School of Law (ETDs)

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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
A legal analysis of the complexity of race and gender disadvantage in terms of the Employement Equity Act in South Africa
(2019) Mushariwa, Muriel Tapiwa
Centuries 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.
Environmental spatial planning: achieving sustainable development in sensitive areas
(2019) Snyman, Louis Gerhardus; Humby, Tracy-Lynn
South Africa is at a crossroads. Near stagnant economic growth and rising levels of poverty are at the top of the political agenda. In response, the state has adopted a rapid developmental growth strategy in an attempt to build an efficient economy that makes inroads into reversing a legacy of social and economic marginalisation. In a rural context, this includes supporting large industrial developments which include extractives-related activities that exploit precious natural resources. The status quo has positioned many state-sanctioned development plans on a collision course with the sustainable utilisation of sensitive natural landscapes. It is thus vital to investigate how planners and decision-makers appropriately reconcile the seemingly conflicting environmental, social and economic considerations that constitute ‘sustainable development’. This fine balancing exercise requires tough compromises to create harmony between imperatives deeply embedded in the language of rights. The two intersectional areas of law at the centre of this debate are environmental management and spatial planning; each of which prescribe numerous tools that attempt to operationalise the balancing of the often conflicting imperatives within ecologically and culturally sensitive areas. The difficulty in managing development in sensitive areas is the application of interconnecting, yet often conflicting, legislative and governance systems. Therefore, the key research questions are: How are spatial planning and environmental management paradigms being applied in sensitive areas in South Africa? Moreover, what are the chief factors inhibiting or promoting the effective use of spatial planning and environmental management to achieve a reconciliation between development and conservation in sensitive areas? Lastly, what are the legal dimensions of these questions, if any? The purpose of this study is thus to suggest ways in which spatial planning and environmental management can be better integrated to achieve the desired outcome of sustainable development in sensitive areas. Although this is a pressing issue, little empirical research has been conducted in this specific area and previous work has failed to address the specific legal, institutional and operational obstacles that exist in creating a cohesive and inclusive system.
The authority of the United Nations Security Council to waive the personal immunity of heads of States in the context of international crimes
(2019) Memela, Sinethemba
In 1998, the Rome Statute of the International Criminal Court (ICC) was adopted with the aim of ending impunity for perpetrators of international crimes. Under Article 13(b) of the Rome Statute, if the United Nations Security Council (UNSC) refers a situation to the ICC while acting under Chapter VII of the UN Charter, the ICC is entitled to exercise jurisdiction over the territory and nationals of the relevant State that. In some cases, the referred State is neither a party to the Rome Statute nor has consented to its jurisdiction, and implicated senior officials of the state enjoy immunity. In terms of Article 27 of the Rome Statute, immunity does not bar the ICC from exercising jurisdiction. However, customary international law has historically afforded immunity to senior State officials, such as Heads of State, from prosecution. This dichotomy has been a challenge in international criminal law; specifically, the question of balancing the competing objectives of ending impunity for international crimes while maintaining stable relations and respecting the sovereignty of States by respecting customary international law rules on immunity. This challenge has been compounded by the question of the implication of a UNSC referral, of a non-State party to the Rome Statute, to the ICC on the immunity of implicated senior state officials of that State. Accordingly, this study is primarily concerned with whether, and the extent to which, the UNSC can waive the immunity enjoyed by senior state officials of UN Member States, particularly Head of State immunity, when it refers a situation to the ICC using its Chapter VII powers in the UN Charter. Before dealing with the above, the study analyses the concept of immunity, specifically personal immunity, in international law and the obligations of States to respect such immunity, taking into consideration their obligations under the Rome Statute as applicable.
