Judicial enforcement of socio-economic rights under the 1996 constitution : realising the vision of social justice
- Authors: Ngcukaitobi, T
- Date: 2003
- Subjects: South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3689 , http://hdl.handle.net/10962/d1003204 , South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Description: Few legal developments in South Africa and elsewhere in the world in recent times have excited such controversy as the legal recognition of social and economic rights. South Africa has created a special place for itself in world affairs for being one of the countries that recognise socio-economic rights in a justiciable Bill of Rights. Partly this is in response to the appalling levels of poverty prevalent in the country which could potentially destabilise the new democracy. Improvement of the quality of life of every citizen is a crucial step in consolidating the constitutional democracy. The question that will face any court in giving effect to socio-economic rights is: how are these rights to be judicially enforced in a given context? The crux of this thesis lies in the resolution of this question. Firstly this thesis traces the philosophical foundations to the legal recognition of socio-economic rights. It is stated that the recognition of these rights in a justiciable bill of rights requires a conceptually sound understanding of the nature of obligations that these rights place on the state. It is emphasised that it is imperative that access to justice be facilitated to poor and vulnerable members of society for the realisation of the constitutional goal of addressing inequality. Particular concern and priority should in this context be given to women, children and the disabled. The study explores various judicial remedies and makes suggestions on new and innovative constitutional mechanisms for judicial enforcement of these rights. It is concluded that there is an important role to be played by civil society in giving meaningful effect to socio-economic rights.
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- Date Issued: 2003
Rights to reality - the right to social security, with particular emphasis on the legal resources centre's welfare project in the Eastern Cape
- Authors: Delany, Mairéad Christine
- Date: 2003
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:21027 , http://hdl.handle.net/10962/6052
- Description: This research addresses the question of whether the courts have been used effectively to enforce the right to social security in the Eastern Cape. The nature of the right to social security is discussed and placed in the context of constitutional developments in South Africa and South Africa's obligations in terms of international law. The enforcement of socio-economic rights and legislation regarding social assistance is also discussed in detail, along with the problems associated with the social security system such as the gaps in the system, the impact of HIV / AIDS and the problems created by the amalgamation of various administrations. The history of the Legal Resources Centre, a non-governmental organisation which has been involved in public interest law for twenty four years, is detailed. The Grahamstown office's litigation campaign against the Eastern Cape Department of Welfare is then discussed and six landmark cases are analysed in detail. A discussion of the jurisprudential significance and impact of each case on the development of South African administrative and constitutional law follows. A series of stories reported in the press illustrate the human aspect of the campaign and balance the legal argument. These stories may suggest that the Constitution's commitment to social justice and the government's commitment to the principles of Batho Pete are merely noble ideals for many people in the province, but it is argued that the LRC's campaign has made a vast contribution towards making these ideals a reality on the ground. The expert opinions of various groups interviewed during the course of this research regarding the impact of the LRC's litigation campaign are discussed, and the conclusion is drawn that it has indeed had a positive effect. They include paralegals at Advice Offices around the province, legal practitioners from the LRC, a private legal practitioner, several representatives of the Black Sash, a former MEC for Health and Welfare in the Eastern Cape Provincial Government, an official from the Department, and a leader of the Anglican Church in the province. In conclusion it is submitted that, but for the LRC's litigation campaign, the situation in the Eastern Cape would not have improved to the extent it has and may even have deteriorated further. Furthermore, it is submitted that as a result of the litigation campaign, the right to social security, and particularly the right to social assistance, is more accessible and more of a reality on the ground.
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- Date Issued: 2003
The legal effect of a coup d'etat on traditional constitutional concepts
- Authors: Mkwentla, Nelson Koala
- Date: 2002
- Subjects: Coups d'état , Constitutional law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3684 , http://hdl.handle.net/10962/d1003199 , Coups d'état , Constitutional law
- Description: This thesis deals with constitutional law and other legal subjects such as Jurisprudence and Judicial Review. One constitution is distinguishable from another by its own provisions. These provisions are usually referred to as either the basic characteristics or features of the particular constitution and these are invariably derived from the basic political philosophy and constitutional arrangements of the particular country. A coup affects these characteristics in different ways. Some automatically disappear as being incompatible with the revolution; some are modified, others are strengthened. The usurpers may choose to set aside the constitution completely and replace it with another, or amend it to suit the new situation, or rule without any constitution. This often happens amidst the rattle of weapons and the whirr of military engines in and around the capital of a given country on that awesome occasion. This thesis sets out to examine the legal aspects of a coup d’ etat. The thesis is divided into six broad sections. Part one will deal with the theoretical background. I shall discuss an overview of Kelsen’s pure theory of law. The second part deals with the scope of its application in revolutionary situations and will also touch upon the reason behind the Kelsen’s theory as shown by decided cases from country to country. The third part deals with the essence as well as the significance of the doctrine of necessity to validate unconstitutional acts in the case of a coup d’ etat. This discussion is to pave the way for the fourth part which is to explore the position of judges who took oath of office under the old constitution. I am to explain their position after a coup d’ etat. The fifth part forms the gist of my research. I shall examine the effect of a coup d’ etat on traditional constitutional concepts such as fundamental rights, separation of powers, rule of law and judicial review in the military regime. The sixth part will deal with African experience. I shall include recommendations and conclusions drawn from the Lesotho and Uganda experiences.
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- Date Issued: 2002