May 16, 2022

Question: Can a refund be requested from a tertiary institution?

Answer: > Most tertiary institutions have policies stipulating how and when refunds will be granted to consumers (“students”). These policies must comply with the requirements of the Consumer Protection Act 68 of 2008 (“CPA”).

>     The CPA allows a general right to cancel a consumer agreement, however, the consequences of such a cancellation might differ depending on, for example, when the consumer agreement was cancelled and the terms and condition of the consumer agreement.

>     This cancellation will have the following consequences:

-      the student remains liable for amounts owed up to the date of cancellation; and

-      the institution may charge a reasonable cancellation fee in respect of services already provided.

>     The calculation of the reasonable cancelation fee depends on various factors, for example, the outstanding amount owing at date of cancellation, the value of the transaction, the duration of the consumer agreement, the nature of the services and so on.

>     The CPA further provides that the cancellation fee cannot be so high that it will basically prohibit a student to cancel a consumer agreement.

>     The circumstances for the refund must also be considered, for example, application fees are non-refundable regardless of the outcome of the application. Application fees are kept to a minimal amount and are used to cover the administration costs of the selection and admission process.

 

Question: Is work experience a legal requirement in South Africa?

Answer: > The unemployment rate amongst youth in South Africa is increasing every year despite the number of graduates.

>     There is no specific legal requirement that a job applicant must have work experience, however, employees are entitled to expect a certain amount of work experience if it is required. For example, it should generally be expected of a Chief Financial Officer of a company to have a certain period of work experience due to the nature of the position and the responsibility that comes with it.

>     However, a concern faced by the youth is that it is sometimes difficult to get entry level jobs as they do not have any work experience.

>     Although not a legal requirement, President Cyril Ramaphosa made a statement in 2018 calling on both private and public sector companies to employ young graduates despite their lack of work experience and he said that "The challenge for unemployed youth is not only one of skills. There are many graduates, who have completed university degrees, who are still unemployed”.

>     The Minister for the Public Service and Administration, Ms. Ayanda Dlodlo, stated in a speech in 2019, that Government is in the process to review regulations for all entry level posts in the public service, which will consider the aspect around work experience required.

 

Question: What rights and remedies are available in respect of teenage pregnancies?

Answer: > The Gauteng Department of Health reported that more than 23 000 girls under the age of 18 gave birth between April 2020 and March 2021, which was 30% higher than the annual average.

>     It is important for teenage pregnant girls to better understand what their rights are. Below are just the few that they need to be aware of:

-      Under South African law, abortions are legal up to 12 weeks of the pregnancy.

-      On the other hand, teenage girls who are pregnant have the right to have a child and get antenatal care without being discriminated against. These services are available at local clinics and are free.

-      Minors under the age of 18 years may get access to contraception without parental consent at local clinics for free without having to be turned away or discriminated against because of their age.

-      Teenage pregnant girls also have the right to be a parent in a safe and healthy environment. For example, a learner may not be expelled from school because they are pregnant.

 

Question: What is discrimination?

Answer: > Discrimination refers to where people or classes of people are treated differently in such a way that it is against the Constitutional right of equality.

> Section 9 of the Constitution provides everyone with the right to equality and not to be unfairly discriminated against based on their race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

> For example, a female job applicant cannot be refused for a position purely on the fact that she is pregnant.

> Any form of discrimination on these grounds in section 9 is generally considered as automatically unfair.

 

Question: Can discrimination be fair?

Answer: > Although section 9 of the Constitution guarantees equality before the law and freedom from discrimination, this right to be treated equally does not mean that everyone should be treated exactly the same. South African courts have held that this right requires people in the same position to be treated in the same manner.

> For example, tax law that stipulates the various tax brackets apply depending on a person's income. There is no “one size fits all” approach providing that everyone must pay the same amount of tax regardless of their income. This differentiation can be seen as fair.

> Other examples of fair discrimination can be seen in the workplace, for example, discrimination based on affirmative action to promote employment equity; or a differentiation between inherent requirements (skills and qualifications needed) for a certain position.

 

Question: Are the human rights of undocumented children in South Africa impacted?

Answer: > Although undocumented children in South Africa are protected by the Constitution, they are unfortunately faced with many challenges. Undocumented children can be described as children who are abandoned or not born from South African citizen parents, and who are faced that their birth not begin registered.

> Section 28 of the Constitution is very clear that the best interests of a child are of utmost important in any matter concerning a child. Section 29 of the Constitutions further provides that everyone has the right to a basic education (which includes children).

> It is from these human rights where two of the most concerning infringements of undocumented children's human rights arise:

- The right to a name and nationality from birth (section 28).

- The right to a basic education and not to be refused reasonable access to education.

> A High Court ruling has declared certain clauses of the of the Admission Policy for Ordinary Public Schools of 1998 unconstitutional. These clauses infringed on children's right to a basic education as it did not allow children to be admitted into a school if they do not have birth certificates or because of them begin non-citizens. This judgment opened the doors to ensure greater protection of undocumented children's human rights.

 

Question: Are mandatory vaccinations infringing on human rights?

Answer: > Section 12(2) of the Constitution provides that every person has the right of security in and control over their body and the right not to be subjected to medical or scientific experiments without their informed consent.

> Although section 12(2) of the Constitution provides a person the right to make decisions on his/her health and not being subject to experimental drugs without their consent, it is subject to limitations.

> Section 36 of the Constitution provides for the limitation of human rights if that limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Therefore, the Government may mandate vaccinations if it is in the best interest of its citizens as it would be a reasonable and justifiable measure in protecting their health and wellbeing.

> It is still unclear if vaccinations will be made mandatory and whether it will withstand the tests for limitation of human rights, but it remains a possibility if it can be justified.