*Electronic Theses and Dissertations (PhDs)
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Item The use and impact of criminal sanctions for environmental law transgressions in industrial facilities in South Africa: Determining the boundaries of overcriminalization(2022) Strydom, MelissaSouth Africa has many environmental laws that apply to industrial operations, which laws contain numerous criminal offence and penalty provisions. On conviction, criminal liability may be substantial and far-reaching, including maximum prescribed penalties of up to R5 million or R10 million or imprisonment of up to five or ten years, depending on the offence’s nature. The National Environmental Management Act 107 of 1998 also contains instances where additional criminal liability may be imposed. Writers have described these environmental laws as being ‘littered with new criminal offences’. Criminal law theorists express strong views against overcriminalization, describing it as ‘one of the most serious problems facing criminal law’ because although the criminal sanction should be the state’s ‘ultimate weapon against assaults threatening societal coexistence’, it ‘has become a blunt instrument through its indiscriminate use by legislatures as a tool to ensure obedience’. South African environmental law scholars have considered the criminal sanction in environmental law, but not how the landscape of criminal sanctions has changed over the years, how the criminal sanction is used against industrial facilities that contravene such laws, and what impact this has had on the operation of these facilities or effective enforcement. This research frames these considerations in terms of theories of criminalization and overcriminalization, by establishing a normative framework that can be used to assess what behaviour should be criminalized or what may indicate overcriminalization. This study analyzes changes to four selected South African environmental laws and specific offence categories and considers concluded prosecutions relating to such offences. It reflects the perspectives of 32 participants involved with environmental compliance and enforcement in South Africa, gauging their opinions on themes including criminal law as a last resort, certainty and practicality of the law and its frequent changes, the deterrent effect of criminal sanctions, and challenges in criminal enforcement. These aspects are analyzed within the normative framework to answer the overarching research question- whether the use of criminal sanctions for environmental transgressions in industrial facilities in South Africa has led to overcriminalization and when the use of the criminal sanction is appropriate and effective. The study’s recommendations aim to contribute to the more effective use of criminal sanctions through improved legislative designItem A legal analysis of the complexity of race and gender disadvantage in terms of the Employement Equity Act in South Africa(2019) Mushariwa, Muriel TapiwaCenturies of colonialism and Apartheid created a legacy of inequality in South Africa that the democratic Constitution, 1996, seeks to address. The constitutional mandate in section 9 of this Constitution, enacted through the Employment Equity Act 55 of 1998 (EEA), requires designated employers in the public and private sphere to address the inequality in the workplace through the application of affirmative action. The EEA identifies the beneficiaries of affirmative action policies as black people, women and persons with disabilities. It is clear that these constitute three distinct groups, but that it is also possible for an individual to belong to more than one of these collectives. For example, black women fall within two designated groups on the basis of race and gender, and this dual disadvantage creates a multi-layered, unique and complex type of inequality. The main aim of the EEA is to create a representative workforce, and designated employers have a duty to break down the barriers that prevent members of the designated groups from entering the workplace. Once employed, employers need to assist members of the designated groups to progress in the workplace. However, having a representative workforce does not translate into a transformed workforce. It will be argued in this thesis that a transformed workplace is representative, but also requires the breakdown of institutional norms, processes and structures that prevent the progression of members of the designated groups. The question to be asked is whether affirmative action, in its current form, is able to transform the workplace. To answer this question, it is vital that consideration be given, firstly, to the type of substantive equality that is to be achieved in the application of affirmative action. It will be shown that the aim should be a transformative substantive equality of outcome. Focus will be placed on the fact that individuals who fall within the designated groups are not equally placed in terms of their experience of disadvantage. It is submitted that consideration of differing experiences of disadvantage needs to be taken into account so as to avoid the creation of an elite middle class black, and possibly male, group, which benefits from affirmative action to the exclusion of others, thus hampering the achievement of equality in the workplace. This thesis will show that a transformative form of substantive equality of outcome needs to be applied to affirmative action in the workplace. This transformative form of substantive equality includes a situation sensitive approach to the implementation of affirmative action in the workplace. A situation sensitive approach will apply affirmative action strictly on a case by case basis with regard to the demographic profile of the specific workforce, and the employment equity policy of the particular workplace. A one size fits all approach cannot deal with the complexity of disadvantage that needs to be addressed. It will be argued that, besides a situation sensitive approach to race, gender and disability, the issues of social, political, economic and educational disadvantage are factors that should be given consideration in identifying the true beneficiaries of affirmative action. To further illustrate this point, particular attention will be given to women within the designated groups, in order to unpack the nature of disadvantage they experienced in the workplace. Two case studies, focusing on women in male dominated professions, the legal profession and the mining industry, will be used to illustrate this point. This thesis will show that