Balancing legality and certainty: the Oudekraal principles and their development
(2020) Mahlangu, Siyabonga
This 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 aside
Combating economic inequality: the strategic role of the fund management industry in promoting inclusive development in Nigeria
(2020) Yetunde, Omotuyi Opeyemi; Omotuyi, Opeyemi Yetunde
There 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
Critical evaluation of possibility of retirements funds members directly claiming damages from their fund's service providers for loss suffered
(2020) Davis, Kent Murlis
This research report proposes that where a service provider of a retirement fund (such as an insurer or asset manager) exercises a high degree of discretion in respect of the investment decisions it makes for, or on behalf of, a retirement fund, if one has regard to the nature of the relationship between such service provider and the members of the retirement fund, a limited fiduciary duty should be imposed on the service provider in favour of the members. It is proposed that the fiduciary duty should be separate from, and in addition to, the fiduciary duties owed by the board of management and should also differ in its content. Further, it is submitted that to the extent a service provider breaches this duty; the members should have a claim against such service provider. Due to the fact that the benefits payable to a member only vest in terms of the rules, any claim for damages would likely occur before a member's right to benefits vests. A member would therefore need to claim for prospective damages and argue that once their benefit vests, they will suffer a loss. Despite the courts not recognising claims for prospective loss, it is submitted that in the case of members, compelling reasons exists to allow a claim for prospective loss provided the claim for prospective loss is established as a matter of reasonable probability.
A critical analysis of the legal framework relating to cybercrime in Uganda
(2021) Adesuyi, Daramola
This dissertation examines the legal framework relating to cybercrime in Uganda and its effect on the enforcement of its terms. Investigating this issue is crucial in the wake of the rise in global interconnectivity as a result of the relative advances in technology, which challenge the application of the old standard of classification and investigation of traditional crimes. Unlike the advanced nations, the current laws regulating criminal conduct in most developing nations today are ill-equipped to cope with these emerging cybercrimes. Therefore, this dissertation argues that Uganda’s extant legal framework is manifestly inadequate to protect individuals from the threats resulting from cybercrime effectively. This view is held based on an analysis of the major procedural challenges and issues in Uganda today and a review of the current legal regime. This dissertation contends that, contrary to the common belief, merely enacting legislation, which is a ‘cut and paste’ of foreign cyber laws, does not automatically resolve issues related to cybercrimes in Uganda. Furthermore, the dissertation argues that useful lessons can be obtained from an effective legal regime based on insights from the Council of Europe Convention on Cybercrime, and South Africa. Similarly, other pragmatic ways of effective protection against cybercrime in Uganda are suggested to improve awareness and scholarship, strengthen law enforcement agencies and the judiciary, and improve cooperation with international and regional cybercrime regimes
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 Jae
Given 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 .
Enhancing access to justice in Kenya through clinical legal education
(2021) Kotonya, Anne; Du Plessis, Riette
This thesis examines the endeavours of university law clinics towards enhancing access to justice in Kenya. It isolates the social justice function of clinics in countries with a pressing access to justice need as that of serving the indigent and orienting lawyers towards social justice in society. In exploring the interface between access to justice and legal education, it analyses the legal frameworks, distribution, structures, settings and projects of university law clinics in Kenya in relation to literature on clinical legal education (CLE). The thesis centres on the social justice mission of CLE as a way of aligning legal education with the country’s transformative constitutional framework. In this way, it capitalises on the clinics to foster transformative legal education. The thesis makes an original contribution to knowledge when it addresses the research gap on clinical legal education in Kenya and presents empirical data on the current forms of clinical programs in law schools in the country. It incorporates the voices of clinicians and student leaders and presents the challenges they encounter in their attempt to use clinics to enhance access to justice for indigent persons. The emphasis on social justice as well as the comparison with South Africa’s original clinics differentiates this thesis from the growing body of literature that centres on the pedagogical aspects of CLE. The thesis applies grounded theory, a vigorous qualitative research method to guide the collection and analysis of data. The theoretical explanation of the factors that enhance and those that resist the role of clinics in enhancing access to justice is grounded in data which was collected from purposively selected law schools. The data, obtained inductively from the interviews and focus group discussions, is also used to develop a theoretical explanation of the use of university law clinics to enhance access to justice in a transformative constitutional context. The thesis establishes a nexus between legal education and transformative constitutionalism as well as between CLE and transformative legal education. It begins by demonstrating the absence of a suitable framework for investigating the factors that resist or enhance clinics’ contribution to access to justice in a transformative constitutional setting. The thesis then locates clinics in Kenya in the context of the development of the legal profession, legal education and the constitutional history of the country. It develops a legal and institutional framework made up of a transformative constitution and legislation governing legal education, the legal profession and national legal aid schemes. Chapter three proceeds to apply this framework to Kenya and finds a legal framework based on strong constitutional foundations that in certain instances is also