Faculty of Commerce, Law and Management (ETDs)

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An assessment of the implementation of the global counter-terrorism framework in South Africa
(University of the Witwatersrand, Johannesburg, 2020) Ntsalong, Kgeng; Van Nieuwkerk, Anthoni
The world is experiencing a general rising threat of terrorism. Some regions of the world have experienced more cases than others but no country in the world can claim to be immune. As such each country has a responsibility to protect its citizens, guests and installations against the risk of terrorism. This is done by having policy instruments in place and implementing them effectively to the benefit of the citizens and guests of the country. South Africa promulgated the Protection of Constitutional Democracy against Terrorism and related Activities Act in 2004 to criminalise acts of terrorism. This investigative and exploratory study seeks to establish how South Africa brought into effect its counterterrorism legal instruments and the challenges experienced during the implementation phase as well as to assess whether or not the policy has achieved the intended outcomes in the eyes of practitioners. Strengths and weaknesses are identified and recommendations to enhance the current instrument are proposed
Assessing the impact of the ‘checklist’ to address overcrowding in Gauteng prisons
(University of the Witwatersrand, Johannesburg, 2022) Kanyane, Mpapa Jeremia
Literature shows that overcrowding in prison is a crisis that is exacerbated by challenges associated with court processes and inadequate criminal justice systems. Practical measures have been implemented by the South African government to combat these challenges through the use of an integrated criminal justice system. The National Task Team developed a strategy known as the ‘checklist’ that is development from internal benchmarks to address addressing overcrowding in South African Prisons. The study focuses on the assessment of the impact of the ‘7C checklist’ a process that is has been adopted to reduce overcrowding in Gauteng prisons as well as the role of the various government role players within the National Task Team. Using a qualitative approach that included document analysis and in-depth interviews, the study examined the impact of the 7C checklist in addressing the issue of overcrowding. This study concludes that there remains the persistence of practical constraints that are associated with the implementation processes required for complying with the ‘checklist’, as seen through the eyes of those in charge of implementing the strategy. Generally, the ‘checklist’ is partially implemented, and not following through with the processes negatively impacts on the overall goal of reducing overcrowding in Gauteng Prisons
Assessing whether political-administrative relationships affect stability in South Africa
(University of the Witwatersrand, Johannesburg, 2023) Mjekula, Nosipho; Lynge, Halfdan
The assessment of the political-administrative relationships between executive authorities (Ministers) and Directors-General (DGs) and whether there is a perceptible correlation with stability in three national government departments in South Africa, namely Human Settlements, Traditional Affairs, and the Office of the Public Service Commission was seized using a mixed methods approach (qualitative and basic elements of quantitative methods). Due to the editorial nature of this research piece, the academic knowledge gap, the lack of empirical evidence about the typology of these relationships in South Africa, and the deep interest of the researcher in the study, an analysis was necessary. This study focuses on the relationship between politicians who are Executive Authorities (EAs) and only administrators at the level of Directors- General (DGs) and who are regarded as the independent variable (IV). The EA and DG have an individual role to play in the policy formulation and implementation and enacting laws, and regulations (intervene variable). Another variable that intervenes and contributes to the relationship between politicians and administrators is the political landscape at a particular time which normally expresses certain relationships between the EAs and DGs. Ample evidence shows that poor relations between the elected and the appointed cause a high turnover rate at the administrative level and creates unstable institutions that are weak and characterised by corruption (SA Institute of Race Relations, August 2017). The high turnover refers to the number of DGs who leave the Public Service. However, most of the studies do not necessarily clarify whether the turnover rate within government was caused by the kind of relationships EAs and HoDs may experience, therefore remains unclear. Internal strife at the level of political and administrative executives is often heard through newspaper articles. This turned out to be a normality where tensions, poor working relationships and interactions, how major decisions are taken, individual and organisational instabilities, and political over administration power are mostly cited. The instability of relations between politicians and officials, created by high levels of public service politicisation, is the most solemn variable of instability and inconsistency in any democratic dispensation. The findings and recommendations of the study will shape improved relations, and help the government categorize the kind of relationships that exist through a developed model named Political Administrative Leadership (PAL) that the researcher established to map the relationship that is deemed functional even when tensions exist. The political executives, administrative heads, the Directors-General (DGs) or heads of department (HoDs), and public service practitioners will be able to sketch healthier relations that would shape and enhance the future of the political-administration dichotomy that existed and was questioned by some scholars e.g. Mafunisa, Maphunye, and others policy and framework development that permits pragmatic analysis of the relationships at the political-administrative interface. The study uses a sample size of thirty-four participants selected using a purposive and snowball sampling technique in the three national departments. Fifteen of the participants were from the Office of the Public Service Commission (OPSC), twelve from the Department of Traditional Affairs (DTA), and seven from the Department of Human Settlements (DHS). The study focuses on the unit analysis which is the relationship between a Minister and Director-General in each of the selected departments. The sample was selected using the offices and units that understand the political-administrative relationships and whether they caused or not necessarily instigated the stability or instability thereof. The study of two out of the three national departments showed stable relationships and stability between the EAs and DGs, however, the respondents were of the view that the poorer the relations the higher the instability in government departments, components, entities, and institutions
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.
