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Maintaining the status quo? : an analysis of the reformative potential of section 25

- Abdullah, Imraan Alam Khan

  • Authors: Abdullah, Imraan Alam Khan
  • Date: 2017
  • Subjects: Land reform - Law and legislation - South Africa , Land tenure - Government policy - South Africa , Right of property - South Africa , Restitution - South Africa , Constitutional law - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/236627 , uj:24227
  • Description: LL.M. (Human Rights Law) , Abstract: Land reform has become a hot topic recently. In particular the slow pace at which it is being pursued has prompted calls for an amendment to the property clause. This is due to the rising sentiment that section 25 is a guarantor of the status quo and not a tool for reform. My dissertation examines whether this sentiment holds water by analysing the reformative potential of the property clause. In doing so the constitutional matrix, a single system of law, and a purposive interpretation approach are all considered in detail as elements that illustrate the property clause is a tool for reform. The structure of the property clause is also considered with particular attention given to one of the pillars of land reform, namely land restitution. The conclusion drawn is that the property clause is a tool for reform and not a guarantor of the status quo and that the courts have understood this clearly. Conversely, what has been driving the status quo is in fact political impotency when it comes to pursuing the land reform agenda. In this regard the Restitution of Land Rights Amendment Act is discussed in light of a recent Constitutional Court case. Market-value compensation for expropriation is also an impediment in many cases, and in this regard the recent Msiza judgment is briefly discussed as being the progressive method for calculating the compensation. Finally, the conclusion is that calls for an amendment to the property clause are premature, as the full potential of section 25 to accommodate land reform has not yet been realised.
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Nationalisation : the nationalisation enquiry in light of Section 25 of the South African Constitution

- Chauke, Tshikani Olivia

  • Authors: Chauke, Tshikani Olivia
  • Date: 2015-07-14
  • Subjects: Mines and mineral resources - Government ownership - South Africa , Constitutional law - South Africa
  • Type: Thesis
  • Identifier: uj:13742 , http://hdl.handle.net/10210/14007
  • Description: LL.M. , This is the exploration of the topic of nationalisation of the country’s mines and mineral wealth. The discussion studies the impact of the Minerals and Petroleum Resources Development Act 28 of 2002 (hereafter referred to as the MPRDA) and other relevant legislation on the nationalisation discussion. Ultimately the discussion examines whether nationalisation finds any support within the South African Constitution or not. The discussion begins with a study of the history of mining and minerals rights; an exploration is then undertaken on the meaning of property and whether mineral rights can be understood to mean property. The discussion then progresses to the study of the relevant provisions of section 25 of the South African Constitution in an effort to determine whether nationalisation is justifiable in terms of the South African Constitution. What is largely considered in this case are the recent findings of the Agri South Africa v Minister for Minerals and Energy 2013 4 SA 1 CC case as well as other relevant and emerging case law on the subject matter.
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A critical analysis of the criminal liability of a parent company for the human rights violations of its subsidiary

- Chitima, Gloria Chipo

  • Authors: Chitima, Gloria Chipo
  • Subjects: South Africa. Constitution of the Republic of South Africa, 1996 , Constitutional law - South Africa , Criminal law - South Africa , South Africa. Bill of Rights , Corporation law - South Africa , Criminal liability of juristic persons - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/90191 , uj:19944
  • Description: Abstract:Whilst corporate activities have many advantages, the fact that there may be adverse violations of human rights associated with it cannot be ignored. The Constitution of South Africa of 1996 has enshrined human rights in the Bill of rights and every natural and juristic person must respect those rights. However a significant question arises concerning the responsibility parent companies have for their subsidiaries. Our Criminal Procedure Act 51 of 1977 which does not recognise parent and subsidiary relationships has contributed greatly to parent companies being able to be absolved from responsibility for the actions of their subsidiaries. The main aim of this dissertation is to come up with solutions to fill the gap of corporate criminal liability that has been created by our legislatures. Contributing to this gap has been the principles of limited liability and separate personality which have led to a situation where the parent companies have become difficult to hold accountable. However this dissertation will demonstrate that there are approaches that could be developed to circumvent the principles and hold the parent company criminally liable. , LL.M.(Corporate Law)
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Nothing to see here : stages of latent revolutions

- Corrigan, Byron Lance

An analysis of whether factory farming is reasonable in terms of Section 24 of the Constitution of South Africa

- De La Guerre, Nastassja

  • Authors: De La Guerre, Nastassja
  • Date: 2017
  • Subjects: Constitutional law - South Africa , South Africa. Constitution of the Republic of South Africa, 1996 , Livestock
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/270860 , uj:28797
  • Description: LL.M. , Abstract: Section 24 of the Constitution of the Republic of South Africa, 1996 provides the constitutional framework for ensuring the continued healthy existence of human beings and the environment at large. Animal agriculture has a significant impact of human health and well-being, as animals form part of certain people’s nutritional in take by either consuming animals directly through their meat or animal products like milk or eggs. Animal agriculture also has a major environmental impact. Animal agriculture will likely not be able to keep up with increased demands caused by a growing human population, which might cause certain practices like factory farming to emerge which could have serious negative impacts on the health and well-being of people as well as the environment at large. Due to intensification, factory farms often cause severe impacts on the environment, with little to no regard being paid to the welfare of factory farm animals or the health and well-being of people. This dissertation will analyse how factory farming causes various forms of pollution due to waste, which negatively affects human health and well-being which is protected in terms of section 24. The legislative and other measures that are currently in place will be analysed to show that these are not reasonable; which is contrary to the requirements of section 24. Finally, recommendations will be made on how section 24 could be used to effectively regulate animal agricultural practices to ensure a healthy environment.
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Group rights and the right to protection against human immunodeficiency virus/acquired Immunodeficiency syndrome (HIV/AIDS) infection from an industrial relations and public policy perspective.