fragmented, inconsistent and marred by gaps. The exploration of the CLE experiences in the country is presented in chapter four. These find the curriculum, law students, academic staff and the place of clinic in the university as central to determining the form and structure of CLE in the respective institutions. The forms of clinics are reflective of the broad definitions of CLE that include Street Law and skills courses. They provide evidence of clinics that are skewed towards the social justice mission of CLE. The data also yields aspects of clinics that influence their role in access to justice. The thesis finds that clinical practice in Kenyan universities takes the form of both curriculum-based and extracurricular clinics, with the latter bearing a strong social justice orientation and the former a pedagogical one. The focus of CLE is inclined towards social justice, while its pedagogical mission remains underutilised. The thesis analyses factors that undermine the promotion of access to justice through CLE in Kenya. Identifying shortfalls in clinical practice in the country, it deduces that the clinical practices are indeed CLE but at its nascent stages. The findings are in harmony with literature that considers the twin missions of CLE as inseparable orientations that are not mutually exclusive. They show the Constitution of Kenya 2010 and legal aid legislation as providing further impetus for CLE beyond their original goals at inception. However, this impetus is not reciprocated by the policy and legal framework for legal education. In considering the dysfunction of the legal profession as the dominant institution in providing access to justice, the thesis deliberates on university law clinics as an institutional bypass for the provision of access to justice for the indigent in the country. It proposes university law clinics as the theory of change for the legal profession. The thesis makes suggestions for future research on the understanding that further steps need to be taken in Kenya to optimise both social justice and pedagogy that are the twin missions of clinical practice
The extent of protection provided by section 76(4)(a) of the companies act, 2008 to directors against personal liability for breaches of sections 76(3)(b) and (c) of that act
(University of the Witwatersrand, Johannesburg, 2021) Beja, Xolisa
This research report examines the extent to which section 76(4)(a) of the Companies Act, 71 of 2008 protects directors against personal liability for breaches of their duties to act in the best interests of the company and with due care, skill and diligence. The essential substantive elements of s 76(4)(a) create (as a minimum) a business judgment rule. Generally, that rule provides a director with a defence against liability for a breach of his duty of care, skill and diligence if, when he acted (or omitted to act), he did so reasonably, honestly, with no self-interest and in the interests of the company. In conducting an analysis of s 76(4)(a) as an embodiment of features of a traditional business judgment rule, this report considers (among other things) the legal nature of the protection created by s 76(4)(a), the requirements which a defendant director must meet in order to enjoy the protection of s 76(4)(a), the allocation of the burden of proof for the application of the provisions of s 76(4)(a), and a brief consideration of how a similar rule in Australia is drafted and has been applied in practice by courts there. The report concludes that, unlike the Australian counterpart, the provisions of s 76(4)(a) create a protection for directors that is more than the protection that is provided by a traditional business judgment rule. This conclusion is based on the extensive nature and scope of authority and powers which s 66(1) of the Act grants to directors. The substantive configuration and extensive ambit of s 76(4)(a) are thus anchored in, and justified by, s 66(1) of the Act and the carte blanche which the latter section grants to directors. Consequently, the protection given by s 76(4)(a) to directors is unusually wide, inasmuch as it shields directors against personal liability for breaches of a myriad of their duties and against liability risks arising from or created by the extensive powers and authority which s 66(1) of the Act gives SA directors. In the same breath, however, s 76(4)(a) manages to make directors appropriately accountable to the company’s stakeholders, in keeping with some of the fundamental objectives and purposes of the Act
Effects of donor funding on the HIV/TB programme outcomes in South Africa
(University of the Witwatersrand, Johannesburg, 2021) Sokhela, Cleopatra Zinhle; Saruchera, Fanny
There has been decreasing donor funding for the past years, especially in developing countries. With the global economic crisis fuelled by the COVID-19 pandemic, there has been mounting pressure on governments and NGOs to sustain healthcare services and the HIV/TB programme implementation. Despite the efforts made in curbing HIV and TB in South Africa, the country is still struggling to meet its planned HIV and TB programme outcomes. The purpose of this study was to establish the factors that influence donor funding for HIV/TB programmes in South Africa and understand how NGOs utilise donor funds to achieve HIV/TB programme objectives. The study intended to determine the factors that influence donor funding for HIV/TB programme in South Africa; to establish how NGOs utilise donor funds to achieve HIV/TB programme objectives in South Africa; to establish strategies to sustain South African NGOs beyond donor funding, and to propose HIV/TB programme implementation strategies for NGOs in South Africa. The study was guided by the donor and recipient models intended to establish the relationship between donor interest, political interest, NGO funding, and HIV/TB programme outcomes and establish if NGOs sustainability is influenced by decreased donor funding. A quantitative and deductive study was conducted using an online survey. Data was collected from 308 respondents drawn from 30 donor-funded organisations across South Africa. The study's key findings revealed that donors give generously for the HIV/TB programme with no expected returns. Poor HIV/TB programme implementation by NGOs and lack of social impact affects future international funding opportunities. The study further established a positive relationship between recipient needs, NGO funding, and HIV/TB programme outcomes. The paper also concludes that NGO sustainability is not affected by declining donor funding, but a strong positive relationship