Automatic exchange of tax information and the right to privacy: a South African constitutional analysis
(2021) Mia, Aisha Bibi
Broad-based automatic exchanges of information are increasingly viewed as the norm in global tax practice. The mass transmission of large amounts of personal and financial data creates informational risks and implicates the privacy rights of impacted data subjects. This investigation considers the interaction between broad-based automatic exchanges of information –specifically the Common Reporting Standard (CRS) and FATCA– and the right to privacy contained in section 14 of the South African Constitution. To date there has not been any authoritative legal precedent on this area and the available academic literature is also limited. Applying a doctrinal research method and drawing on the approach employed by the Constitutional Court when adjudicating Bill of Rights matters; a synthesis and analysis of various written sources was undertaken. The sources consulted include: legislation, South African case law, international law, treaty instruments, foreign case law, policy papers and academic literature. This study finds that the CRS exchange of taxpayer information is aimed at reducing global tax evasion and is reciprocal in nature. Additionally, the exchanges take place within a robust privacy framework. Accordingly, the CRS is constitutionally valid, with only limited opportunity to further enhance constitutional consonance. Contrastingly, the FATCA data exchanges are de facto unilateral. They cannot therefore be linked to any legitimate objective to improve tax compliance and revenues in South Africa. In this regard the investigation concludes that FATCA fails to pass constitutional muster.
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
Barriers to Effective Performance Management in South African Public Administration
(University of the Witwatersrand, Johannesburg, 2023) Chetty, Paragasen Perumal; Ouma, Wycliffe
This study evaluates barriers to effective performance management within the South African public sector. The purpose of the study was to understand if barriers to effective performance management had an impact on performance appraisal outcomes, transformational leadership style, and public service motivation levels. The study further assessed transformational leadership’s ability to mediate between performance barriers and public service motivational levels. Study approach was a quantitative methodology supported by an online survey for collection of primary data from South African civil servants. An exploratory analysis and inductive reasoning method was supported by the cross-sectional observational design of the research. The research outcomes confirmed that barriers to effective performance management had a significant and negative influence on performance appraisals worth, there was also a significant and negative effect on transformational leadership style, and barriers to effective performance management reduced public service motivation levels. The findings also confirmed that transformational leadership style partially mediated between performance barriers and public service motivation levels. The implication is that whilst transformational leadership style partially mediated the impact of barriers on public service motivation, if public sector leadership does not act to assuage performance barriers, then endeavours at performance appraisals will become a cursory exercise, stratagems for public sector transformational leadership will be distrusted and team members with high public service motivation levels will exit the administration. Exorbitant costs for reduced quality of public sector services will become a common occurrence. With the help of transformational leadership strategies, employee public service motivation can be increased whilst reducing the influence that performance barrier wields over performance improvement. When barriers are reduced performance appraisal information can become more meaningful and useful for improved employee performance
Capacity development of service delivery structures and programmes in Bojanala Platinum District Municipality
(2021) Mphahlele, Matuku
Bojanala Platinum District Municipality (BPDM), in the North West Province is a centre of the extractive economy in South Africa. The BPDM experiences challenges in relation to delivering quality public services. In this context, this thesis examines capacity development of service delivery structures and programmes of the local municipalities, in the BPDM, that is, Kgetlengrivier, Rustenburg, Madibeng, Moses Kotane and Moretele. In addition, the study explores the ways in which they can be overcome for enhanced service delivery. The BPDM is embedded in an extractive economy and experiences challenges of the largely heterogeneous and mobile population that results in high influx of labour migrants, socio-economic inequality, and unemployment that impact heavily on the municipal capacity to deliver services (Van Wyk, 2012; Alexander, Sinwell, Lekgowa, Mmope & Xezwi, 2012). Accordingly, the Mineral Petroleum Resource Development Act 28 of 2002 (MPRDA) unpacks legislative prescripts on what structures mining companies have to establish, how to monitor and report on collaborative Social and Labour Plans (SLPs) in conjunction with municipal Integrated Development Plans (IDPs) for enhancement of service delivery. Thus, the study also examines the nature of structures and programmes, facilitators and inhibitors of skills development initiatives