ultimately, the goal of affirmative action must be seen to be to change the workplace by breaking down both the visible and invisible barriers of equality and, in doing so, create an environment where, constitutional values of equality, human dignity and freedom are truly recognized and protected.Item At the crossroads of international human rights law and international investment law: reflection on the right to development in the exercise of expropriation(2021) Kim, Young JaeGiven the current legitimacy crisis of international law, particularly the international law of investment owing to fragmentation and the negative impact of unfettered economic development on the environment and human rights, competing claims between North and South, sovereign states and multinational corporations, and sovereign states and their nationals over development and its benefits must be effectively and legitimately reconciled before any strategy to promote development can be implemented. In this respect, the human right to sustainable development, which this thesis introduced, provides a framework in which the potential competing claims of economic value and human rights value can be reconciled. This thesis considers the interplay of international development law, international human rights law and international investment law, by reference to the evolution of a right to sustainable development. In particular, it focuses on how the international investment law regime has evolved to incorporate human rights and sustainable development, by examining expropriation as a case study. The thesis traces the concept of development as it underlines international development law, and shows how it has moved from ‘orthodox economic development’ to ‘modern human development’ by means of the evolution of the human right to sustainable development. It proceeds to contemplate the content of this human right to sustainable development, with a view to demonstrating its relevance to international investment law. Thereafter, it shows how international investment law has evolved over time, from being narrowly focused on upholding foreign investors’ interests and rights, to taking into account international human rights and the human right to sustainable development. As a concrete example of this shift in international investment law, the thesis then conducts a case study of expropriation, which illustrates the increased interaction between the three clusters of international law. In particular, the protection of foreign investors’ rights and host states’ rights to regulate foreign investment for the purpose of ensuring international human rights and sustainable development are explored through leading cases in international investment tribunals. In conclusion, it is argued that the legitimacy of the international investment law regime can be enhanced through continuing efforts of the international community to harmonise the three clusters of international law within the human right to sustainable development .Item Balancing legality and certainty: the Oudekraal principles and their development(2020) Mahlangu, SiyabongaThis thesis is a study of the Oudekraal principles and their development. In Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA), the Supreme Court of Appeal fundamentally transformed the approach of South African law to the anomaly that an unlawful administrative act may have legal consequences. The court rejected past explanations for this phenomenon, such as the presumption of validity, the distinction between voidness and voidability, the theory of legal relativity and, where the courts have declined to set aside unlawful acts on grounds such as delay, judicial pragmatism. Instead, the court developed a principled approach by which it sought to strike a careful balance between the competing rule-of-law values of legality and certainty. Four principles emanating from this seminal judgment are identified in the thesis. These are that an unlawful act may have legal effect for so long as it has not been set aside; that the legal effect depends on whether the validity of an originating act is a precondition for the validity of the subsequent act; that an unlawful act which compels a person to do or not to do something must be valid, and a person affected by it is entitled to challenge its invalidity collaterally; and that the court reviewing an unlawful act has discretion to refuse the remedy of setting aside even if a ground of review has been established. The thesis investigates how the courts since Oudekraal have interpreted, applied and developed these four principles. It concludes that there is an interplay between the various principles. In this interplay the Constitutional Court has recently tended to emphasise the value of legality over that of certainty, resulting in a lack of clarity as to what it means for an unlawful act to have legal effect prior to its being set asideItem Combating economic inequality: the strategic role of the fund management industry in promoting inclusive development in Nigeria(2020) Yetunde, Omotuyi Opeyemi; Omotuyi, Opeyemi YetundeThere is growing inequality in many countries around the world, and particularly in Nigeria. Recognising this global challenge, the United Nations agreed to seventeen sustainable development goals in 2015. As part of a global agenda to tackle inequality and promote inclusive development, the United Nations agreed to a specific goal to reduce inequalities among and within countries. To enable effective implementation, the United Nations calls for a global partnership, involving the public and private sector, in the achievement of the goals. This thesis highlights the state of economic inequality in Nigeria. In so doing, the thesis finds that the high rate of inequality in Nigeria is mostly as a result of poor social spending on the part of government, as well as adverse corporate impacts, resulting in poor social opportunities and outcomes for citizens. Furthermore, the thesis analysed Nigeria’s legal and regulatory provisions on issues of inequality, highlighting the strengths and weaknesses of the laws. The thesis finds that these laws are grossly inadequate to address the inequality challenges in Nigeria, and a complementary approach to address these challenges is needed. Since the thesis finds a significant increase in the growth of investment funds in Nigeria over the last decade, the thesis proposes the Nigerian Fund Management Industry as an avenue for improving the state of economic inequality in Nigeria, through the implementation of the principles for responsible investment