between NGO leadership capacity and NGO sustainability was identified. A significant portion of respondents indicated that sustainability planning, government co-funding, diversified revenue-generating strategies, meaningful stakeholders' engagement and NGOs leadership capacity development were essential to ensure better HIV/TB programme outcomes and NGOs' sustainability beyond donor funding. In order to enhance the sustainability of donor-funded organisations and programme outputs, the study recommended the need for donors to review regulation governing donated funds utilisation; developing sustainability plan at the beginning of the funding cycle, NGOs to review their business models and NGO leadership capacity development on resource mobilisation and financial management. Future studies could focus on South African NGOs providing HIV/TB services readiness to transition from donor funding and evaluating the most effective revenue-generating strategies that NGOs can implement in South Africa
Balancing the Necessity of Mining Activities and Community Participation in the Pursuit of Environmental Protection
(University of the Witwatersrand, Johannesburg, 2021-01-31) Laka, Tshepiso Josephina
Mining activities result in a myriad of e nvironmental and health impacts. These issues remain to be primarily ignored by mining companies and government departments. The need for public participation in relation to environmental awareness and protection must be taken into account within mining affected communities, u nfortunately, most mining communities are often not aware that they are entitled to an environmental right under the Constitution of the Republic of South Africa, 1996 (the Constitution). Communities suffer from environmental degradation that is inextricably linked to their quality of life and their well- being. Most mining companies fail to protect mining communities from harmful environmental impacts resulting from mining activities. South Africa depends heavily on mining sectors for its socio-economic advancement to such an extent that many millions of people rely on the revenue generated from mine. It is crucial that while mining sectors are pursuing economic developments, the environment, human health and social issues must be afforded the required protection. As such, this thesis explores the environmental harms associated with mining and the importance of meaningful participation. Notably, these environmental injustices can be mitigated by implementing the already established environmental legal framework. This thesis will further critically discuss how mining companies fail to encourage and promote environmental health and wellbeing by not only enhancing public participation within mining affected communities but to also provide communities with concrete measures to promote the ecologically-centred sustainable development
Institutional racism and its oppression of the black employee’s economic freedom
(2021-11) Lubile, Nyota C.S
Institutional racism can be identified as a prominent factor, amongst numerous others, in the slow progression of the black population in the South African workplace. Consequently, due to the perpetual undermining of the black race and their professional capabilities, this leads to the rather slow (socio-) economic growth and progress of the black workforce and population in the long run. This report considers the extent to which institutional racism still has an impact on the (socio-) economic emancipation of the black worker which ultimately limits their standard of living. The origin of institutional racism from the colonial and apartheid era lay the foundation for the report, the effectiveness of corrective policies and legal frameworks are explored together with the elements of Critical Race Theory and how they are relevant to the issues pertaining to institutional racism in the workplace. Two areas that are specifically looked into are institutional racism against women and black women particularly as well as its presence in the legal profession. From a statistical perspective, theory is translated into numbers – the findings support and demonstrate how indeed there is a large gap between the saturation of the white race and the black race at different skills levels in the workplace as well as in business management and ownership in comparison to the economically active population of each race group. This corroborates the findings of the literary research in that systemic racism is still a major barrier to the elevation and progressions of the black population in the workplace and ultimately in their general standards of living
A comparison between internet anti-money laundering statutes and preventative mechanisms in South Africa
(University of the Witwatersrand, Johannesburg, 2022) Maistry, Kireen
South Africa has come a long way since the apartheid era, transitioning to a country of democracy for its people and advocating for non-violence. However, struggles persist in inequality, poverty, unemployment and crime. Due to the social, economic, and political challenges and allegations of continuous corruption the country is often perceived negatively. Despite a growing body of laws, regulations, and systems geared to fight crime, the crime rate remains high and prosecution low. As a result, South Africa has become a soft target for criminals who conceal the proceeds of crimes through money laundering. Through money laundering, criminals have exploited the banking and financial sector, the casino and gambling industry and the real estate business in South Africa. As a consequence of the onset of money laundering, the South African government has had to enact legislation and regulatory bodies in each sector to detect, prevent and prosecute organised crime. The latest challenge to combating money laundering is the advent of the internet which has created newer, faster and more evasive channels for criminals to launder money via cyberspace. Given that the internet and technology are ever-changing, historic anti-money laundering laws and mechanisms may not be effective enough to combat the crime of ‘cyberlaundering’. This thesis discusses pre- and post-internet methods of money laundering in the banking, casino and gambling and real estate sectors in the South African economy and focuses on whether current legislation and mechanisms are effective enough to combat developments in money laundering
Does international commercial arbitration provide an effective remedy? as approved by postgraduate studies committee
(University of the Witwatersrand, Johannesburg, 2022) Naidoo, Prenisha; Schlemmer, Engela C.
