School of Law (ETDs)

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    Strengthening Accountability for Sexual and Gender-Based Violence under International Human Rights Law
    (University of the Witwatersrand, Johannesburg, 2023) Leung, Ka Yan; Chenwi, Lillian
    This research report critiques the current mechanisms available for ensuring accountability for sexual and gender-based violence (SGBV) in the context of international human rights law. It appraises the international, as well as regional, legal frameworks for SGBV, identifying common mechanisms flowing from those instruments. The report also identifies gaps and current challenges in the efforts to provide increased accountability for survivors and victims of SGBV. Key findings include an inefficient, heteronormative approach in respect of, and protection for, non-binary and gender-diverse victims of SGBV, and poor reporting by states in terms of the international human rights instruments. It concludes that taking a more gender-inclusive approach to instruments, and advocating for a new binding instrument with a more encompassing human-rights framing, may be of value, alongside the development of more progressive feminist jurisprudence. While these solutions do not claim to be the cure for all SGBV violations, they will greatly contribute to the protection of persons affected
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    Problematising teenage pregnancy as a human rights issue in South Africa
    (University of the Witwatersrand, Johannesburg, 2023) Maluleke, Light; Chenwi, Lilian
    Teenage pregnancy has long been considered a public health and a socio-economic problem globally, and South Africa in particular. A review of literature indicates that teenage pregnancy poses serious breaches to human rights. Consequently, the research report has determined that rights such as right to health, education, equality and life are at the core of teenage pregnancy. The indivisibility, interdependence, and interrelatedness of these rights become apparent once established that teenage pregnancy affects multiple rights. Against this background, this study problematises teenage pregnancy as a human rights issue in South Africa. The study seeks to answer the following questions: What are the effects of teenage pregnancy on the human rights of pregnant girls and teenage mothers? What are the domestic and international human rights law obligations of South Africa in the context of teenage pregnant? What measures have the SA government put in place to comply with its obligations and reduce high rate of teenage pregnancy in the country? Drawing from literature, case law and general comments/ recommendations and concluding observations of United Nations (UN) treaty bodies, such as the Committee on the Elimination of Discrimination against Women, Committee on Economic, Social and Cultural Rights, Human Rights Committee, and Committee on the Rights of the Child, as well as the regional treaty bodies like the African Commission on Human and Peoples' Rights, and the African Committee of Experts on the Rights and Welfare of the Child, the study found disparities and practical barriers which hampered teenagers from enjoying and accessing sexual and reproductive health information and services, including family planning; knowledge about and use of modern forms of contraception; termination of pregnancy services, antenatal and postnatal care. It also found high incidence of teenage pregnancy was the leading cause of high school dropout rates among girls in the country. Notwithstanding South Africa’s progressive legislation and policy measures, effective implementation of both national and international human rights law standards on teenage pregnancy in South Africa remains a challenge. The South African government should strive towards eliminating all practical and social barriers which prevent girls and teenage mothers’ from access to sexual and reproductive health services. To tackle the disparities and shortages of health care workers, government must hire and train more qualified people, and adopt proper budgetary measures to ensure availability, accessibility and acceptability of resources and services, to strengthen the capacity of the public health care system
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    The Decriminalisation of Sex Work as a Human Rights Issue in South Africa
    (University of the Witwatersrand, Johannesburg, 2023) Khumalo, Thandoluhle
    This research report argues that sex work be decriminalised in South Africa to avoid further human rights violations against sex workers, with a particular focus on the human rights violations perpetuated against sex workers during the COVID19 pandemic. To make these arguments the report sets out the background of sex work and the origins of the various laws that have emerged over the years to regulate sex work in South Africa. Further, it investigates how sex work is governed in various countries around the world and uses New Zealand and other African countries as examples of the different approaches to legislating sex work. The report focuses on the effect of the COVID19 pandemic on female sex workers who make up the majority of sex workers. This research report grounds its assertions in the various human rights considerations found in international legal instruments as well as the Constitution of the Republic of South Africa, 1996 (Constitution) as they relate to sex work. The conclusion is that sex work should be decriminalised in South Africa as the current laws that seek to prohibit sex work in South Africa are both unconstitutional and not compliant with international human rights standards
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    The bread cartel: can the conduct of firms in contravention of the competition act be recognised as a violation of human rights?
    (University of the Witwatersrand, Johannesburg, 2022) Motshidisi , Vilakazi
    Section 4 of the South African Competition Act, 89 of 1998 (‘the Competition Act’) prohibits horizontal restrictive practices in the form of price-fixing, market allocation, and collusive tendering. According to Maphwanya, cartels are among the most egregious forms of competition harm globally. Entities that form cartels frequently weigh the benefits of joining a cartel against the risks of being investigated by competition authorities (Maphwanya, 2017). The Pioneer Foods decision handed down by the Competition Tribunal (‘the Tribunal’) in 2009 charts a complaint lodged in 2006 against various bread manufacturers for allegedly engaging in cartel behaviour; in that these manufacturers engaged in a cartel which had the outcome of fixing the price of bread and dividing markets between themselves. Following the Competition Commission’s investigation and a determination that the bread manufacturers had indeed participated in the cartel, the Tribunal penalised the cartel members by imposing various administrative penalties. The conduct of the bread manufacturers occurred in a South African context, where bread is considered a staple food for many South Africans living in poverty. In light of the aforementioned decision, it is to be considered whether the coordinated conduct of firms seeking to raise prices to maximise on profits at the expense of ordinary and penurious South Africans should be considered a human rights violation. The impact of section 27(1) (b) of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’), which states that everyone has the right to access to food, will be considered explicitly in this report. Furthermore, the obligations of firms found to have violated the provisions of section 4 of the Competition Act are examined in light of whether private persons have constitutional obligations to provide access to food in accordance with section 27(1) (b) of the Constitution. To this end, reference will be made to the provisions of sections 8(2) and 39(2) of the Constitution
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    Caught in a gap? An examination and human rights assessment of immigration detention laws and practices in South Africa
    (2013-03-19) Tay, Roanna
    Abstract: This study examines the laws and practices relating to immigration detention in South Africa. It provides an in-depth examination of the legislation, with reference to known state practices and cases where migrants have been subjected to prolonged and repeated periods of immigration detention. The study highlights gaps in South African law that contribute to certain categories of migrants being especially vulnerable to immigration detention. Four categories are identified: (1) asylum seekers; (2) persons with difficulty obtaining travel documents; (3) stateless person; and (4) persons subject to other prohibitions against refoulement. The study offers recommendations for legislative reforms to fill the gaps in the law that contribute to these migrants’ vulnerability to immigration detention