Electronic Theses and Dissertations (PhDs)

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    When Less Is More – Tiny Housing As “Adequate” Housing
    (University of the Witwatersrand, Johannesburg, 2023) Kruger, Petronell; Pieterse, Marius
    The modern housing landscape is in flux with three key phenomena impacting the “adequacy”– the legal standard by which housing provision is measured – of housing policy, in South Africa, and worldwide. First, the “classic” housing crisis persists: high levels of homelessness, housing backlogs, and challenges related to government housing subsidies and service delivery continue. Second, there is international recognition of the impact of climate change on housing, the consequent need for climate-resilient housing, and reduced climate footprints of housing construction, maintenance and ownership. Third, physical housing size is increasing, despite the number of household members and available space for housing decreasing. This thesis considers these phenomena and contemplates the role of housing size within the evolving legal standard of “adequacy”, especially where size was often linked to the promotion of the right to health in light of communicable disease outbreaks. The thesis explores how tiny housing movements and different global norms on housing size can challenge conventional standards of housing adequacy. It considers that smaller dwellings are more affordable, less resource-intensive and, within the correct policy context, can lead to easier access to housing. The study lens of tiny housing is chosen due to its popularity throughout different income groups, based on growing concerns about consumerism, sustainability and communitarianism (albeit through a westernised lens). Accordingly, it allows for a discussion on the role of housing down-sizing without necessarily invoking a sense of “racing to the bottom”. To achieve the research aim, the following research questions are posed and answered in turn: What is “adequate” as a standard to measure housing? Does size matter for the standard of adequacy, and if so, how? Can tiny houses, as a representation of very small housing types, be deemed adequate? If tiny housing can meet the adequacy standard, how should the law facilitate the self-realisation of tiny housing, or, alternatively, as a viable form of public housing? The thesis comprises six chapters. The first chapter introduces the above-mentioned phenomena and study lens. The second chapter examines the legal and social barriers and facilitators for tiny housing in both private and public contexts through a comparative study of selected jurisdictions, chosen to represent different social, cultural and geographic contexts in which housing size requirements developed. The jurisdictions were also selected based on data accessibility and availability. The third chapter is a content analysis of theoretical aspects of adequacy in international and South African housing and human rights law. The fourth chapter is a critical analysis of building regulations and planning laws in South Africa, tracing their history and assessing their current form, with a focus on how they structure the self-realisation of access to tiny housing as adequate housing. The fifth chapter considers government public housing programs, policy approaches to housing size and its trade-offs with other adequacy factors in enabling access to tiny housing for people without the means to self-realise the right to adequate housing. Chapter six presents the answers to the research questions as explored through the various chapters and presents the overall findings of the study
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    Gender and Transitional Justice in the Central African Republic
    (University of the Witwatersrand, Johannesburg, 2023) George, Lucia; Swart, Mia
    The Central African Republic has been the scene for many years, even decades, of many conflicts and almost permanent political, social, and economic instability. During the most recent conflicts, in 2002/2003, and in 2012/2013 until today, women have been the first victims of Gender-Based Violence (GBV), understood in its broadest sense as also including violations of socio-economic and cultural rights of which they were the first targets or from which they suffered the most disproportionate consequences. This thesis proposes to assess whether the transitional justice mechanisms created in the Central African Republic can combat GBV by challenging the unequal gender norms and structures pre-existing the conflicts and, therefore, bring about a significant change in the life of women in the country. To do this, this thesis proposes to look at the concept of transformative justice to analyse what this concept means in theory and practice. In doing so, three different modes of justice will be successively studied: interactional justice, distributive justice, and normative justice from the perspective of a feminist analysis of transitional justice.
