Rights In South Africa Research Articles

Assessment of nurses’ compliance with Patients’ Rights in South Africa: A scoping review.

Abstract Background Compliance with Patients’ Rights by nurses is a crucial determinant of how well healthcare services are provided. Nurses are responsible for upholding Patients’ Rights because they spend so much time with patients. Therefore, it is essential to continuously assess nurses’ compliance with Patients’ Rights in healthcare institutions. Objectives To outline the breadth and type of existing research on nurses’ compliance with Patients’ Rights as well as to pinpoint any gaps in the body of existing knowledge. Methods A scoping review search was done in six electronic databases. For eligibility, articles written in English and focusing on nurses’ compliance with Patients’ Rights in South Africa were checked and evaluated. Data were taken from eligible study materials in order to compile, evaluate the quality, summarize, and create a narrative summary of the results. Results The literature collected was 1158 records from six data bases, after deleting 239 duplicates, 919 records remained. 891 records were excluded using title and abstract of the studies. 15 articles were included in the final analysis. Four articles were quantitative studies, 10 qualitative and one a mixed method. The included studies focused on six Patients’ Rights listed in the Patients’ Rights Charter which consist of 12 Patients’ Rights. Conclusion Nurses’ compliance with Patients’ Rights is inconsistent and there are limited studies on nurses’ compliance with all Patients’ Rights in SA. More studies are required in future, as seen by the included studies’ inconsistent findings.

The Protection of Human Rights in South Africa: Unpacking the Duty of the State to Realise the Right to Development

The 1986 United Nations Declaration on the Right to Development (DRTD) presents a multifaceted framework that blends political aspirations with principles from international human rights treaties. Advocating "people-centered development" places individuals at the forefront, empowering them as principal beneficiaries of development efforts. According to Article 2 of the DRTD, both state and non-state actors are responsible for formulating inclusive national development policies to continually enhance the well-being of the entire populace. This involves ensuring active, accessible, and meaningful participation in development processes and fair distribution of the resulting benefits. South Africa's duty to realise the right to development comes under scrutiny in this context. Despite its obligations under international instruments like the African Charter, challenges persist in effectively implementing developmental advancements. This includes fields critical for sustainable progress, such as renewable energy, biotechnology and information technology. Furthermore, the COVID-19 pandemic has exacerbated existing obstacles, straining resources and threatening to reverse recent developmental gains. Budget constraints, particularly in the research and development sectors, hinder progress towards meeting development objectives. Therefore, while the DRTD and other international instruments emphasise the importance of the right to development, critical debates regarding its scope and implementation persist. Addressing these issues requires a nuanced understanding of development dynamics, balancing global aspirations with practical considerations. It necessitates collaborative efforts to refine and operationalise the right to development, ensuring equitable progress and sustainable development for all.

Book Review: Mukaddam F Muslim Women between Community and Individual Rights: Legal Pluralism and Marriage in South Africa (Springer Nature Switzerland 2024)

This review examines the book by Fatima Mudakkam titled Muslim Women between Community and Individual Rights: Legal pluralism and Marriage Rights in South Africa (2024). The book explores the pluralistic nature of South Africa’s national legal system, focusing on the experiences of Muslim women governed by Muslim Personal Law. It provides a critical analysis of how this legal pluralism affects Muslim marriages and the civil rights of women within these marriages. The book is an essential contribution to the ongoing discourse on gender justice and legal pluralism in South Africa.

Companies’ Human Rights: The Implications for a Human Rights Approach to Climate Change Litigation in South Africa

ABSTRACT Taking a human rights approach to climate litigation is a more recent phenomenon in Africa than it is in the states of the Global North. Using South Africa as a case study, this article examines that approach and the implications of companies’ competence to assert human rights. It finds that companies, like natural persons, have certain human rights in South Africa, and that the human rights approach, which appears promising to litigant individuals and NGOs, is also available to companies. It argues that a human rights approach to climate change litigation can be used either positively by litigant individuals and NGOs or negatively by companies in the country.

Regulatory Framework on Climate Change and the Protection of Cultural Rights in South Africa: A Human Rights Perspective

Regulatory Framework on Climate Change and the Protection of Cultural Rights in South Africa: A Human Rights Perspective

COMMENTARY – THE STATE OF HUMAN RIGHTS IN SOUTH AFRICA APPROACHING 30 YEARS OF POST‐APARTHEID DEMOCRACY

As South Africa approaches 30 years of democracy, it is important to pause to reflect and analyze the trajectory of human rights since the fall of the apartheid regime and the advent of multiracial democracy. Although there was a large global movement against apartheid, this movement's vigilance for human rights in South Africa quickly declined and dissolved with the advent of South African democracy. There is little critical engagement with South Africa's contemporary human rights record and policies by global human rights activists, nongovernmental organizations, and civil society and still less active campaigning in defense of the human rights of South Africans, especially South Africa's most vulnerable and disadvantaged black majority. The energy that was summoned to protest apartheid and to boycott it never returned since the advent of democracy. This commentary explores the current state of human rights in South Africa, their prospects, and challenges to their respect, protection, and fulfillment.