- Gobind, Jenni, Ukpere, Wilfred

Hate speech in South Africa : what our constitution demands?

- Hatchett, Brian Alan

To be reasonable or not? A critique of the South African constitutional court’s approach to socio-economic rights

- Mlilo, Nqobizitha Mahole

Realising land reform through expropriation : an analysis of the just and equitable compensation requirement

- Mvunyiswa, Thamsanqa

  • Authors: Mvunyiswa, Thamsanqa
  • Date: 2021
  • Subjects: Land reform - South Africa , Equity - South Africa , Constitutional law - South Africa , Right of property - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/475496 , uj:42897
  • Description: Abstract: South Africa’s history is characterised by injustice, from the dispossession of land belonging to the indigenous inhabitants during the colonial era, to the discriminatory laws under the apartheid government. Nowhere is this injustice more glaring than in the marginalisation of African people in relation to access to land specifically, and the right to property in general.1 The majority of people in South Africa, black people in the main, still have either no or insufficient access to land, despite being the majority and despite the promise of reform, as espoused in the Constitution of the Republic of South Africa, 1996 (“the constitution”). This is the backdrop to the current debate about land reform and the amendment of section 25 of the constitution (“the property clause”), namely whether expropriation without compensation (“EWC”) should be allowed to fast-track land reform. This debate stems from the premise that paying just and equitable compensation for expropriation is frustrating the realisation of land reform and that abolishing this requirement is the answer to this challenge... , LL.M. (Human Rights Law)
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An analysis of the interrelationship of interpretative approaches between labour legislation and the transformative vision of the Constitution

- Rego, Dagan James

  • Authors: Rego, Dagan James
  • Date: 2015-07-14
  • Subjects: Labor laws and legislation - South Africa , Constitutional law - South Africa , South Africa. Constitution (1994) , Social change - South Africa
  • Type: Thesis
  • Identifier: uj:13735 , http://hdl.handle.net/10210/14000
  • Description: LL.M. (Labour Law) , In this minor dissertation the author argues that the Constitution will fail to uphold its own fundamental values if the rights and obligations which it enforces remains stale and outdated. A supreme body of law needs to be one which is breathing and alive, and which may adapt to fundamental changes in society. In turn, it is will be suggested that, if the Constitution remains ineffectual, labour law (which seeks to uphold its values and vision) will in turn become ineffectual. The minor dissertation will therefore consider the following pertinent question: Will the inability of the judiciary to interpret labour law in a manner that furthers the fundamental values in the Constitution result in such legislation becoming ineffective? It will be submitted that in order to promote economic and labour development one must be mindful of the social fluctuations present in light of a constitutionally supreme state. It is also stated that, in order to avoid a deadlock of complicated and outdated labour legislation which becomes inflexible, the Legislature must allow the Judiciary to develop such law to the extent that is necessary for its continued existence insofar as it complies with the Constitution. Without a strong and adhesive method in developing labour practice, social, economic and technological advancements will fail. Labour legislation must therefore be adaptive and flexible. The judiciary must therefore be adaptive and flexible in their own application of such law. In turn the Constitution is theoretically adaptive too, and its premise is achieved through the promotion of effective labour legislation, specifically.
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Motions of no confidence : parliament’s executive check and checkmate

- Venter, Roxan

  • Authors: Venter, Roxan
  • Date: 2013
  • Subjects: Constitutional law - South Africa , South Africa. Parliament
  • Type: Article
  • Identifier: uj:5497 , ISSN 0257–7747 , http://hdl.handle.net/10210/13622
  • Description: In the chess game that is multi-party politics a motion of no confidence is an important manoeuvre up the sleeve of any member of the legislature in most parliamentary systems. Not only the motion as such, but also the timing of the motion, may be used to the fullest advantage by opposition parties (and, of course, to the disadvantage of the government in power at the time). Recently there has been renewed interest in the mechanism of motions of no confidence following the constitutional court decision in Mazibuko v Sisulu. A motion of no confidence is an important feature of the parliamentary procedures of the British Westminster system and it is therefore also an important mechanism in many other parliamentary systems which have been modelled on the Westminster system, including South Africa. Usually a motion of no confidence may be introduced in parliament by any member of the legislature and it would then be debated and voted on by parliament. If the motion is adopted this usually entails that the head of government and his or her cabinet members have to resign, since the executive needs the support of the majority of members in parliament to remain in power. The importance of the mechanism of a motion of no confidence is therefore twofold. Firstly, it is one of the most important legislative control mechanisms to ensure accountability of the executive to the legislature. Secondly, it gives effect to the constitutional principle underlying most parliamentary systems that the executive remains in power only with the support of the majority of the members in the legislature. Unfortunately it seems as if the latter principle could be neglected in favour of the former – the Mazibuko judgment being a case in point.
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