College of Law & Management Studies

The eThekwini Municipality’s Nuisances and Behaviour in Public Places By-Laws of 2015, and the Beaches By-Laws of 2015, seek to regulate and prohibit some of the life-sustaining activities of homeless persons in the city through petty offences. The article considers whether these measures indirectly discriminate against homeless persons, disproportionately impact on them, are contrary to the rule of law, and are an irrational extension of local government powers to develop and maintain law and order within municipal boundaries. Marius Pieterse’s concept of the “right to the city” is relied on to explain why immediate implementation of an adequate and sustainable policy and plan that will give teeth to the local government’s developmental mandate for the homeless, is needed. Lessons learned from advocacy and litigation by other marginalised groups, such as, sex workers and informal traders, are outlined. A short review of recent developments, including litigation, advocacy and local government approaches to homelessness in South Africa, including during the COVID-19 era, is provided. The repeal of the by-laws that effectively criminalise poverty and homelessness is called for.

The effective implementation of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) and the fulfilment of the South African state's obligations in terms of the Convention on the Rights of Persons with Disabilities (CRPD) are dependent on two fundamental tools, advocacy and litigation. This article discusses the outcome of three cases in the Equality Courts and how these cases promote accessibility and access to justice for persons with disabilities. The authors then consider the impact of CREATE, a KwaZulu-Natal NGO's advocacy initiatives to promote the rights of persons with disabilities and the utilisation of the Equality Court to realise those rights. Participants of ten workshops in KwaZulu-Natal identified three barriers to access to justice in accessing the Equality Courts. Firstly, some Equality Courts are geographically (and financially) inaccessible. Secondly, the negative and insensitive attitudes of front-line workers impact on the ability of persons with disabilities to bring equality claims to and access the services of the Equality Court. These barriers constitute discrimination and flout articles 9 and 13 of the CRPD, which require the provision of support for persons with disabilities to access the justice system and the promotion of accessibility to the physical environment, and the provision to them of transportation, information and other services. Thirdly, cultural norms and fears impede access to courts and the agency of persons with disabilities to bring these claims, for example the requirement that traditional leaders provide "permission" to persons with disabilities to sue and a similar requirement of permission from the in-laws of women with disabilities. The article analyses the three barriers identified as inhibiting advocacy and litigation, and explains the implication of these barriers for the state's obligations in terms of articles 5, 8, 9, 12 an d 13 of the CRPD. Recommendations are made on overcoming these barriers.

The lobbying and advocacy predating, and litigation in Springate v Minister of Basic Education Case no 4846/2009 (PMB HC) culminated in a victory for South African deaf learners, namely, to study sign language as a language subject for matriculation in schools. This article discusses the litigation in Springate, focusing on South African sign language as a school subject, and the silence of the Pan-South African Language Board in the litigation, curriculum development and monitoring, enforcement and advocacy by relevant institutions (the South African Human Rights Commission and the Commission on the Rights of Cultural, Religious and Linguistic Communities), the media and civil society. The rationale for legislative and policy choices distinguishing between sign language as a disability right or linguistic minority right is considered, as well as litigation and law reform for the recognition and use of sign language in education and the provision of sign language interpreters in select jurisdictions. It is concluded that the protection of sign language in domestic law and policy, though fragmented, should be read within the growing acceptance globally that sign language is both a right accruing due to disability accommodations, and due to the linguistic and cultural minority status of deaf users of sign language. The current offering of sign language as a language subject in mainstream or full service schools in South Africa is considered to be constrained by the 'reasonable practicable' standard, contrary to the notion of full inclusive education. The continual monitoring of the linguistic and cultural rights of sign language users will hopefully address the shortcomings in the education system, but this will need dedicated funding and political will.

The effective implementation of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) and the fulfilment of the South African state's obligations in terms of the Convention on the Rights of Persons with Disabilities (CRPD) are dependent on two fundamental tools, advocacy and litigation. This article discusses the outcome of three cases in the Equality Courts and how these cases promote accessibility and access to justice for persons with disabilities. The authors then consider the impact of CREATE, a KwaZulu-Natal NGO's advocacy initiatives to promote the rights of persons with disabilities and the utilisation of the Equality Court to realise those rights. Participants of ten workshops in KwaZulu-Natal identified three barriers to access to justice in accessing the Equality Courts. Firstly, some Equality Courts are geographically (and financially) inaccessible. Secondly, the negative and insensitive attitudes of front-line workers impact on...

