Masters Degrees (Public Law)

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    The adjudication of budgetary decisions in socio-economic rights litigation
    (Stellenbosch : Stellenbosch University, 2024-03) Rankin, Claire; Liebenberg, Sandra; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The entrenchment of socio-economic rights in the Constitution of the Republic of South Africa, 1996 commits the State to securing socio-economic redress in South Africa through the provision of various socio-economic goods and services. Ensuring the successful realisation of socio-economic rights requires, amongst other things, the provision of adequate budgetary support towards the programmes and policies aimed at giving effect to such rights. Judicial intervention in the State’s budgetary domain is traditionally understood to strain at the limits of the courts’ institutional legitimacy and competency. However, the manner in which socio-economic rights have been entrenched in the Constitution, the courts’ subsequent interpretation thereof, and the State’s existing budgetary patterns indicate that there may be a need for courts to assess the constitutionality of the budgetary support the State makes available to socio-economic policies and programmes. This study considers how courts could approach judicial intervention within such a context. Drawing from the work of legal theorists Rosalind Dixon and Katharine Young, this thesis suggests a suitable theoretical framework that could guide courts’ intervention in budgetary matters in a socio-economic rights context and makes recommendations regarding how such a framework could be utilised within the courts’ existing review and remedial paradigms.
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    A human dignity approach to public procurement in South Africa
    (Stellenbosch : Stellenbosch University, 2024-03) Alberts, Tobias Vivian; Quinot, Geo; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: Public procurement law in South Africa is underpinned by a paradigm that can best be described as state-supplier oriented. This paradigm entails an almost exclusive concern with the state, on the one hand, and suppliers, on the other, as role players in public procurement. The state-supplier procurement paradigm does not appear inadequate in and of itself. However, the paradigm maintains itself to the exclusion of the involvement of non-state actors in public procurement, notwithstanding the accompanying disadvantage for end users in any given circumstance. "End user" refers herein to beneficiaries of public goods and services, typically members of the public at large or of particular communities served by a procurement at issue. From the perspective of end users – especially those who have to finance public procurement – the arrangement of public procurement law around the interests of the state and suppliers as main actors is inadequate. Contemporary preferential procurement policies in South Africa are the epitome of the state-supplier paradigm. By promoting political or factional government objectives, suppliers can claim certain advantages in procurement processes regardless of the accompanying disadvantages for end users. Such approaches frustrate the necessary respect required for the human dignity of end users. It appears that legal scholars are not considering reform of public procurement law from a human dignity perspective. Research of this nature can be helpful for law reform purposes. With reference to the regard for human dignity in constitutional history and in contemporary legal conceptions, research with this aim is indispensable. Despite the confusion caused by the contemporary entanglement of human dignity with discourse on socio-economic rights, earlier conceptions of human dignity over the centuries are conducive to a concrete constitutional meaning of the concept. Human dignity can be considered a description of the uniquely human capacity for self-determination in terms of one’s moral conviction and intelligent assessment of pursuitworthy interests. The state must act with utmost deference to the aforementioned capacities. Public procurement law, as determined in the Constitution, legislation, jurisprudence, and other primary sources, does not promote room for self-determination as regards end users and the procurement of goods and services of a public nature. On the contrary, the instrumentalisation of end users and taxpayers for the benefit of some suppliers features prominently in procurement policies. Therefore, it is foreseen that a legal framework that gives varying degrees of recognition to community organisations to undertake municipal procurement can be valuable. Public procurement law should be reformed with the human dignity of end users in mind. This necessarily also means that preferential procurement policies that are focused on a mutually beneficial relationship between the state and some suppliers must be abolished.
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    The legitimacy of the African Court on Human and Peoples’ Rights after the withdrawal of Rwanda, Tanzania, Benin, and Côte d’Ivoire from Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights
    (Stellenbosch : Stellenbosch University, 2023-12) De Klerk, Derick Ras; Rudman, Annika; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT : The African continent is plagued by systemic human rights violations. These violations are often perpetrated by states against marginalised communities such as ethnic, sexual and gender minorities. Victims of human rights violations must, as a principle of international law, exhaust domestic remedies before they approach international human rights courts. However, access to justice and to an appropriate remedy under domestic law is far from the norm for African victims of human rights violations. As such, it is vitally important that Africa has a strong regional human rights system. With the adoption of the African Charter on human and Peoples’ Rights and the establishment of the African Commission of Human and Peoples’ Rights (“African Commission”) and the African Court on Human and Peoples' Rights (“African Court”), victims have been empowered to seek redress at a regional level. However, the African Commission is not empowered to deliver binding judgments, and the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (“Court Protocol”) does not afford individuals an automatic right to directly petition the African Court. Individuals may only petition the African Court directly on condition that the respondent state has made an optional declaration in terms of Article 34(6) of the Court Protocol. States have never petitioned the African Court and the African Commission has only done so on three occasions. As such, the African Court relies on the petitions of individuals to receive new applications and develop its jurisprudence. The inclusion of Article 34(6) has, thus, raised debates amongst the Justices of the African Court and academics alike, with some arguing that its inclusion poses a risk to the African Court’s legitimacy as a human rights protector. In 2016, Rwanda withdrew its optional declaration under Article 34(6), followed by Tanzania, Benin and Côte d’Ivoire, limiting potential applications to the African Court even further. This thesis assesses the legitimacy of the African Court after these withdrawals. Theoretical considerations of state sovereignty, the right of access to regional justice and the principle of complementarity underpins the research. Furthermore, the theoretical framework developed by Madsen et al. with regard to state resistance to international courts is applied to further analyse the withdrawals. Ultimately, this thesis seeks to provide an evaluation of the contemporary legitimacy of the African Court insofar as it relates to its ability to adequately fulfil its human rights protective mandate.
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    A legal review of the World Trade Organisation’s applications of the Agreement on Trade-Related Aspects of Intellectual Property Rights to ensure equitable access to health care during the COVID-19 pandemic
    (Stellenbosch : Stellenbosch University, 2023-12) Carstens, Jan Paul; Ruppel, Oliver C.; Ruppel, Oliver Christian, 1969-; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT : No abstract available.
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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.