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    Re-defining gender equality in the formal mining industry. a case of select categories of women in South Africa
    (University of the Witwatersrand, Johannesburg, 2023) Mudimba, P. Chipo; Albertyn, Catherine
    The mining industry has been one of the major contributors to the economic development of many developing countries. It employs and creates business for both skilled and unskilled people and has great potential for developing mine-hosting communities. The industry also has potential to contribute towards development programs, designed through Social and Labour Plans. Mining can improve lives. However, due to the masculine nature and culture of the industry, women have long been excluded from participation and, in many jurisdictions, it has required the law to correct this inequality. In South Africa, despite a plethora of laws to incorporate women in the industry, the majority of women remain excluded from recognition and participation, thus reflecting different meanings and understandings of the concept of equality from a more formal idea to a more substantive notion of equality. This study investigates the role and potential of the law in advancing substantive gender equality in the South African large-scale mining industry. Its focus is on three groups of women: those in ownership and control of mining related businesses, employees and women resident in mine hosting communities. A qualitative mixed methods approach (documentary interpretation, interviews and focus group discussions) was used to investigate the problem and collect data. The findings showed that, while the law plays a huge normative role in advancing equality, in practice this has often been limited to formal and, sometimes, inclusive interpretations of equality. Overall, the law is unable to cure barriers such as patriarchal and socio-cultural limitations experienced by women in the industry. Consequently, alternative solutions that seek to advance a more transformative substantive equality, drawing on women’s practical experiences, are recommended.
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    Good corporate governance in state-owned entities: challenges and compliance
    (University of the Witwatersrand, Johannesburg, 2024) Mokuena, Medi Moira; Kawadza, Herbet
    This research explores the state of good corporate governance in state-owned entities. It does so by locating good corporate governance in the state-owned entities’ operating environment. This research raises the failure of the executive managers, the non-executive directors, and the executive authorities to appreciate this powerful tool as a key to the success of the state-owned entities. The state-owned entities are significant participants in South Africa's economy. The number of state-owned entities, the size of some, and their role in the country's economy make good corporate governance imperative. The nonchalant approach of the state-owned entities management to this phenomenon is concerning because its effect on the economy and the delivery of services to the people has far-reaching negative consequences. In most instances, unethical executive managers and non-executive directors consider it inconvenient and a nuisance. The competitiveness of the economy, success and sustainability of the state-owned entities is unachievable without good corporate governance. The accounting authorities must know and understand the purpose of state-owned entities and the relevance of good corporate governance. They must own it, embrace it and oversee its effectuation throughout the organisation without fail. Once adopted, good corporate governance binds the accounting authorities, the executive managers, and all the employees in the state-owned entities, including the executive officers. There are laws and other guidelines in place to modulate good corporate governance. The overarching law is the Constitution of the Republic of South Africa, 1996. These could be better. However, if properly implemented and not manipulated for nefarious reasons to the detriment of the state-owned entities, the government will realise its goals, and the public will benefit. Bad corporate governance opens the door for corruption, bribery, fraud, financial mismanagement, and money laundering. This problem is common in Southern Africa. For instance, Botswana and Namibia also have good corporate governance challenges in their state-owned entities. Their good corporate governance is premised on the King Codes and international instruments. Hence, good corporate governance must be applied in the management of state-owned entities. The quality of management and execution in state-owned entities determine their failure or success. With the help of the private sector enablers, theirprospect of success is limited
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    The role of local government in achieving spatial equity through the realisation of the right to housing in South Africa
    (University of the Witwatersrand, Johannesburg, 2023) Mudau, Fungai Paul; Pieterse, Marius
