School of Law (ETDs)

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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
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
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
Five brigade atrocities in Zimbabwe: categorising international crimes and evaluating the criminal liability of perpetrators
(University of the Witwatersrand, Johannesburg, 2023) Malunga, Siphosami Patrick; Moyo, Khulekani
In virtually every village in the Zimbabwean provinces of Matabeleland and parts of Midlands, there are reminders of heinous atrocities perpetrated against defenceless civilians by the government between 1982 and 1987. These atrocities, commonly known as the ‘Gukurahundi,’ a moniker for the army brigade that committed them, resulted in the deaths of an estimated 20 000 Ndebele civilians. Many of those killed were abducted and forcibly disappeared, and their bodies thrown into mine shafts or buried secretly in shallow graves. Others were publicly executed and buried in mass graves. Thousands more were starved, tortured, raped, unlawfully detained, and their homes and belongings destroyed during the Gukurahundi operation. Survivors continue to bear physical, emotional and psychological scars while alleged high- level perpetrators continue to rely on their political incumbency to enjoy impunity and remain shielded from accountability for their crimes. This doctoral thesis addresses the existing literature gap on the legal classification of the Gukurahundi atrocities. It seeks to determine whether atrocities committed by Five Brigade of the Zimbabwe National Army (ZNA) and other security agencies against civilians constitute international crimes of genocide, crimes against humanity and war crimes. It assesses the application of international criminal andhumanitarian law in Zimbabwe and investigates the status of the Matabeleland Conflict under international humanitarian law. Further, it explores whether alleged perpetrators can be held individually criminally responsible for Gukurahundi atrocities under international law. Finally, the thesis is expected to contribute to understanding the legal nature of Gukurahundi atrocities, the role of alleged perpetrators and the victims’ prospects for justice and accountability
Gang violence or the continuation of an armed conflict by other means: the application of international humanitarian and criminal law to gangs as an organized non-state armed group
(University of the Witwatersrand, Johannesburg, 2023-06) Pose, Jorge Claudio Lema; Swart, Mia
The purpose of this thesis is to develop the applicability of International Humanitarian Law and International Criminal Law to a specific organized criminal group (the maras or gangs in Central America).4 This thesis considers that this criminal actor (the maras) within the gangs presents many similar aspects to traditional non-state organized armed groups. Furthermore, the thesis will explain how the maras have instrumented a level of violence that, in practical terms, has reached the threshold of an armed conflict: in summary, International Humanitarian Law and International Criminal Law can be applied to the maras
Procedural access to justice: enhancing access to the superior courts of Zimbabwe through reform of selected rules of civil procedure
(University of the Witwatersrand, Johannesburg, 2023) Matsikidze, Rodgers; Theophilopoulos, Constantine
This thesis argues that the rules of civil procedure can enhance or inhibit access to the courts. Secondly, it argues that there is a nexus between the right of access to the court and the rules of civil procedure, in that rules of civil procedure play a critical role in providing a procedural pathway to court. Thus, in providing a mechanism for realising substantive rights, the rules of procedure become central in ensuring access to court and justice. On the other hand, this thesis argues that the rules of civil procedure governing security costs, leave to appeal and appeals, and referral of constitutional matters (herein referred to as selected rules of procedure) restrict access to court and, in turn, access to justice. This thesis argues that blanket security for costs rules restrict access to the court and can result in litigants being required to tender inhibitive security for costs. The thesis further proposes that the requirement for security for costs must be restricted only to frivolous and vexatious civil claims and appeals. In addition, it is also argued that the strict application of the rules governing appeals in the Superior Courts of Zimbabwe, which result in appeals being struck off the roll for being defective, is undesirable, and there is a need to balance the need for compliance with the rules of procedure and emphasis on unduly technical requirements which do not enhance access to justice. Thus, the thesis argues for the robust application of rules of governing appeals to ensure that appeals are largely dispensed on merits. Further, the thesis argues that the requirement for leave to appeal from the Labour Court to the Supreme Court and from the Supreme Court to the Constitutional Court is undesirable as it discriminates in favour of direct appeals from the High Court to the Constitutional Court of Zimbabwe. Moreso, the requirement for leave to appeal from the Supreme Court to the Constitutional Court restricts access to justice as it unnecessarily increases litigation costs. It is, therefore, argued that the reform of leave to appeal rules, particularly removing the requirement of leave to appeal from the Labour Court of Zimbabwe to the Supreme Court of Zimbabwe, increases access to justice and affords a litigant an equal opportunity as a litigant appealing from the High Court to the Supreme Court who does not require leave to appeal. In addition, it advocates for automatic appeals to the Constitutional Court of Zimbabwe. Furthermore, this thesis proposes widening the appeal jurisdiction of the Constitutional Court from only being restricted to hearing constitutional matters to also hearing a matter raising an arguable point of law of general public importance. In addition, this thesis argues for more direct access, particularly on constitutional issues, as an