Intellectual Property and the Constitutional Court of South Africa: Lessons from the Deployment of Adjudicative Strategies

The Constitutional Court of South Africa recently handed down its fourth decision so far in the field of intellectual property. These decisions came against the backdrop of reforms and reform proposals concerning intellectual property rights in South Africa. These reforms and reform proposals were prompted by the need to establish intellectual property laws that are attuned to South Africa’s local context and needs, while complying with South Africa’s international treaty obligations. Parallel to South Africa’s policy and legislative agenda, this paper recognises these four decisions (referred to as the “IP quartet”) as the emergence of an intellectual property rights jurisprudence. The paper analyses the IP quartet and identifies a coherent narrative with respect to the intersection between intellectual property rights and constitutional rights and the appropriate approach to determining their real-life applications. The paper also explains this intellectual property rights jurisprudence and its contribution, and considers the adjudicative strategies employed by the Constitutional Court in applying constitutional provisions to dealing with issues involving intellectual property rights. An explanation of this jurisprudence arising from these cases will: (a) promote an understanding of the scope of intellectual property rights including the appropriate nature of their intersection with constitutional provisions (specifically fundamental rights expressed in Chapter 2 of the South African Constitution); and (b) offer some guidance to lower courts and the executive arm of government on the appropriate approach to the interpretation, conceptualization and application of the intellectual property legal framework.

The expanding role of the curator ad litem i n protecting children's rights in South Africa

The appointment of the curator ad litem during litigation in which children's interests are concerned has, over the years, played a critical role in advancing the child's right to be heard and participate in matters affecting them for the advancement of their best interests. Prof Boezaart's seminal article on the role of the curator ad litem and children's access to the courts set out a comprehensive review of the origins, duties and role of the curator. Litigation and resultant court pronouncements subsequent to the article have continued to affirm the importance of the curator's role in matters dealing with the care of children; delictual matters in which children have legitimate financial claims; and acquisition of parental rights and responsibilities of the unborn child. The courts have affirmed the fact that the curator must only be appointed when their presence is necessary and not duplicate the functions of attorneys representing parents or caregivers of the children or the parents or caregivers themselves. The curator represents and protects the interests of the children concerned, prevents conflict with the interests of the parents, guardian or caregiver or represents the child when such parent, guardian or caregiver is unwilling to act in the interests of the child. The courts have held that in highly contested matters, the curator must, as an officer of the court, keep an open mind, remain neutral, and be open to all arguments in the interests of the children concerned. They must not allow themselves to be distracted by contentious issues in litigation and must honour their obligation to provide insight into the wishes and views of children and to apply their legal knowledge to the child's perspective. The curator has also played a critical role in protecting the interest of the unborn child by conducting an objective investigation and ensuring that their interests are fully before the court.

How gender-based cultural practices violate women's property rights and inhibit property ownership: A South African perspective

This article discusses the effect of gender-based cultural practices on women's property rights in South Africa and how this impacts on women's ability to own property – particularly land. The cultural practices discussed include those relating to customary marriages such as payment of brideprice and polygamy. They also include the practices of levirate marriages and male premogeniture. These practices are linked to the unequal position of women in society, and they do not only prohibit women's access to property ownership but they also infringe their constitutional rights. To that end, the constitutional protection of the right to equality in relation to property rights is discussed and suggestions are made on how the Constitution can be used to protect women's property rights. The role of the courts in protecting women's property rights is particularly highlighted. Specific reference is made to the significance of section 39 of the Constitution which requires a court to interpret the Bill of Rights in a way that promotes “the values that underlie an open and democratic society based on human dignity, equality and freedom” and obliges the courts to consider international law when interpreting the Bill of Rights. Indeed the article concludes that denying women's rights to property under the guise of culture is discriminatory and offends against fundamental and intrinsic human rights. It is proposed that courts should be encouraged to draw inference from international law as mandated by section 39 of the Constitution as this will, in all likelihood, see more women enjoying independent rights in property.

Recognition of Language Rights in South Africa: Innovation or Dismal Failure?

