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Item Caught in a gap? An examination and human rights assessment of immigration detention laws and practices in South Africa(2013-03-19) Tay, RoannaAbstract: 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 detentionItem 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 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, SinethembaIn 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.Item Environmental spatial planning: achieving sustainable development in sensitive areas(2019) Snyman, Louis Gerhardus; Humby, Tracy-LynnSouth 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.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 investmentItem Critical evaluation of possibility of retirements funds members directly claiming damages from their fund's service providers for loss suffered(2020) Davis, Kent MurlisThis 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.Item A critical analysis of the legal framework relating to cybercrime in Uganda(2021) Adesuyi, DaramolaThis 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 regimesItem 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 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, XolisaThis 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 ActItem Enhancing access to justice in Kenya through clinical legal education(2021) Kotonya, Anne; Du Plessis, RietteThis 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 practiceItem 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 JosephinaMining 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 developmentItem Institutional racism and its oppression of the black employee’s economic freedom(2021-11) Lubile, Nyota C.SInstitutional 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 livingItem 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 democracyItem South Africa’s legal framework to eradicate period poverty(University of the Witwatersrand, Johannesburg, 2022) Jonker, VivienneA teenage girl attempting to complete high school in a low-income setting in South Africa is likely impeded by period poverty. Period poverty is the circumstance of women and girls1 being unable to manage their periods due to their socio-economic conditions. It compromises a plethora of human rights, such as the rights to education and equality. The South African state is legally obliged to ensure, at the very least, that these rights are not compromised. This paper equips the reader with an understanding of South Africa’s legal framework to address period poverty. It tells the story of the state’s measures to address period poverty; identifies their pertinent shortfalls and proposes amendments to the framework. Activists campaigning for the eradication of period poverty are encouraged to advocate for these amendmentsItem Data protection and borderless borders: the effect of the namibian data protection bill on transborder data flows(University of the Witwatersrand, Johannesburg, 2022) Negonga, Paulina Nangula; Klaaren, JonathanData is the sine qua non of the modern economy. The proliferation of digital industries has led to concerns about the misuse of personal data. The resultant risks have sparked ethical and legal concerns across the globe, prompting the adoption of data protection laws. The Namibian constitution guarantees the right to privacy in Article 13, but the country lacks a comprehensive data protection legal framework. The Namibian government issued a Data Protection Bill in 2013.This dissertation critically analyses sections 2 and 48 of the Data Protection Bill dealing with transborder data flows, by employing a two-part theme. In the first instance, the dissertation advocates for a holistic approach that strikes a balance between the individual’s right to privacy and the economic imperatives of transborder data flow. In the second instance, the dissertation investigates how to effectively govern transborder data flow with the continuous blurring of lines between physical and virtual worlds, where data transcends territorial borders with a simple click. The mainstream argument for regulating transborder data flow is that if there are no restrictions on the transfer of data to third-party countries, personal data may end up in jurisdictions with the laxest, or more likely, no data protection standards, just as money ends up in tax havens. To put the oft-quoted tax analogy into context, there may be nothing preventing international data processors from circumventing domestic data protection requirements by gravitating personal data to data havens. Through an elaborate comparative analysis, primarily referencing three instruments: the oecd Guidelines, the GDPR, and the POPI Act; the dissertation looked at how these issues are considered and whether the Namibian Data Protection Bill matches up to these standards. The analysed regulatory regimes varied; nonetheless, a corollary was drawn to adopt a broader EU-style territorial scope. This dissertation recommends that section 2 of the Bill should be amended to conform with Article 3(2) of the GDPR (targeting test/market principle). The chosen approach actively embraces the fourth industrial revolution by allowing data protection to ‘travel’ with personal data wherever it goes in a globalised world.Item The Energy Crisis and Sustainable Electricity: An Analysis of SADC’s role in the promotion of Climate Justice in the Regions’ Electricity Industry(University of the Witwatersrand, Johannesburg, 2022) Kamurai, Rumbidzai LindsayLong having depended on fossil fuels to sustain its socio-economic aims, in the face of rolling blackouts and the emerging renewable energy mix the SADC region is under pressure to implement sustainable practises to meet electricity demands and ensure energy security. All in the hopes of attaining regional climate justice. This report aims to access the regions renewable energy and low carbon emitting alternative options as supported by SADC policy in order to understand how far these policies and potential can address the regions prevalent energy crisis. In so doing ,it outlines what an energy crisis is in the SADC context in order to more thoroughly evaluate SADC policies and projects implemented to meet this crisis. Having accessed the successes and failures of these, it endeavours to suggest possible ways forward in the context of the regions renewable energy potential. This report speaks to the role political will and overt nationalism have played in the regions failed energy policies, how current regional implementation is moving at too slow a pace to match socio-economic development and is thereby worsening the electricity crisis, that diversification of the renewable energy mix has been neglected and the fact that climate change must play a greater role in developing energy policies than it is currently, if climate justice is to be seriously attained. The impact of climate change on the region and its energy options is too great a factor to ignore and is used to back the use of regional SPV over the short-sightedness of hydro.Item The bread cartel: can the conduct of firms in contravention of the competition act be recognised as a violation of human rights?