and how mining companies as local partners facilitate or impede improvement in delivering municipal services to the community. Within the context of local government capacity development, this study develops a theoretical framing incorporating scholarship on human capital, performance improvement and collaborative participatory governance perspectives. This framing is premised on the scholarly evidence that capacity development is an enabler of service delivery, influenced by skills development, municipal performance improvement and collaborative participation. ii )To generate perspectives in relation to capacity development of service delivery structures and programmes, a qualitative case study approach, using interviews is adopted. Semi-structured interviews were undertaken with senior managers in the municipalities and the respective, locally based mining company. In addition to semi-structured interviews, documentary analysis and the descriptive statistics were employed. The study’s research questions examine the structures and programmes for enhancing capacity development in relation to service delivery. In addition, the study hones in on how local partners facilitate or hinder improvement in providing municipal services and how local municipalities better utilise their capacity development resources, including partnership with mining companies in relation to service delivery. This case study reveals that there are difficulties with respect to capacity development associated with skills retention, organisational relations and socio-political capacity building. The study concludes that political abandonment, poor communication and stakeholder engagements aggravate weakened inter-municipal co-operation and inadequate utilisation of resources. These challenges undermine cost-effective, efficient and effective implementation of capacity development of service delivery structures and programmes, underpinned by skills development and organisational learning. This study, suggests that socio-political resilience and administrative synergy are key enablers in the enhancement of service delivery. The thesis contributes to the body knowledge about the distinctive nature of the interface between learning and skills development, underscoring key enablers of improved capacity development of service delivery structures and programmes.
Challenges to inclusive public participation in the development of the national security strategy
(University of the Witwatersrand, Johannesburg, 2023) Cairns, Murray
Public participation is a fundamental component of good Security Sector Governance (SSG), allowing those who are affected to participate in decision-making processes. Although inclusive participation is recognized as fundamental, this has not translated in its universal application, particularly when it relates to matters of national security. South Africa's 2013 National Security Strategy (NSS) has taken a similar approach, drawing criticism for its lack of inclusivity. In light of this, this research seeks to explore the challenges that exist within South Africa’ssecurity sector that limit inclusive public participation. The paper employed a qualitative case study and purposive sampling to collect textual data on challenges found in other contexts, and the perspectives of security experts familiar with practices in the country's security space. Findings from the research show that the country's historical legacies, as well as institutional practices and relationships among various stakeholders, limit public participation in South Africa's security sector
Church brands and management styles: The case of South African Protestant churches
(University of the Witwatersrand, Johannesburg, 2022) Juqu, Thando Buhle; Saruchera, Fanny
Protestant church brands continuously fail to recognise that their brands are indeed brands. South African church brands have continuously been accused of engaging in activities that detract and decrease their customer bases. Their roles are to ensure that the customers’ needs are met and are satisfactory. This study aimed to measure the perceived relationships between brand management and other variables such as customer loyalty and consumer behaviours. Do church members and other stakeholders agree that church brands are brands and attest to this statement by identifying as customers to the brand? Guided by the positivism approach and descriptive research design, the study utilized a self-administered questionnaire to collect data from a sample of 171 respondents who were members of the South African Protestant churches. The study established that communication remains a key pillar to the growth and sustenance of any relationship. The study further proved that proper befitting brand management styles play a role in the growth of brands. Under the agency theory, the study highlighted that these customers need to be noticed and heard by protestant church brands. About Thirty six percent (36.3%) of respondents highlighted that brands did not communicate internal issues and scandals. The study further cited poor brand management and the lack of communication, and that a decrease in brand management led to detracting customer loyalty and brand trust, putting these non-profit organisations at significant risk. The study concluded that adopting proper management styles and CRM activities and observing proper brand management styles in these protestant church brands allows brand growth. This study contributes to the body of knowledge by enriching the theoretical scope of theology and brand management in the context of protestant church brands. This ultimately leads to custodians of brands becoming great stewards of the brand