    This Thesis deals with the role of local government in overcoming spatial inequalities in South African cities, with a particular focus on housing and access to well-located urban land. The primary focus is on whether the legal role of local government in housing matches its rights-related responsibilities and its role in achieving spatial equity. Municipalities have limited legal powers, policy scope, and budget for housing. With overstretched programmes and fiscus, certain municipalities are reluctant to assume housing delivery roles. However, numerous court cases bind municipalities by assigning them increased rights-based responsibilities which they may not be adequately equipped or empowered to implement. The problem which therefore unfolds relates to the inevitable need to address the obligations to realise the right of access to adequate housing of the urban poor within the limited legal, institutional, and structural role that local government plays in housing delivery, as well as with the limited resources at its disposal. The challenges associated with the realisation of local government’s housing-related powers, functions, and responsibilities become simultaneously more complicated and less insurmountable when viewed together with local government’s legal powers and functions pertaining to spatial planning. As a result, this Thesis investigates the articulation between housing and planning-related legal competencies and responsibilities of local government, in seeking to ensure that local government can fulfil its constitutional developmental role and contribute to the achievement of spatial equity. Selected case studies of the metropolitan municipalities of Cape Town, Johannesburg, and eThekwini are utilised to explore the emerging trends, issues, and challenges in practice
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    Courting an intervention: conceptualising the judicial role in matters relating to section 139 of the South African constitution
    (University of the Witwatersrand, Johannesburg, 2024) Franklyn, Claire Susan; Pieterse, Marius
    This Thesis conceptualises the developing judicial role in matters relating to section 139 of the South African Constitution, being the constitutional intervention mechanism in terms of which a provincial executive (or, in certain circumstances, the national executive) intervenes, temporarily and in a circumscribed manner, in a dysfunctional municipality. The burgeoning judicial role has developed within the context of systemic local government collapse, persistent service delivery failures, and failing and dysfunctional constitutional accountability and intergovernmental monitoring and support mechanisms. Three broad categories of section 139 intervention matters are identified in this Thesis: first, the judicial review of a decision to initiate a section 139 intervention, second, the judicial review of a failure to take such a decision, and third, a catch-all category relating to matters which trigger, or at least, this Thesis argues, should trigger, a consideration of section 139 of the Constitution, where such intervention does not form part of the requested relief. Chapter 1 sets out the policy, constitutional and legal framework and practice of the section 139 intervention mechanism. Chapter 2 draws on case law and academic literature relating to the South African court’s adjudication of different subject matters (or ‘streams’), each of which have elements pertaining to the section 139 intervention mechanism, to develop a conceptual, analytical and evaluative framework for constructing a judicial role conception in matters relating to section 139 of the Constitution. Chapters 3, 4 and 5 apply this framework to systematically analyse the case law falling within the three identified categories of section 139 intervention matters, tracing doctrinal developments and building a conception of the judicial role with a focus on justiciability, judicial scrutiny and remedial prescriptiveness. The conclusion to the Thesis in Chapter 6 consolidates insights from the three categories, ultimately arguing that the South African environment is generally conducive to litigation relating to section 139 of the Constitution, with the court adopting a catalytic judicial role, shifting its levels of judicial scrutiny and remedial prescriptiveness in each category based on an intersection of its understanding of its own role under the doctrine of separation of powers, the role of governmental action and responsiveness, the integrity and healthy functioning of the applicable democratic institutions, structures and processes, and the seriousness of any underlying socio-economic rights violations.
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    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
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    Legal challenges of establishing jurisdiction over cloud data: addressing the gaps in South Africa’s cybercrime legislative framework
    (University of the Witwatersrand, Johannesburg, 2023) Musoni, Melody; Klaaren, Jonathan
    This thesis discusses the problems presented by the emerging technology of cloud computing during cybercrime investigations. One of the main challenges with cloud computing technologies is the lack of clarity on jurisdiction and whether law enforcement agents can exercise unilateral enforcement jurisdiction over remote cloud data. The thesis signifies the challenge by demonstrating how remote access to cloud data can potentially infringe on the sovereignty of foreign states, violate international law, and infringe on people’s privacy rights. The underlying concern with cybercrime investigations in the cloud context is that the current laws are not only territorial, but they are also outdated and lacking the ability to complement and address technological advancements. The central question discussed is whether the jurisdictional principles need to be revised to address innovative technological advancements or if the traditional principles suffice and can continue to be of application. At