(University of the Witwatersrand, Johannesburg, 2022) Motshidisi , VilakaziSection 4 of the South African Competition Act, 89 of 1998 (‘the Competition Act’) prohibits horizontal restrictive practices in the form of price-fixing, market allocation, and collusive tendering. According to Maphwanya, cartels are among the most egregious forms of competition harm globally. Entities that form cartels frequently weigh the benefits of joining a cartel against the risks of being investigated by competition authorities (Maphwanya, 2017). The Pioneer Foods decision handed down by the Competition Tribunal (‘the Tribunal’) in 2009 charts a complaint lodged in 2006 against various bread manufacturers for allegedly engaging in cartel behaviour; in that these manufacturers engaged in a cartel which had the outcome of fixing the price of bread and dividing markets between themselves. Following the Competition Commission’s investigation and a determination that the bread manufacturers had indeed participated in the cartel, the Tribunal penalised the cartel members by imposing various administrative penalties. The conduct of the bread manufacturers occurred in a South African context, where bread is considered a staple food for many South Africans living in poverty. In light of the aforementioned decision, it is to be considered whether the coordinated conduct of firms seeking to raise prices to maximise on profits at the expense of ordinary and penurious South Africans should be considered a human rights violation. The impact of section 27(1) (b) of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’), which states that everyone has the right to access to food, will be considered explicitly in this report. Furthermore, the obligations of firms found to have violated the provisions of section 4 of the Competition Act are examined in light of whether private persons have constitutional obligations to provide access to food in accordance with section 27(1) (b) of the Constitution. To this end, reference will be made to the provisions of sections 8(2) and 39(2) of the ConstitutionItem Does section 198A (3) of the labour relations act create a sole or dual employment relationship after the period of three months?(University of the Witwatersrand, Johannesburg, 2022) Shezi, Nqubeko; Marumoagae, ClementThis research report is an overview of section 198 of the Labour Relations Act which regulates temporary employment services. It also evaluates the nature of employment of employees who are employed at the instance of the TES after a period of three months from the date of their employment. In 2002 this Act was amended by the Labour Relations Amendment Act which inserted section 198A. The purpose of this insertion was to protect TES employees from being exploited by their employers by making them work for years on a temporary basis. Employees would be deprived from acquiring permanent employment benefits because of the temporary contracts they are working under. However, it has appeared that this amendment did not fulfil its purpose because section 198A(3)(b) leaves employees even more vulnerable as it gives the window period of three months without being clear on what happens to the tripartite relationship between the parties. This section does not explain who the employer after the lapse of three months is, this leaves employees not knowing where they stand with both the client and the TES. Therefore, this research report discusses section 198A (3) of the LRA, with a view of assessing whether the client is the only employer (sole employment relationship) orboth TES and the client are employers (dual employment relationship). Further, this paper gives an overview of the case laws that have dealt with this section in trying to analyse and decide on the intention of the legislature when enacting the Amendment ActItem The impact on the employer’s pension promise to its employees when it transfers its business as a going concern in terms of section 197 of the labour relations act(University of the Witwatersrand, Johannesburg, 2022) Van Zyl, Gottlieb Jan Hendrik; Marumoagae, ClementThe common law does not protect the interests of employers and employees adequately when an employer transfers its business to a new employer as a going concern. Section 197 of the Labour Relations Act 66 of 1995 guarantees transferring employees’ continuity of employment regardless of being transferred to a new employer. Section 197 of the LRA determines that the new employer effectively replaces the old employer. The transfer takes place without the affected employees’ consent. New employers may impose different terms and conditions of employment than what employees received from their old employer. Employees’ pension rights are major employment benefits that may be impacted by the transfer of business. The new employer’s retirement fund may provide benefits that are different to those offered by that of the old employer. While the transfer of business is regulated by labour law, the transfer of affected employees’ pension rights is regulated by pension law. This research report discusses how the application of pension law principles ensures that transferring employees’ pension rights are not prejudiced by the business transfer over which they had no control. In particular, this report examines the legal recourse available to employees when their existing retirement fund benefits are substantially different from what they were offered by the retirement fund which was associated with their old employer.