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
Effectiveness of Xenowatch’s monitoring of xenophobic violence in South Africa
(University of the Witwatersrand, Johannesburg, 2023-03) Charuma, Tinevimbo; Pophiwa, Nedson
With increasing occurrence of xenophobic violence incidents in South Africa it becomes imperative to come up with solutions that are more effective. Key to reducing and preventing the incidents is monitoring of xenophobic violence for better evidence-informed anti-xenophobic policy interventions. In South Africa at present there is no state institution that focuses on tracking and tracing the patterns and trends of xenophobic violence attacks which means that decisions to act or ignore are not based on any factual information. A growing point of literature suggests that societal issues do not have optimal solutions, hence they need to be data driven to effectively deal with problem communities are facing. However, in Africa and in South Africa data driven and evidence- based decision making is limited in both public and private sectors. This study aimed at exploring how monitoring of xenophobic violence is used for policy making and advocacy work. A case study approach was used which focused on the monitoring of xenophobic violence by Xenowatch an independent institution. Within the case study key informant interviews were conducted with ten participants which comprised of three from Xenowatch staff and the remaining from Xenowatch partner organizations who are also users of the data. All the participants were purposively selected due to their experience and expertise with migration issues which are greatly connected to xenophobic violence and also working for and working with Xenowatch. There is limited evidence of use of the Xenowatch monitoring data by government or state institutions. The data showed its strength in advocacy as the findings revealed several uses by civil society organizations which include lobbying, influencing policy change, used in court cases among others. The study also showed the challenges in both gathering and using monitoring data such as underreporting, definition of xenophobic violence for the former, and capacity (knowledge and resources which affects both civil society and government) for the latter. From the interviews different suggestions were given by both respondents from Xenowatch staff and their stakeholders on how to improve the use of monitoring results for advocacy and policy making
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
Examining The Use of Evaluative Evidence in Decision- Making Within Catholic Faith-Based Organisations
(University of the Witswatersrand, Johannesburg, 2023) Ebong, Fotoh Paul; Masvaure, Steven
Catholic Faith-Based Organisations are critical in contributing to social betterment through various development initiatives(Camilleri & Winkworth, 2004). The use of evaluations conducted in these organisations to enhance learning, programme improvement and eventually social betterment through informed decision-making is the concern of this research. Literature on the use of evaluations underlines the fact that evaluations are aimed at providing relevant information to various stakeholders for their decision-making and improvement of the evaluand as well as assessing their merits and worth (Alkin, 1975; Maloney, 2017a; Patton, 2012; Stufflebeam, 2001a). As a widely researched phenomenon, the use of evaluation has been identified by various authors to include instrumental use, conceptual use, process use, and symbolic use (Alkin & Christie, 2004; Johnson et al., 2009). The need to make evaluations useful has, therefore, been the driving force behind the development of the different approaches to evaluation, evaluation principles and standards, as well as the creation of various voluntary associations to sustain and promote the professionalism of the field (Stufflebeam, 2004). Even though Catholic faith-based organisations conduct evaluations, little is documented about the extent to which these evaluations were used in decision-making processes, if any, and what role the evaluation characteristic factors, organisational and human factors play in influencing use. To investigate the extent to which these organisations use these evaluations and the extent to which evaluation distinct variables play a role in enhancing use, a mixed method was undertaken to gather quantitative and qualitative data from 43 respondents who were selected purposefully among the eligible organisations for the study. A questionnaire was administered online, followed by key informant interviews. The findings show that most organisations make use of evaluations to inform practice. Still, since the evaluations are commissioned mainly by the funders, the willingness of these organisations to take the initiative of conducting their evaluations is less evident. To some, carrying out evaluations is merely to comply with the funding requirements rather than seeking evidence based upon which informed decisions can be made. Therefore, I recommend that Catholic faith-based organisations institutionalise monitoring and evaluation units within their organisations to strengthen their internal capacity to generate and use evidence in decision-making. This would equally build evidence-use awareness and establish a culture of evaluative thinking in organisational practices.