avenue to increase access to justice. Additionally, the thesis identifies the rules governing the referral of constitutional issues from the subordinate courts of the Constitutional Court as unduly viii restrictive. There is, therefore, a need to simplify the referral of constitutional matters procedure to increase access to justice by referring constitutional matters to the Constitutional Court. Thus, this thesis focuses on the impact of the selected rules of civil procedure in the Superior Courts of Zimbabwe on court access by litigants, represented or unrepresented. The Superior Courts of Zimbabwe at the centre of this thesis are the High Court, the Supreme Court and the Constitutional Court. The thesis concludes that in inhibiting access to the Superior Courts of Zimbabwe, the selected rules of procedure contravene section 69(3) of the Constitution of Zimbabwe, which provides for the right of access to the court. It is evident from the comparison made in this thesis that the framing of selected rules of procedure in South Africa and Kenya enhances access to the courts and justice. Thus, the thesis proposes reform of the law and selected rules of procedure to enhance access to the Superior Courts of Zimbabwe. The reform proposal to the selected rules of civil procedure is accompanied by a draft of reformed selected rules of civil procedure and some proposed amendments to enabling Acts of Parliament and the Constitution of Zimbabwe
Recognising the racial past and discriminatory present of international law – the international community’s response to the Russian invasion of Ukraine
(University of the Witswatersrand, Johannesburg, 2024-02-12) Razzaki, Usaid Mutjaba; Madlingozi, Tshepo
On 24 February 2022, Russia unilaterally invaded Ukraine without any prior United Nations Security Council (‘UNSC’) approval. Within ten days of this invasion, the United Nations General Assembly (‘UNGA’) adopted resolution A/49/L.1 condemning Russia’s invasion of Ukraine and demanding the immediate removal of Russian troops from Ukrainian territory. Moreover, on 28 February 2022, only four days after the initial invasion, the International Criminal Court’s (‘ICC’) Chief Prosecutor Karim A. A. Khan of the United Kingdom decided to ‘open an investigation into the situation of Ukraine’. In the Middle East, territorial wars, or wars relating to borders have been fought between Palestine and Israel since 1948. There is evidence that an investigation was launched into the case of Palestine on 03 March 2021. But my criticism is this; whereas it took the ICC merely 4 days to launch such an investigation in Ukraine, it took the ICC nearly 70 years to do the same in Palestine. The UNSC is reduced to a council where political decisions are influenced based on gratuity of allies and own political agendas where the international law framework itself provides for a loophole for international law to be manipulated, construed, and controlled to the whims and fancies of the powerful (big 5) nations through the use of the veto power. Then, I argue, international law as it currently stands, is in need of serious remodelling.
Rights-based litigation techniques and the judiciary in post- 1994 South African socio-economic rights jurisprudence
(University of the Witwatersrand, Johannesburg, 2022-03-31) Mogadime, Mpho
This study focuses on the vindication of socio-economic rights and the role of judges, especially in the Constitutional Court, in giving meaning to and realizing socio- economic rights in line with the transformative goal of the Constitution. The study traces the socio-economic rights jurisprudence of the Constitutional Court through its first, second, and post-second ‘waves’ or phases in order to lay a foundation of the attitude and approach of the Constitutional Court to socio-economic rights interpretation. The study further looks at the critique against the approaches of the Constitutional Court and finds that the Court is placed in a good position and is empowered to set a normative framework for the realization of socio-economic rights. The normative framework is based on the transformative goals of the Constitution and functions to provide guidance to the Court and the State in general on interpreting and realizing the political aims of socio-economic right
The capacity of the WTO to assist Ukraine in its war against Russia: an assessment of sanctions and other tools
(University of the Witwatersrand, Johannesburg, 2023) Blumenfeld, Dalton
The development and application of the precautionary principle in south african environmental law
(University of the Witwatersrand, Johannesburg, 2023-02-15) Sibeko, Ziyanda Kgotso; Murombo, Tumai
The Precautionary Principle has advanced considerably as an international environmental principle over the past few years, and it has been enacted in the international and domestic laws of several countries, including South Africa. Furthermore, the PP has been applied and tested in various judgments in different jurisdictions and fora. This research report seeks to interrogate the codification of the PP in international environmental conventions such as the Rio Declaration on Environment and Development, the United Nations Framework Convention on Climate Change, and the Vienna Convention on the Protection of the Ozone Layer and other international statutory instruments. While this study does not purport to perform a comprehensive comparative analysis of other domestic environmental law frameworks, it does refer to environmental law frameworks in Canada, Australia, and the Netherlands with the overarching goal of drawing comparisons and eliciting best practises that may inform amendments to South Africa’s legal framework. The report also tracks and investigates the impact of the PP’s incorporation into South African statutes such as the National Environmental Management Act 107 of 1998 and its application by courts and tribunals, including the Constitutional Court of South Africa. Lastly, the study draws conclusions from the findings and makes recommendations for how policymakers, legislators, and our courts can better use and apply the PP as an internationally recognised principle of environmental law to advance environmental sustainability and management.