The eThekwini Municipality's Nuisances and Behaviour in PubIic PIaces By-Laws of 2015, and the Beaches By-Laws of 2015, seek to reguIate and prohibit some of the Iife-sustaining activities of homeIess persons in the city through petty offences. The articIe considers whether these measures indirectIy discriminate against homeIess persons, disproportionateIy impact on them, are contrary to the ruIe of Iaw, and are an irrationaI extension of IocaI government powers to deveIop and maintain Iaw and order within municipaI boundaries. Marius Pieterse's concept of the "right to the city" is relied on to explain why immediate impIementation of an adequate and sustainabIe poIicy and pIan that will give teeth to the local government's developmental mandate for the homeless, is needed. Lessons learned from advocacy and litigation by other marginalised groups, such as, sex workers and informal traders, are outlined. A short review of recent developments, including litigatio...

  When contemplating whether to introduce disability hate crime as a new substantive offence or as a penalty enhancement of existing crimes, legislators should consider the peculiarities of reporting, investigating and prosecuting hate crimes perpetrated against disabled people. This article argues that existing laws on sexual offences, domestic violence, harassment, and unfair discrimination should be strengthened, and research should be conducted to identify the appropriate initiatives to prevent and attend to disability hate crime by and with persons with disabilities. Creating a substantive hate crime based on disability has symbolic value, but should only be considered if the existing challenges to full and meaningful participation by persons with disabilities in investigative and court proceedings are addressed through appropriate procedural accommodations. 

Background: Work has been found to improve health outcomes and increase quality of life. It is also a vehicle through which people develop personally, earn an income and meet other needs; as such work is recognised as a social determinant of health. However, persons with psycho-social disability face many barriers in their quest to achieve equality, thus experiencing ongoing marginalisation and exclusion from full participation in work. Objectives: The aim of this article is to explore the nexus between South Africa’s progressive constitutional and legislative context, employers and the provision of health- and law-related services facilitating participation of persons with psycho-social disability in work. Methods: The authors, with diverse professional backgrounds namely law, psychiatry and occupational therapy, developed a synthesised perspective to highlight issues that require consideration and develop guiding principles from which practitioners can draw to support the particip...

Parents and caregivers of children with disabilities often act as representatives, mediators, and advocates for their children, partly out of necessity and partly due to the bias of adult-centered agency. This chapter engages with the literature on parent-led activism in South Africa. It also engages with broader activist campaigns which, due to their nature, sometimes subsume the voices of grassroots actors and the parents who tirelessly advocate for their children. The context of the use of advocacy and activist measures and an overview of the literature on parent and caregiver uptake of these is discussed identifying a critical loss of political voice of persons with disabilities post-democratic attainment as well as the need to build stronger child participation fora. The study finds that while the narrative of the social and human rights model approaches to disability dominates in mission statements and objectives of disabled persons’ organizations (DPOs) and nongovernmental organizations, the services offered by some of these organizations have a definite medical slant. A brief synopsis of selected barriers that children with disabilities face, primarily in accessing their socioeconomic rights, including their right to education, health, and freedom from violence, is provided. Litigation brought by parents of children with disabilities is analyzed showing that professionals and organizations acting as curators ad litem and amicus curia, respectively, will likely continue to play an enhanced role in South Africa. Where parents and caregivers of children with disabilities are backed up by DPOs with traction in society, they are more likely to be successful in achieving their advocacy goals. Furthermore, the role of law clinics well versed in disability in representing these children, their parents, and DPOs is crucial. Recommendations for future law reform and activism is provided.

According to the Committee on the Rights of Persons with Disabilities, article 12 of the Convention on the Rights of Persons with Disabilities specifies that all people everywhere have a right to equal recognition before the law and that there are no circumstances in which this right may be limited. However, General Comment 1 of the CRPD Committee indicates that globally persons with cognitive and psychosocial disabilities are frequently denied legal capacity. This article sets out to explore the current situation and legal imperatives regarding the legal capacity of persons with intellectual, psycho-social or communication disabilities in traditional courts in KwaZulu-Natal. Traditional courts operate in some rural areas of South Africa and are presided over by a chief and a traditional council. These traditional courts are the closest and cheapest dispute resolution forum in rural areas and utilise restorative justice principles. The legal test for mental and legal capacity in for...