One of the main goals of the Constitution of the Republic of South Africa, 1996 is to bring about transformation within South African society. The new Constitution recognised no less than eleven languages as official languages, including various previously neglected indigenous languages. Where only two languages were previously recognised as official languages under the apartheid regime, this was replaced with a range of languages. However, South African government bodies do not always follow the Constitution’s language obligations; public higher education institutions have nearly all eliminated tuition in languages other than English; and legislation is rarely (if ever) issued in other official languages. The present paper shows how the recognition and use of languages in South Africa differs significantly in theory and in practice. The paper highlights this disparity by first laying out South Africa’s constitutional and legislative framework for official language recognition and use with regard to two issues, namely translation of legislation and the use of languages in higher education. Second, the paper looks at various rulings from South African courts that shows how official languages are used in practice and how language issues have been resolved by the courts. Third, the paper concludes that, rather than becoming a beacon of innovation, the South African Constitution’s language provisions have become a terrible failure. Finally, the paper offers several suggestions for dealing with this sad predicament.

The Possibility of Rights Claims-Making in Court: Looking Back on Twenty-Five Years of Social Rights Constitutionalism in South Africa

What factors influence citizens’ demand for law to protect social rights? We turn to the case of social rights in South Africa, just under three decades after the end of apartheid and the adoption of social rights constitutionalism, to examine the contours of rights claims-making in the courts. Drawing on original interview and survey research, we argue that above and beyond factors such as the accessibility of the courts and support of civil society, citizens must believe that rights claims-making through courts is possible. We find that these beliefs and the subsequent demand for justice are connected to people’s personal circumstances, sentiments as rights-holders, and trust in legal institutions, rendering the legitimacy of social rights constitutionalism beholden to people’s perception that the state actually delivers on these constitutional promises.

An investigation into the normal tax implications of fractional share rights in South Africa

A recent development in the financial service industry is the introduction of the fractional share right that allows a retail investor to invest in a fraction of a listed equity share. Fractional share right is not defined in the Income Tax Act No. 58 of 1962 (‘the Act’), nor has it been subject to scrutiny in South African courts. Uncertainty exists regarding the normal tax implications of fractional share rights in South Africa. This article investigated the possible normal tax implications of a fractional share right for a retail investor. The research followed a qualitative approach through the analysis of primary and secondary sources. The article established that a fractional share right is essentially a contract for difference, with a fraction of a listed equity share serving as the reference instrument. It was ascertained, based on a combination of the integration and bifurcation approaches, that a contract for difference in respect of a fractional share right constitutes a financial instrument for purposes of the Act. Due to the absence of specific provisions in the Act dealing with the normal taxation of financial instruments for retail investors, it was ascertained that the amounts stemming from the contract for difference in respect of a fractional share right may be taxed according to the general provisions of the Act – sections 1(1) and 11(a) of the Act.

Situating children in divorce mediation in South Africa and Australia: A comparative study

This study focuses on situating children in divorce mediation in South Africa and Australia. This study investigates how South Africa and Australia have domesticated and are implementing relevant international laws and policies that allows hearing the voices of children in divorce mediation. This study found that South Africa and Australia do not have specific legislation that provides hearing in the child's voice in divorce mediation. However, the Australian government funds on-going research to improve the hearing of a child's voice in divorce mediation. Aided by government funding, Australia has developed unique techniques to listen to the child's voice during divorce mediation. The special priority afforded to children’s rights in South Africa and Australia is justified under the Capabilities approach cost-effectiveness principle because it prevents a spiralling need for state intervention later in the lives of its citizens. Some of the techniques used by the Australian government go beyond the requirements of the UNCRC and ACRWC. For example, some FRCs employ technology to screen for child abuse before hearing a child's voice in divorce mediation. Like the Office of the Family Advocate in South Africa, FRCs use a teamwork approach where child consultants and mediators work together to listen to the child's voice during divorce mediation.

Pandemic hype and the consequential disruptions to routine vaccinations

This paper encapsulates the examination of literature setting out the vulnerabilities of children during the pandemic. The literature analysis highlights the gaps that exist, in the failure for protecting children’s rights in South Africa and globally. It is evident that the impairment of children’s rights during the pandemic is a global imbroglio. The gaps exposed are the foundation for the recommendations of engagement with relevant stakeholders, to adopt necessary legal, social, economic, political and health protections for children.

“Sex work is essential(ly) work” – Feminist sex worker rights advocacy in South Africa

abstract This Open Forum records a conversation between three activists who have worked within the field of sex worker rights in South Africa for close to two decades. Drawing on our experiences of organising, movement-building, documenting, theorising and creating art and activism on the impact of apartheid-era criminal law on sex worker lives, we explore questions relating to feminism, gender, power and feminist ways of organising on the decriminalisation of sex work.