Experts’ perceptions on the decriminalization of drug use for criminal justice and health in Gauteng province
(University of the Witwatersrand, Johannesburg, 2021) Netshivhumbe, Mukhethwa; Cairns, Murray
Drug abuse is an ongoing global challenge with the prevalence of drug abuse and drug use disorders increasing significantly in recent years. South Africa like the rest of the world is not immune to the drugs scourge. The Department of Social Development (2020) stated that South Africa has become a consumer, producer, and transit country for drugs. Growing evidence suggest that criminalising drug use has no effect in reducing the problem in South Africa, hence the need to start thinking about new methods to deal with the challenge, regardless of how radical the new methods might seem. Emphasis should be placed on evidence based public health and social justice approaches. Decriminalisation is a phenomenon that is gaining momentum worldwide but can be considered radical now, since it requires extensive overhaul of any country’s illegal drugs’ policy. This study attempted to explore the perceptions of the experts in the field of substance abuse regarding the efficacy of decriminalising drug possession and use in Gauteng province, SA. Qualitative methodology with exploratory nature was utilized in this study. Interpretivism as the underlying research method was applied for this study. A basic interpretative study research design was adopted, as the focus was the building of this knowledge. Purposive sampling method was used to select participants of this study. Data were collected using semi-structured interviews. Interviews were conducted face to face and using virtual platform (Zoom). Data were transcribed and analysed using thematic analysis. Data were presented focusing on the themes and emerged themes stemming from the purpose and objective of the study. This study has established different thoughts on the subject matter of decriminalisation of drug use. The majority (11 out of 15) of participants were in support of decriminalization of drug use. Their views were that the current approaches for combating drug problem have not yielded positive results hence a need to explore an alternative approach. Those against the decriminalisation of drug use were concerned that decriminalisation will results in an increase in drug use and drug dealers will flock into the country to sell drugs. They further expressed that the scourge of drug abuse is fuelled by social ills in the country, not criminalisation of drug use, therefore the country should address social problems and the drug problems may be reduced.
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
The implementation of Section 139(1) of the Constitution in the Ngaka Modiri Molema District Municipality
(2017) Kampi, Zoliswa
The Ngaka Modiri Molema District Municipality (NMMDM) is situated in the North West Province, South Africa. It has persistently been placed under provincial administration (s139 (1) of the Constitution) and continuously resisted the interventions including taking legal actions against the North West Provincial Executive. The objectives of the research study were to explore and provide insights into the factors that informed and impacted the planning and implementation of s139(1) interventions in the NMMDM, and to explain how these factors either promoted or undermined the success of these interventions. From the literature review undertaken, the researcher drew critical themes and concepts that underpin the research study. The leadership and governance theories provided the theoretical perspectives and the principal-agent theory underscored the conceptual framework. In line with the exploratory nature of the research study, the qualitative research method was preferred and the NMMDM was adopted as a single case study to get a deeper understanding of the intricacies involved in the planning and implementation of s139(1) interventions. The researcher obtained the primary data through semi-structured interviews with the municipal leadership and used document analysis to gather secondary data. The research findings revealed the richness and complexity of the local government discourses. Through analysing the results of these discourses, a number of critical aspects that informed and impacted these interventions in the NMMDM emerged. These aspects range from the nature of to the quality of support provided to the NMMDM prior to the interventions. These include the communication of the directives and notices to assume responsibility, details given on the rationale for the interventions, political dynamics and their influence on reactions to the interventions, capacity of the province to plan and implement the interventions, and perceptions of the impacts of the interventions. Nevertheless, it is not the intention of the research study to generalise the findings but to present them as they manifested in the NMMDM.