The Legal Consciousness of Women as Influenced by Policing of Rape Cases
(University of the Witwatersrand, Johannesburg, 2023-07-30) Blunden, Jessica; Madlingozi, Tshepo
This report aims to interrogate the relationship between women and the law in South Africa and how this relationship is informed by the way in which the South African Police Service (SAPS) handles cases of rape, specifically those where the victim knows the identity of their rapist. This report argues that there is a link between South Africa’s culture of rape and violence and whether women approach the SAPS. This link is premised on various aspects, firstly, the culture informs the legal consciousness and conduct of the SAPS. Secondly, the SAPS’ conduct then informs the legal consciousness of women in South Africa. Finally, the legal consciousness of women in South Africa then determines whether they approach the SAPS. Having established the various aspects of this argument, this report offers some ideas for potential reform from both a practical and ideological perspective. The method and approach adopted in formulating the report has not involved the use of any direct research methods, but rather an analysis of the writings and research of various scholars and organisations
The protection of human rights defenders against assassination under south african law
(University of the Witswatersrand, Johannesburg, 2023) Mapfurira, Melon
Human rights defenders (HRDs) are under siege in South Africa. They face unprecedented attacks which, in the worst of circumstances and frequently, culminate in assassination. In that light, the research report examines the extent to which the South African law protects HRDs against assassination. To set out the extent of the risks countenanced by HRDs, the report discusses a few cases of assassination in the environmental, whistle blowing, and land rights categories. Turning to the law, it discusses and analyses domestic, international, and regional legal instruments before it finds that the available legal mechanisms can insulate human rights defenders against assassination. To gain insight into the protections extended by other jurisdictions, the report also scans through legal mechanisms meant to extent specific protection to HRDs in foreign jurisdictions and observes that despite the presence of these laws, human rights defenders in these jurisdictions still face unprecedented violations including assassination. Drawing from these instruments and the prevalence of assassination, the report argues that lack of commitment to implementation and the absence of political will to address the root sources of violations perpetuates a climate of impunity resulting in the scourge of assassination that takes place unabated. Ultimately, the research report concludes that while the available legal mechanisms can extend protection to human rights defenders, the executive arms of the state are lagging in their implementation responsibilities. As a remedy, amendments to the Protected Disclosures Act (PDA) and adoption a HRD specific legislation with sufficient implementation safeguards are recommended to alleviate the situation of HRDs. The proposed safeguards include establishment of an independent panel of experts to foster implementation, and amending the PDA to extent protection to whistle-blower HRDs against assassination while imposing hefty penalties for non-action
The use and impact of criminal sanctions for environmental law transgressions in industrial facilities in South Africa: Determining the boundaries of overcriminalization
(2022) Strydom, Melissa
South Africa has many environmental laws that apply to industrial operations, which laws contain numerous criminal offence and penalty provisions. On conviction, criminal liability may be substantial and far-reaching, including maximum prescribed penalties of up to R5 million or R10 million or imprisonment of up to five or ten years, depending on the offence’s nature. The National Environmental Management Act 107 of 1998 also contains instances where additional criminal liability may be imposed. Writers have described these environmental laws as being ‘littered with new criminal offences’. Criminal law theorists express strong views against overcriminalization, describing it as ‘one of the most serious problems facing criminal law’ because although the criminal sanction should be the state’s ‘ultimate weapon against assaults threatening societal coexistence’, it ‘has become a blunt instrument through its indiscriminate use by legislatures as a tool to ensure obedience’. South African environmental law scholars have considered the criminal sanction in environmental law, but not how the landscape of criminal sanctions has changed over the years, how the criminal sanction is used against industrial facilities that contravene such laws, and what impact this has had on the operation of these facilities or effective enforcement. This research frames these considerations in terms of theories of criminalization and overcriminalization, by establishing a normative framework that can be used to assess what behaviour should be criminalized or what may indicate overcriminalization. This study analyzes changes to four selected South African environmental laws and specific offence categories and considers concluded prosecutions relating to such offences. It reflects the perspectives of 32 participants involved with environmental compliance and enforcement in South Africa, gauging their opinions on themes including criminal law as a last resort, certainty and practicality of the law and its frequent changes, the deterrent effect of criminal sanctions, and challenges in criminal enforcement. These aspects are analyzed within the normative framework to answer the overarching research question- whether the use of criminal sanctions for environmental transgressions in industrial facilities in South Africa has led to overcriminalization and when the use of the criminal sanction is appropriate and effective. The study’s recommendations aim to contribute to the more effective use of criminal sanctions through improved legislative design

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