The following research report aims to establish whether international commercial arbitration provides an effective remedy to international contracting parties that have elected to have any dispute that arises between them resolved by means of arbitration. The report emphasizes the practicality of international commercial arbitration by accentuating the main advantages that the procedure has to offer to international contracting parties. It also brings to light the challenges that are associated with effectuating and enforcing an international arbitral award. These challenges have the potential to affect the efficacy of the arbitral award in its entirety. The report then focuses on the role and importance of international instruments, such as the New York convention, in international commercial arbitration proceedings, particularly when it comes to the enforcement of international arbitral awards. The report further examines the fruitfulness of such international instruments as well as the benefits that are associated with South Africa being a signatory to the New York convention. The report finds that international treaties and conventions instil credence to international commercial arbitration as it ensures that an effective enforcement mechanism is available for international contracting parties. For international contracting parties, this ensures that parties are able to attain the relief set out in the arbitral award. Thus, rendering the award effective. However, there are certain inadequacies inherent in the New York convention that have surfaced over the years. These inadequacies have the potential to affect the efficacy of international arbitral awards. For instance, the New York convention bestows upon the national courts of contracting states, the ability to set aside and refuse recognition and enforcement of an arbitral award on grounds that the award is non- arbitrable or that the recognition and enforcement of the award will go against the public policy standards of that specific region. The New York convention does not define what constitutes arbitrable matters and neither does it circumscribe the limits on the public policy exception. Therefore, national courts of contracting states are free to interpret the limits of these grounds themselves. This has implications for contracting parties to an arbitration agreement as apartfrom creating uncertainty, it also affords national courts a certain degree of leverage to set aside and refuse recognition or enforcement of foreign arbitral awards on grounds that may be unbeknown to the contracting parties.
The impact of covid-19 on international commercial contracts, as approved by postgraduate studies committee
(University of the Witwatersrand, Johannesburg, 2022) Naidoo, Kammani; Schlemmer, Engela C
The Covid-19 pandemic had an immense negative impact across all industries and businesses in South Africa and internationally. The pandemic impacted many international commercial contracts, and this was due to the necessary precautionary measures and restrictions that were introduced and imposed by the South African governments, as well as governments around the world, to curb the spread of the virus. These measures included restrictions on domestic and international travel, quarantine measures and bans on imports and exports of goods and services, which severely restricted international trade. On a global level, the new precautionary regulations and measures imposed by various governments to curb the spread of the Covid-19 virus, has left many people, businesses and industries worldwide in a position where they are faced with numerous challenges, such as, being unable to carry out their daily functions and in particular being unable to perform their contractual obligations in terms of international commercial contracts. Failure to perform contractual obligations results in breach of a contract and undesired claims for damages. This research report will address the impact of Covid-19 on international commercial contracts, from a South African perspective, and will focus particularly on the performance of contractual obligations in international commercial contracts for the sale of goods. The research report will examine the consequences that arose, from the various actions that the governments around the world undertook and imposed to curb the spread of the Covid-19 virus. In addition, the research report will assess how the UN Convention on Contracts for the International Sale of Goods (CISG), which is the main legal instrument in harmonising and governing international commercial contracts, can assist parties who enter into international commercial contracts, as well as other legal instruments. Additionally, the research report will focus on whether contractual parties who enter into international commercial contracts can be exempt from liability in a situation where either contractual party fails to perform and breaches a contractual obligation, in light of the current pandemic. The report will also consider the force majeure and hardship clauses, as well as various other clauses and whether parties to a contract may rely on these clauses as grounds for non-performance of contractual obligations in international commercial contracts. Lastly, the research report will suggest what the impact of Covid-19 means for drafting future international commercial contracts and ways forward
