School of Law (ETDs)

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Browsing School of Law (ETDs) by SDG "SDG-10: Reduced inequalities"

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    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 .
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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
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    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
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    Duties of private persons and the right to equality in South Africa
    (University of the Witwatersrand, Johannesburg, 2023) Finn, Meghan; Albertyn, Catherine
    To what extent does the right to equality (and specifically, the right not to be discriminated against unfairly) give rise to duties that are borne by private persons in South African law? This question is morally, legally and politically freighted in South Africa, marked as the country is by gaping inequality and the legacies of centuries of colonial, apartheid and patriarchal oppression that was sustained by not only the government, but also in private spheres. The overall project of this thesis is to map out and normatively justify South Africa’s approach to private anti-discrimination duties in the Constitution, legislation and emerging doctrine. Most surveyed jurisdictions use a test of publicness as a threshold determination of whether an entity is an anti-discrimination duty-bearer. Conversely, in South Africa, the possible class of duty-bearers is much wider – in principle, all persons as well as the state are duty-bearers. I argue that South Africa’s approach is substantiated by a legal endorsement of substantive equality which requires a historically and contextually sensitive analysis of systemic inequalities that cut across public and private spheres. However, although the class of anti-discrimination duty-bearers is broad, this does not mean that private duties exactly mirror the duties of the state. Instead, the scope for private discrimination to be justified – i.e. found to be fair – is generally broader than when the state is the discriminator. Courts are charged with determining the balance to be struck when private actors’ rights compete. I argue that this balance must be struck within PEPUDA’s section 14 fairness enquiry, which to date has been chronically neglected by litigants and courts
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    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
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    The constitutionality of trophy hunting of threatened or protected listed species in South Africa
    (University of the Witwatersrand, Johannesburg, 2022) Lopes, Rui Jorge Coelho; Cameron, Justice Emeritus Edwin
    Whilst South Africa continues to grapple with its radical levels of social and economic inequality within the country, the lucrativeness of natural resources forming part of the environment as a tool to bringing about redress to such inequalities becomes an ever-increasing consideration. Although there is merit in the statement that the use of natural resources may seek to alleviate social and economic inequality, our courts have already held that the provisions of section 24(b)(iii) of the Constitution of the Republic of South Africa (the “Constitution”) are required to link and intertwine the concepts of conservation with sustainable use and development, for unfettered use of natural resources may not be regarded as sustainable, and will ultimately lead to the decline of ecological conservation and biodiversity. This has, however, contributed to the increase in human-wildlife conflict and the increase in consumptive and extractive use practices in relation to the natural resources of the environment, and the consideration of trophy hunting, and in particular the trophy hunting of Threatened and Protected Species (“TOPS Species”) is not separate n or excluded from this consideration and the ultimate impact such has on biodiversity loss and ecological degradation. The continued race to the bottom of species both locally and globally, coupled with the vested financial gains sought to be obtained from the increased rarity of species subjected to trophy 3 hunts, seeks to bring into question whether the engaging or permitting of the trophy hunting of TOPS Species may fall foul of the provisions of section 24 of the Constitution. Accordingly, this research report seeks to consider the constitutionality of the trophy hunting of TOPS Species and how this practice is required to be viewed through the constitutional lens under which it takes place
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    The need for legal reform to effectively protect the rights of queer-sexual pupils in south african public schools
    (University of the Witswatersrand, Johannesburg, 2022) Booi, S
    The South African community largely consist of marginalized and/or vulnerable groups, one of which is the queer-sexual community. This paper seeks to direct the attention of the social justice advocacy towards the children members of this groups. Within all the marginalized and vulnerable groups, children are the worst off. This study will focus on the children of the queer-sexual group, particularly, public school pupils. The ‘queer-sexual’ concept will be used to loosely mean children who are not heterosexual. Through examples of legal reforms that have proven, to an important extent, effective in protecting queer-sexual adults; and comprehensive research on how basic education schooling environment fails to offer queer-sexual pupils’ substantive equal opportunity to learn, this paper will prove the necessity of statutory intervention to achieve an effective protection of the right to equality for queer-sexual pupils in South African public schools. While the Constitution of the Republic of South Africa (hereinafter referred to as the Constitution) guarantees equal rights for everyone, it is the statutory regulations that give effect to the constitutional broad provisions. To a certain and significant extent, the amended Intestate Succession Act and Civil Union Act have given effect to the protection of adult queer-sexual identities. However, the existing children-centred statutes do not make specific provision for the recognition and protection of queer-sexual children, the result of which is lack of a legal regime that protects queer-sexual identities of children. While a society’s voluntary recognition of the existence and subsequent acceptance or tolerance of queer-sexual children is ideal, this paper will only focus on the necessity of legal mechanisms to protect the rights of minorities. Considering the efficacy of statutes such as the Employment Equity Act that fosters implementation of policies that vehemently prohibit discriminatory conduct and sexual harassment in the workplace, the obedience fostering character of the law makes the law integral to the protection of queer-sexual children