except with respect to discrimination on the basis of sexual orientation. The author concludes that the adoption of the South African approach generally makes sense for Namibia, and specifically criticizes the Namibian courts' approach to sexual orientation discrimination. The statutes enacted in Namibia to carry out the Constitution's equality and nondiscrimination guarantees, including in the area of affirmative action, are also considered. While these statutes have not yet been subject to judicial interpretation, it seems likely that future cases presenting issues arising under these statutes will necessitate the same balancing referred to above. The thesis begins with an overview of each Constitution's textual treatment of equality, non-discrimination and affirmative action, and a discussion comparing the background and basic structure of the three Constitutions. It then focuses on the judicial and legislative interpretation of the concepts of equality and nondiscrimination in Namibia, as compared to that in South Africa and the US. Following that, the author discusses the judicial and legislative interpretation of the concept of affirmative action in Namibia, also as compared to that in South Africa and the United States. The thesis ends with the author's conclusions and some predictions as to how the Namibian courts might rule on certain issues that seem likely to arise in these areas in the future.
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    Evaluation of the international law regarding humanitarian intervention in human rights abuses not breaching international peace and security
    (Stellenbosch : Stellenbosch University, 2004-03) Du Plessis, Madri; Erasmus, M. G.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: This study exammes, m stages of development, the existing law regarding humanitarian intervention, problems in respect of this law and cases of intervention. More specifically, intervention in human rights abuses not breaching international peace and security but rather posing a so-called threat to peace is examined. This information is used to consider whether more adequate provision can be made regarding circumstances of intervention to stop situations of grave human rights abuses sooner. From the law regarding humanitarian intervention, it is evident that the institution of intervention is illegal under the present UN legal system. Yet, in a time when the human rights culture has become so important that it forms part of the basis of international law, effective intervention is not being authorised by the Security Council. As a result, other actors have been intervening in cases of grave human rights abuses. These interventions need to be appropriate and well managed. Since the protection of human rights is as valid in non-democracies, as in any democratic state form, the study finds that human rights will benefit from dependence on legitimate authority. Attributing more importance to the Uniting for Peace Resolution could expand the role of the General Assembly. Humanitarian intervention also needs to be coupled with a commitment to address the causes of human rights abuses through conflict resolution and social reconstruction. The study concludes with some criteria/guidelines for the establishment of the legitimacy of intervention.
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    Die gelding van die volkereg in die Suid-Afrikaanse reg
    (Stellenbosch : Stellenbosch University, 1990-12) Bezuidenhout, A. E. M. (Anna Elizabeth Martha); Erasmus, M. G.; Stellenbosch University. Faculty of Law. Dept. of Public Law .
    ENGLISH ABSTRACT: According to Rumpf£ CJ in the Nduli decision, Roman-Dutch law is the fons et origo of the statement that customary international law is part of South African law. His sources, Fran~ois and Huber, are open to criticism because they are not Roman-Dutch authorities on this specific question, but the decisions in Ncumata v Matwa (1881-2), Du Toit v Kruger (1905), and Rex v Lionda (1944) emphasise that the reception of customary international law in South African law has taken place through Roman law. Various court decisions emphasise that the term Roman-Dutch law should not be interpreted narrowly, as it includes the common law of the whole of Western Europe and not only of the province Holland. If this quotation is interpreted in an ius commune context, it is clear why Rumpf£ CJ did not cite specific sources to prove his point: he accepted it as a given fact- as the jurists did in the middle ages. Roman-Dutch law serves only as a frame of reference out of which international law has developed. The courts therefore apply international law as international law and not as, for example, common law. Two important implications follow: firstly it means that customary international law need not to be transformed before the courts can apply the relevant rule and secondly that new rules of customary international law automatically form part of the law of South Africa. From the eighty South African court decisions discussed, it is clear that the courts do take judicial notice of customary international law. This justifies the statement that the judiciary regards customary international law as part of the law of South Africa since 1879. The influence of English law on this section of South African law must, according to Rumpf£ CJ, also be taken into account. The reason is that English law is the common law of the South African constitutional law which influences the application of international law by the courts. This can extend the courts' frame of reference. Only a fifth of the cases discussed refer to Roman-Dutch writers, and then only in a comparative sense. The South African courts rely mainly on Anglo-American decisions and tendencies. The South African courts follow their English counterparts by accepting the same qualifications on the general rule that customary international law forms part of the law of the land. The willingness of the courts to apply customary international law has diminished over the years especially in cases where state security features. It seems that politically contentious questions play an inhibiting role on the readiness of the courts to apply customary international law where conflict, real or imaginary, between customary international law and municipal law appears. Acts of state constitute the most important obstacle in the application of customary international law, because they could lead to the court abandoning its independent judicial function in favour of the executive. Because the South African courts follow the English law in this area also, it is assumed that safety measures developed there would be adopted by the South African courts to prevent their jurisdiction from being limited too easily. It is recommended that more attention should be given to the existence and application of customary international law principles and that a conscious effort must be made by the judiciary to resolve conflict between customary international law and municipal law and to do it in such a manner that due account is taken of the fact that in South Africa customary international law is part of the law of the land.