The African Court on Human and Peoples’ Rights (African Court) advisory opinion in Pan African Lawyers Union on the compatibility of vagrancy laws with the African Charter on Human and Peoples’ Rights and other human rights instruments in Africa (PALU opinion) 1/2018 recommends that states amend or repeal vagrancy offences that criminalise the life-sustaining activities of many persons targeted by these laws. The Court’s main opinion is that states’ national laws and by-laws containing vagrancy offences are vague, overly broad and ambiguous, conferring broad discretion on the police for their enforcement and targets people in terms of their status, not their conduct. These laws violate articles 2, 3, 5, 6, 7, 12 and 18 of the African Charter on Human and Peoples’ Rights; articles 3 and 17 of the African Charter on the Rights and Welfare of the Child; and article 24 of the Protocol to the African Charter on the Rights of Women in Africa. The main opinion insufficiently addresses the colonial root of vagrancy. A separate concurring opinion elaborates on the margin of appreciation and good faith principle that allow states to formulate context- specific answers to amend and repeal vagrancy offences. This article identifies the impact of the COVID-19 pandemic on petty offences enforcement and draws lessons from litigation such as Gwanda v The State and interventions from national human rights institutions such as the South African Human Rights Commission; as well as guidance from the African Commission on Human and Peoples’ Rights Principles on Decriminalisation of Petty Offences in Africa (2017). It is argued that specific institutional and non-material interventions are needed to bring the systemic change required, in tandem with the banning of vagrancy offences, for cities that promote inclusion and sustainable development for all.
TITRE ET RÉSUMÉ EN FRANCAIS:
Dépénalisation des délits de vagabondage en Afrique au-delà de l’Avis
consultatif de la Cour africaine: quo vadis?
RÉSUMÉ: Avis consultatif de la Cour africaine des droits de l’homme et des peuples, (Cour africaine) dans: l’Union panafricaine des avocats sur la convenance des lois sur le vagabondage avec la Charte africaine des droits de l’homme et des peuples et d’autres instruments des droits de l’homme en Afrique (avis de l’UPA) 001/2018, recommande que les États modifient ou abrogent les infractions de vagabondage qui criminalisent les activités de survie de nombreuses personnes ciblées par ces lois. L’opinion principale de l’Cour africaine) constate que les lois et les règlementations nationales des États contenant des infractions de vagabondage sont vagues, trop larges et ambigus, conférant un large pouvoir discrétionnaire à la police pour leur application et ciblent les personnes en fonction de leur statut, et non de leur conduite. Ces lois violent les articles 2, 3, 5, 6, 7, 12 et 18 de la Charte africaine des droits de l’homme et des peuples; les articles 3 et 17 de la Charte africaine des droits et du bien- être de l’enfant, ainsi que l’article 24 du Protocole à la Charte africaine des droits de l’homme et des peuples relatif aux droits de la femme en Afrique. L’opinion principale aborde insuffisamment le lien colonial du vagabondage. L’opinion concordante séparée donne des précisions sur la marge d’appréciation et le principe de bonne foi qui permettent aux États de formuler des réponses spécifiques au contexte pour modifier et abroger les infractions de vagabondage. Cet article identifie l’impact de la pandémie de COVID-19 sur l’application des infractions mineures et tire des enseignements de litiges tels que Gwanda contre l’état (Gwanda v The State) et des interventions d’institutions nationales des droits de l’homme telles que la Commission sud-africaine des droits de l’homme; ainsi que des orientations de la Commission africaine des principes des droits de l’homme et des peuples sur la dépénalisation des délits mineurs en Afrique (2017). Il est avancé que des interventions spécifiques à impact institutionnel et non matériel sont nécessaires pour apporter le changement systémique requis, en tandem avec l’interdiction des délits de vagabondage, pour les villes qui promeuvent l’inclusion et le développement durable pour tous.

Branding is an integral part to the success of any and every business. Appropriate brand strategies contribute to brand equity of the organization leading to increased turnover and profits of positive turnover for organizations. Application of properly planned brand naming processes could save SMMEs and reduce the high failure rate experienced by this sector, in South Africa currently. Branding helps businesses to define who they are and guides their overall strategy. Branding strategies begin with the brand naming process. There are scientifically proven models that govern this process which have been used by successful businesses, globally. This study sought to find the current brand naming processes as implemented by SMMEs in the eThekwini Municipality area in Durban, South Africa. This was the first step in developing a model for brand naming for SMMEs in eThekwini. The study therefore used descriptive-exploratory ethos to conduct the research, guided by the epistemological, ont...