Improvement of Nigeria’s Security Sector Governance to effectively control terrorism
(2022) Ossai, Vincent
This research explored the means of enhancing Nigeria’s security sector governance to effectively counter the threats of terrorism and its facilitation by terrorism financing. For this purpose, the subsisting status of the necessary requirements that can strengthen the sector was assessed. These requirements are those advocated in the traditional Security Sector Reform paradigm and in the African Union Policy Framework on Security Sector Reform. There are several of these but the ones concentrated on are: civil democratic oversight, human rights and good governance as well as its derivates including the country’s anti-corruption profile especially with relevance to the required transparency and accountability of the sector. Access to gainful employment as a means of poverty alleviation and to help reduce involvement in terrorism was equally assessed. The data for this purpose were sourced from relevant documents and the submissions of purposefully sampled experts. The result of the assessment showed that the subsisting quality of the above requirements, are deficient in terms of their efficacy to boost Nigeria’s security sector governance to effectively counter terrorism. This therefore, necessitated the following improvements; namely: development and application of better strategies to mitigate this crime and its illicit financial supports; strengthening the capacity of the sector through improved human resources, budgetary and equipment supports; better intelligence management; improvement of policy and legal supports; improvement in the collaboration of constituent institutions in the sector as well as complementary international cooperation supports. Others are: strengthening of the various oversight institutions and the proficiency of their functionaries as well as improvement of human rights standard of the sector through enforcement of civilized and ethical conducts of security operatives and complemented with sanctions for breaches. Further improvements revolved around provision of good governance including enhancement of Nigeria’s anti-corruption profile including the required transparency and accountability standard, entrenchment of professional responsibility etiquette and effective administration of sanction schemes. Further improvements include: provision of gainful employment opportunities through requisite skills and entrepreneurship development programmes as well as provision of supports to the private sector and investment in public infrastructure. Consequent upon the foregoing, it is expected that when the above improvement measures are undertaken and proficiently applied, that they can help to strengthen the capacity of Nigeria’s security sector governance to more effectively control terrorism in the country.
Institutional arrangements and rehabilitation of young offenders: a case study of the Leeuwkop correctional service facility.
(2022) Macozoma, Mesuli
The 1994 democratic transition in South Africa marked a break away from its repressive past, which included the creation of new institutions to exercise the rule of law in a democratic dispensation. Transforming the prison system to correctional services through policy, changed the outlook of the state in exercising punitive measures against those charged with breaking the rule of law. A key question that has emerged is the need to understand how the established correctional services system facilitates the rehabilitation of young offenders, who make the majority of people incarcerated in correctional facilities in South Africa today. The study employed a qualitative case study approach to establish interactions between institutionalised young offenders at Leeuwkop Correctional Service Facility which serves as a medium for rehabilitation. The objective of the study was to determine whether the institutional arrangements at this facility support the institutionalisation of rehabilitation as articulated in the 2005 White Paper on Corrections. Primary data was gathered using semi-structured interviews from a sample of 16 participants, inclusive of three first-time offenders, three repeat offenders, and two former offenders from the Leeuwkop Correctional Service Facility between the ages 21 – 35 years old. In addition, eight institutional actors associated with Leeuwkop Correctional Service Facility were interviewed to understand their perspectives on the administrative processes involved in services offered by the facility. Thematic analysis was employed to analyse the data sets which generated four key themes around the issue of order and discipline, factors contributing to offending, rehabilitation of offenders in a correctional environment, and the allocation and expenditure of financial resources. Research findings indicate that a lack of transformation and misalignment of the current institutional arrangements is obscuring effective rehabilitation of young offenders at Leeuwkop Correctional Service Facility. A significant finding that emerged was that the primary objective of the Leeuwkop Correctional Service Facility is the incarceration of young offenders, and rehabilitation is a secondary function; hence the institutional and structural arrangements emphasize achieving the primary goal Conditions at Leeuwkop Correctional Service Facility, reveal that institutions established with contradicting mandates tend to systematically resist change. Arguably, the institution has struggled to transform its secondary role into an actionable goal that aligns with the policy framework, rendering this space a constitutive element in engendering a vicious cycle of violence among those who interact with the institution. The research concludes that more work is needed at both institutional and administrative level to foster a culture of rehabilitation within correctional service facilities.

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