present, there are diverging views and approaches to dealing with cloud data jurisdiction for criminal investigation purposes. Some scholars, judges and law officers still rely on traditional jurisdictional principles and apply them to cyberspace and cloud environments. They do not see the justification to have separate laws to address activities in cyberspace. However, others advocate for the acclimatisation of new laws to meet the technological changes. Compounding this difference in opinion is the uncertainty in legal frameworks on cybercrime. Such uncertainty has left the topic vacillating between the views of territorialists and those of data exceptionalists. Similarly, South Africa’s position on this issue is unequivocal as various pieces of legislation address the issue of cloud jurisdiction differently. This makes this study of utmost importance. This thesis argues that law should be developed to address the technological changes presented by cloud computing technologies. Traditional jurisdictional principles which emphasise on geographical territory are not sufficient to address the unique features of cloud data. Pre-internet based jurisdictional principles should not be directly applied in cyberspace or cyber-environments. It is important for law to be developed in a manner which allows it to adequately address technological developments. One way of achieving this is by reformulating jurisdictional principles to conform with the emerging technologies. Apart from law, lawyers and law makers should leverage the use of other regulatory modalities such as code to regulate online conduct. Code can play the role of law which can effectively regulate cyberspaces as well as solve the data jurisdictional problem. This thesis supports the notion of reformulation of jurisdictional principles to address these challenges. In addition, it also points out the importance of reinforcing the current measures in place to address jurisdictional challenges
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    Adequacy of Data Protection Regulation in Kenya
    (University of the Witwatersrand, Johannesburg, 2023-10) Laibuta, Antony Mugambi; Zitzke, Emile
    Article 31 of the Kenyan Constitution provides for the right to privacy. The Kenyan Data Protection Act, 2019 gives effect to Article 31(c) and (d) of the Constitution. This study is about whether data protection regulation in Kenya would inspire any confidence in data subjects who enjoy protection of their right to privacy under Article 31 of the Constitution. Kenya, going with the global trend, in November 2019 enacted the Data Protection Act. Before the enactment, Kenya had debated data protection Bills for over a decade. But even with the enactment of the Data Protection Act, the question remains whether this was sufficient to guarantee the right to privacy and specifically data subject rights. The main aim of this study is to determine the adequacy of data protection regulation in Kenya by responding to five questions: How has data protection evolved in Kenya? What framework should be used to determine the adequacy of data protection regulations? To what extent is the legal framework on state surveillance adequate? To what extent is the legal framework on commercial use of personal data adequate? How adequate are the available remedies in relation to data protection in Kenya? To wit, no comprehensive academic discussion has explored the history of privacy and data protection in Kenya. This study fills this gap in the academic literature. It has established, through highlighting constitutional and statutory provisions, that the right to privacy in Kenya has been in existence since Kenya gained independence from colonial rule. Conversations during the clamour for constitutional reforms shaped the current text that provides for an individual right to privacy which has been the springboard for data protection rights to be introduced. There is no immediately obvious framework that would be ideal to determine the adequacy of data protection regulation in Kenya. In light of this gap, this study has presented a simple set of questions used in day-to-day legal practice to be used as the determination-of-adequacy framework. The questions, “who?”, “why?”, “what?”, “when?”, “where?”, and “how?” are iv posed on State surveillance, surveillance capitalism, and access to effective remedies. Responses to these questions are juxtaposed with provisions of the European Union’s General Data Protection Regulation and South Africa’s Protection of Personal Information Act. The responses reveal the level of adequacy of data protection regulation in Kenya. On adequacy in State surveillance, surveillance capitalism, and availability of effective remedies, the study has revealed that while there are provisions of the law that adequately regulate the three issues, there are gaps and ambiguities that must be addressed to raise the level of adequacy and inspire confidence in data subjects. For the gaps and ambiguities, this study recommends law reforms in the form of amendments to provisions of the Kenyan Data Protection Act, Data Protection (General) Regulations, Competition Act, National Intelligence Service Act, and the Data Protection ADR Framework. This study also recommends enactment of new law including an Artificial Intelligence Act, Data Protection (Statutory Database) Regulations, and Regulations on interception of communications under the Prevention of Terrorism Act and other enabling statutes.
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    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