In 2014, the World Bank pronounced how the informal sector is probably responsible for half of the GDP in developing countries. This sector can no longer be ignored as it is embedded in most developing countries’ economies. In a country like South Africa, the informal sector is a gateway to economic freedom where the historically deprived groups were left behind and could not participate in the formal economic sectors, as they would have liked. This was due to racially skewed policies of the apartheid regime. The country saw black racial groups marginalised from acquiring appropriate skills, education and resources to allow them to participate in the formal economy. The barrier to entry into formal economies resulted in the significant rise of the informal economy. One of the most prevalent business forms in this sector has been Spaza Shops. In fact, in South Africa, Spaza Shops have become synonymous with the informal sector. Post-apartheid, with the opening of the country’s border...

Sustainable agricultural system contextualizes cooperative practices to reflect competitive economic returns, the continuous supply of essential and life-supporting ecosystem services, and enhanced food security. The study seeks to establish the challenges of small scale farmers in transforming into mainstream sustainable commercial farming and accessing competitive markets through greener economic functionality of the agricultural cooperative. To address these challenging phases and gaps towards growth prospects, this paper provides a comprehensive literature review and phenomenological approach on the underlying paradigm of personal knowledge and subjectivity. The purpose of this paper is twofold: to assess the extent of sustainable socio-economic network influence of Sicabazini farming cooperative on the potential shift in the living standard, and to examine the antecedent economics of environmental farming cooperative challenges to traverse the growth prospects with the context ...

The Apostolic Faith Mission (AFM) in Zimbabwe church is one of the oldest Pentecostal denominations in Zimbabwe tracing its origins as far back as 1915. She claims a membership of two million across the country. Like other Pentecostal denominations that broke away from her, the AFM in Zimbabwe remains exposed to the risks and vulnerabilities of HIV and AIDS. This study made a case for HIV and AIDS mainstreaming in the AFM in Zimbabwe. The study was predominantly qualitative and relied on document analysis. Relevant sources of data were identified and critically examined. The study found that HIV and AIDS mainstreaming among Pentecostal denominations is an uphill task because some Pentecostal preachers claim they can cure HIV and AIDS, yet government and other stakeholders firmly established that there is no cure for HIV and AIDS. Another impeding factor was that HIV and AIDS in some Pentecostal quarters is regarded as a demon. The demon perception encourages stigma and discrimination against HIV infected persons. Although negative perceptions of HIV and AIDS are evident, some Pentecostals still encourage biomedical cure for HIV and AIDS while at the same time they embrace faith as an important aspect for coping with HIV and AIDS. That the AFM in Zimbabwe, like other Pentecostal denominations has comparative advantages that put it at a better position to mainstream HIV and AIDS was firmly established. Although, Pentecostal denominations like other organizations struggle due to loss of members through sickness, death, funerals and reduced performances owing to HIV and AIDS evidence showed that they are slowing up to HIV and AIDS mainstreaming. Owing to stigma

Misconduct has permeated almost every community across the globe and Christian churches have not been spared either. The two basic questions that the current study addresses were what are some of the reported behaviours of male pastors that constitute misconduct in the Apostolic Faith Mission (AFM) in Zimbabwe church?; and is there any policy framework in the AFM in Zimbabwe designed to repair distressed relationships between offending pastors and the church? Results showed that in the AFM in Zimbabwe, pastoral misconduct is seen as a negative force that militates against sustaining harmony in the church. As such, whenever a male pastor commits an act of misconduct, disciplinary action is taken against him. It was also found that constructive dialogue to address misconduct is still a blind spot in the church under review. And because there is no policy framework to amend distressed relationships after administering discipline, social interactions between offending pastors and the church remain antagonistic. In view of the identified problem, this study proposed that the AFM in Zimbabwe might need to embrace a peace building framework because it has the propensity to repair broken relationships and to build friendships, social networks and trust between people. This framework can be instrumental in repairing distressed relations between offending pastors and the church at large. The strength of peace building lies in the values of brotherly love, forgiveness, reconciliation and relationship building, which are compatible with Christianity