South African Climate Change Regulation: Towards Climate Change Mitigation
(University of the Witwatersrand, Johannesburg, 2022) Manzella, Marco John
Climate change is the change in earth’s weather and climactic conditions due to an average rise in the temperature of the earth’s surface. This temperature increase has principally resulted from an exponential increase in greenhouse gas (GHG) emissions resulting from anthropogenic activity. The consequences of climate change are experienced differently by different regions and the effects can reach across the globe ranging from minor to catastrophic proportions depending on the location of a country. The international response to this crisis has accelerated significantly since the early 1990s and the formation of the United Nations Framework Convention on Climate Change (UNFCCC). South Africa acknowledges the threat of climate change; however, the country has a strained relationship with climate change mitigation as one of earth’s highest emitters of GHGs per capita due to its dependency on coal combustion. This dependency is further complicated by the sector’s status as a primary employment and socio-economic driver domestically. These competing priorities impact upon South Africa’s climate change response. South Africa has advanced climate change mitigation to a limited extent through the slow development of a domestic regulatory framework. The mitigation effort is hampered by some shortfalls in the domestic regulatory framework. The country currently lacks climate change law. This paper seeks to determine how capable South Africa’s domestic framework is of facilitating climate change mitigation. It espouses the view that a robust and comprehensive regulatory framework is necessary for meaningful domestic mitigation action. It emphasizes the importance of regulatory certainty – where adoption and enforcement of the framework are concerned. The current regulatory framework – despite its fragmented, ad hoc nature – is already advancing limited mitigation action. This limited success can be amplified by the adoption of a better developed, more comprehensive framework
"Are all things equal? Operational considerations in the integration of deemed employees into workplaces"
(University of the Witwatersrand, Johannesburg, 2022) Otten, Rosita Joanne; Mushariwa, Muriel
This research report is a policy-based study of the regulation of temporary employment services in South Africa. It is set against a contextual background of the development of Labour Brokers in South Africa as well as a contextual understanding of the regulation of temporary or atypical employees under International Labour Organisations Standards (ILO). The scope of this research is limited to only considerations of ILO Standards and does not consider a comparator of other countries. Future research could take it further in this regard to measure how Labour Brokers are offered labour law protections globally. This research report considers the development of labour law in South Africa and how the changes in the South Africa’s labour law policy have introduced mechanisms to afford and ensure greater protection of this vulnerable employee. The research reviews the recent legislative overhaul, in consideration of having the purpose to offering progressive protection to various atypical forms of employees and specifically a temporary employee who attains a deemed employment relationship status. The research aims to assess the extent to which the amendments to the South African labour legislative framework has been able to achieve its desired aims, by first considering how the provisions relating to temporary employment services, should be interpreted and applied. Secondly reviewing various operational considerations that impact the full integration of the deemed employee into the workplace in order to ensure on the whole not less favourable treatment and finally in having reviewed such operational considerations, assess and critique the impact these amendments have achieving protection of this vulnerable class of employee
The evolution of the test for rationality under the legality principle in South African administrative law
(University of the Witwatersrand, Johannesburg, 2022) Bekker, Chrisna Jooste; Hoexter, C.
The principle of legality was confirmed early in South Africa’s constitutional era as a product of the rule of law and the minimum standard to which the exercise of public power must be held to account. It has become an indispensable tool and ‘safety net’ to review administrative decisions where the action which it reviews does not constitute administrative action as it is defined in the Promotion of Administrative Justice Act, 2000. Rationality has emerged as the test applied in such reviews of whether the means applied to reach a decision are rationally related to the ends (the decision). Rationality has however come to comprise elements such as procedural fairness and -rationality that are not always consistently defined or applied by the courts. This variability and unpredictability lead to uncertainty in administrative law review which has the effect of causing the ‘safety net’ to stretch too far – by undermining the rule of law, the principle of legality itself and constitutional democracy

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