Electronic Theses and Dissertations (Masters)
Permanent URI for this collectionhttps://hdl.handle.net/10539/37939
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Item Intimate partner killings, criminal defences and the law(University of the Witwatersrand, Johannesburg, 2024) Sithole, Patience ThandekaThe Constitution of the Republic of South Africa, 1996 in section 9 resoundingly guarantees the ‘equal protection and benefit of the law’ to all who are within the Republic. This undertaking is a crucial part of the South African democracy, and it is a manifestation of the law’s progression from being grossly and arbitrarily discriminatory, to becoming more inclusive and considerate of people from all walks of life. Contrarily though, a close analysis of some aspects of the law as it currently exists, shows that equality before the law is more aspirational than it is a reality. Women, in particular, are often overlooked and subjected to unfairness by the same law that, in theory, vows to protect them. The lack of accommodation of abused women who kill, by the private defence ground of justification, under criminal law is an apt example of the law’s marginalisation of women. This marginalisation manifests itself in the rigid approaches to cases of abused women who kill. The typical approach is the objective ‘reasonable person’ standard which is effective in most instances but has fallen short in cases of abuse, as such cases require consideration of the abused woman’s unique set of circumstances. This calls for a closer exploration of the specific and subjective factors of women’s experiences in order to comprehend the nature and extent of the abuse. Although expert witness evidence is admissible in these cases, the weight placed on such evidence is minimal, often leading to a miscarriage of justice. In view of that, this paper serves to play a dual role of re-identifying the inadequacies that continue to exist under the private defence laws in South Africa, while simultaneously providing recommendations on how the law can be developed to successfully address these inadequacies.Item Rights-based litigation techniques and the judiciary in post- 1994 South African socio-economic rights jurisprudence(University of the Witwatersrand, Johannesburg, 2022-03-31) Mogadime, MphoThis study focuses on the vindication of socio-economic rights and the role of judges, especially in the Constitutional Court, in giving meaning to and realizing socio- economic rights in line with the transformative goal of the Constitution. The study traces the socio-economic rights jurisprudence of the Constitutional Court through its first, second, and post-second ‘waves’ or phases in order to lay a foundation of the attitude and approach of the Constitutional Court to socio-economic rights interpretation. The study further looks at the critique against the approaches of the Constitutional Court and finds that the Court is placed in a good position and is empowered to set a normative framework for the realization of socio-economic rights. The normative framework is based on the transformative goals of the Constitution and functions to provide guidance to the Court and the State in general on interpreting and realizing the political aims of socio-economic rightItem The protection of human rights defenders against assassination under south african law(University of the Witswatersrand, Johannesburg, 2023) Mapfurira, MelonHuman rights defenders (HRDs) are under siege in South Africa. They face unprecedented attacks which, in the worst of circumstances and frequently, culminate in assassination. In that light, the research report examines the extent to which the South African law protects HRDs against assassination. To set out the extent of the risks countenanced by HRDs, the report discusses a few cases of assassination in the environmental, whistle blowing, and land rights categories. Turning to the law, it discusses and analyses domestic, international, and regional legal instruments before it finds that the available legal mechanisms can insulate human rights defenders against assassination. To gain insight into the protections extended by other jurisdictions, the report also scans through legal mechanisms meant to extent specific protection to HRDs in foreign jurisdictions and observes that despite the presence of these laws, human rights defenders in these jurisdictions still face unprecedented violations including assassination. Drawing from these instruments and the prevalence of assassination, the report argues that lack of commitment to implementation and the absence of political will to address the root sources of violations perpetuates a climate of impunity resulting in the scourge of assassination that takes place unabated. Ultimately, the research report concludes that while the available legal mechanisms can extend protection to human rights defenders, the executive arms of the state are lagging in their implementation responsibilities. As a remedy, amendments to the Protected Disclosures Act (PDA) and adoption a HRD specific legislation with sufficient implementation safeguards are recommended to alleviate the situation of HRDs. The proposed safeguards include establishment of an independent panel of experts to foster implementation, and amending the PDA to extent protection to whistle-blower HRDs against assassination while imposing hefty penalties for non-action