Resource allocation for the realisation of women’s rights: Building on previous gender budgeting initiatives in South Africa

South Africa has ratified several international instruments that impose an obligation on the country to allocate sufficient budgetary resources to realise women’s rights. Gender budgeting has been recognised as a means through which states can implement this obligation. South Africa was the first African country to have adopted gender budgeting initiatives and despite being successful in the initial years, the initiatives phased out and did not become integral to the budgeting process. In this article, I propose sustainable gender budgeting initiatives for a better realisation of women’s rights in South Africa. While the article highlights the challenges, I put forward recommendations for integrating gender budgeting in the national budgeting process.

The Imperilled Right to Life, Femicide Crisis in South Africa: Critical Considerations for Legislators

Femicide is one of the most atrocious acts that are principal causes of premature deaths of women and girls who experience gender-based violence in South Africa. These violent acts that are mainly perpetrated by their male counterparts include inter alia, physical, emotional, psychological and economic violence. Constitutionally, everyone has the right to life, however; the mass killings of women in the hands of males, categorically implies clear inadequacies of the state apparatus to guarantee this valuable human right to women and girls in South Africa. Consulted literature reveals that little has been done in terms of scholarly interrogation of the right to life for women against the heinous femicide crimes committed with no regard for women’s human rights in South Africa. Aim: to explore the deprivation of right to life of those who have fallen victims to the national crisis of femicide. Methodology: for the purpose of this article, the author adopted a qualitative research approach where a variety of non-empirical methods and techniques were employed. The methodological inclination entails a desktop analysis by a means of intensive literature study where information produced has been scholarly scrutinised through a process of intellectual analysis, categorisation, integration, reflection and synthesis where meanings were ascribed to the main themes of this article. Findings: It has been deduced that there are legislative shortcomings that need urgent lawmakers’ attention in order to protect women’s right to life. This implies that femicide law is vital to curb the spate of arbitrary killings of women and girls in South Africa. Additional measures to consider include school-curriculum pre-emptive programmes and community-based advocacy programmes to create a society that honours women’s right to life.

Making the best of the best interests: A commentary of AB v Pridwin Preparatory School

The best interests of the child is a key concept in children’s rights law, which is domesticated in part through its expression in s 28(2) of the Constitution of the Republic of South Africa. This concept is not easy to apply due to its complexity and indeterminate nature. In contrast, a child’s right to participate, another important children’s right, is not included s 28 or elsewhere in the Constitution. The Constitutional Court’s decision in AB v Pridwin Preparatory School addressed the important issue of the horizontal application of the Constitution. However, it is the concurring judgment of Khampepe J, which addressed both the best interests of the child and participation in a manner that directs the application of the former and provides a basis for the constitutionalisation of the latter. This note engages with Khampepe J’s judgment to examine its contribution to the substantive application of children’s rights in South Africa, namely, making the best of the best interests of the child by using participation.

Fetching water with a leaking container: Female offenders’ rehabilitation programme limitation, South Africa

Over the three decades, the democratic dispensation ushered in transformative constitutionalism which is an ideal model to anchor constitutionalism and respect for human rights in South Africa. Female offenders are the key informants of this study, as they are the end-users of the rehabilitation programmes that the Department of Correctional Services (DCS) offers. A qualitative technique was used for this study. In-depth interviews were conducted with a total of 10 female ex-offenders, who have been enrolled in rehabilitative programmes were selected using purposive sampling to explore their experiences and or views. The findings of this study indicate that lack of offense-specific programmes s results in recidivism and offenders re-entering the correctional system to repeat the same programmes to meet their parole requirements. Furthermore, highlighted in the findings is the magnitude of the lack of understanding among most criminal justice professionals regarding the actual need for the programmes earmarked for female offenders. The risk factors of female offending identified within this study include poverty, anger, and drug use. Although the DCS has firm policy documents in place, implementing these has failed the offenders and negatively impacted recidivism rates.

Subtitling and the promotion of multilingualism: the case of marginalised languages in South Africa

This article investigates the role that subtitling may play in the promotion of multilingualism in South Africa. After a reflection on the current language-political situation in the country, in particular as it pertains to the public broadcaster, the findings of a pilot study focusing on the role of subtitling in promoting multilingualism and language rights in South Africa are presented. The research involves aspects such as language status, attitudes and acquisition, focusing on two of the more marginalised languages in the country, namely Tshivenda and Xitsonga. It also touches on the impact of subtitling on comprehension.