Electronic Theses and Dissertations (PhDs)

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The Role of Psychology in Legal Education: Incorporating Cognitive Science into Legal Pedagogy
(University of the Witwatersrand, Johannesburg, 2024) Starosta, Paulina Dagna; du Plessis, Riette
Prevailing criticisms of legal education suggest that students enter clinical programmes ill equipped to solve problems and that they leave law school without learning the lawyering competencies of effective legal practitioners. This thesis is broadly premised on the idea that exposing law students to cognitive science and basic psychology would better equip them to achieve life-long learning and to acquire enduring practical lawyering skills. Psychology – the science of how people think and behave – has a great deal to teach us about the core competencies of lawyering. People who understand how others think, feel and behave, make better lawyers, decision makers and problem-solvers. Psychologists have conducted extensive research into psychological phenomena which are integral to effective lawyering. This research can be effectively incorporated into legal pedagogy, including how we teach law students to practice law. The proposal underpinning this research is the need for an undergraduate course on how psychology operates within the law, specifically designed to make students aware of how cognitive science and psychological phenomena affect and impact on the learning and practice of law. Developmental discourse regarding legal curricula entrenches the notion that law schools teach students how to think like lawyers but not how to be lawyers. The proposed response to this criticism is that metacognition – the awareness and understanding of one’s own thought processes – and the concomitant development of higher order thinking skills is key to the development of effective legal training, but this is presently absent in South African legal curricula. This thesis posits that experiential learning should begin before a student ever steps foot into a Law Clinic or a courtroom and that the reason why students leave law school unable to truly think like lawyers is because the notion is only truly introduced to them in their final year of law school, usually in the form of a clinical or experiential learning programme. The work contained herein is premised on the idea that legal educators ought to draw on the gains made by cognitive psychologists in understanding what happens when people learn and what neuroscience has to say about how people think and to introduce this to students at a relatively early point in their legal studies. The hypothesis underpinning this research is thus, that harnessing the science of psychology and allowing it to permeate legal pedagogy would be beneficial because the processes involved in both learning and lawyering are intricately linked to innate psychological processes and responses. Thus, the proposal is for an introductory course in basic legal psychology oriented at producing graduates who can think critically and solve problems pragmatically – graduates who are able to not only think like lawyers but also vi to act like lawyers. The research is significant as it explores the viability of such a course within the LLB curriculum at the University of the Witwatersrand and considers what such a course would look like in the South African context. An undergraduate course on psychology within the law would give students a sense of understanding themselves before they try to make sense of the actions and motivations of others (like clients, judges and opponents) when they enter their clinical programme. It is my contention that currently, legal education fails to adequately bridge the gap between law and practice because students are never taught to factor in the feelings, fears, concerns and motivations of themselves or others. A course, which exposes students to their own psychological motivations, as well as those of other players in the litigation arena, would give students the context of how to approach the acquisition of skills and the competencies required to practice law in a more pragmatic manner. Chapter 1 introduces the basic premise behind the research and orients the research focus. Chapter 2 explores both the theoretical and practical criticisms of traditional legal education locally and internationally. This chapter explores the need for the development of the South African LLB degree in the context of recommendations made by the Council for Higher Education (CHE). The chapter proposes the use of cognitive learning theory to maximise law school learning by drawing on research related to metacognition and the influence of learning styles. Chapter 3 introduces the importance of psychology within the law and orients the role of psychology in legal practice in the context of skills acquisition in undergraduate study. The chapter proceeds to isolate five indispensable legal skills required of law graduates to practice law and gives insight on how psychology impacts on the acquisition and use of those skills. This chapter advocates for the need for a stand-alone course on the study of basic psychology (including metacognitive learning) to improve lawyering skills. Chapter 4 focuses on the first part of course design, namely, the values, goals and outcomes of the proposed course on psychology within the law. This chapter engages with the values which underpin the course design process, the need to focus on law as being grounded in the humanities as opposed to being viewed as a science and the ultimate exorcism of the theory- practice divide. A proposal is made for the use of the unified learning model (ULM) in the development of the proposed course and lessons from experiential learning are used to set goals and outcomes for the syllabus. Lastly, the chapter focuses on the proposed placement of the intended course within the broader LLB curriculum. Chapter 5 focuses on the course methodology, course content and assessment of the proposed course. The chapter describes numerous teaching methodologies and their implications on the choice of course design model. Lessons on proposed course content from similar courses offered in the United States of vii America (USA) and Australia are used to construct a proposed syllabus, course outline and assessment plan for the course. Essentially, this chapter constructs a hypothetical pilot course for adaptation within the undergraduate LLB curriculum based on the goals, outcomes and placement referred to in chapter 4. Chapter 6 contains concluding remarks, reflective findings and proposals for the extension of this research.
Using a Multilevel Governance Framework for the Reform of the International Investment Law Architecture
(University of the Witwatersrand, Johannesburg, 2024) Mpofu, Kathleen; Forere, Malebakeng Agnes
International investment law has come under significant scrutiny over the last few years under what has been termed as a legitimacy crisis, with various stakeholders expressing concerns regarding its operation. These concerns cover both the substantive and procedural aspects of international investment law. In response to these concerns, states have, at varying levels of governance, taken steps to reform the international investment law system with some states focusing on procedural reforms and others focusing on substantive reforms. This thesis considers the effectiveness of the reform process taking place in the international investment law system and finds that the piecemeal and fragmented approach that has been adopted by states may not be able to address the wide range of concerns raised by stakeholders. The achievement of effective reform requires a holistic approach that not only focuses on systemic change in redesigning investment treaties but also on national reforms. This approach has largely been absent in the reform process. The question that arises is how to develop a system of international investment law, that can effectively regulate the relationships and tensions that arise in the use of FDI, that incorporates the needs of all stakeholders and allows the different levels of governance to effectively participate in the system. This thesis explores alternative methods of reform that go beyond the small mandate of the Working Group III reforms currently being discussed and that can adequately address broader concerns that arise within the international investment law system that affect the needs of other stakeholders beyond the needs of investors. In order to do this, the thesis made use of the multilevel governance framework to effectively organise and incorporate the different stakeholders and different levels of governance into the international investment law system. The principles that apply in the multilevel governance framework are useful in shifting the reform discussions from the narrow focus currently present in the reform effort, to exploring a wider range of issues and concerns faced by a wider range of stakeholders and proposing inclusive solutions that share and balance power between the different levels of governance. To rebalance the rights and protections granted in IIAs and incorporate the different levels of governance into the international investment law framework, the thesis clarifies the right to regulate by embedding it as a principle of customary international law, applicable regardless of its incorporation in the treaty. To allow for broader public interest considerations such as sustainable development to be incorporated into IIAs, the thesis proposes the use of framework v clauses (which operate much like framework agreements) in the text of the IIA which will establish the broader commitments of the parties and leave the setting of specific targets to national legislation. In so doing, regulatory power can be shared between the different levels of governance using the multilevel governance principles, allowing states to enact meaningful regulatory measures within the scope of the right to regulate. To incorporate the national level of governance in the dispute settlement process, the thesis recommends the incorporation of the exhaustion of local remedies rule and sets out how the competence to settle disputes can be shared between the national and international level in a manner that limits contestation and enhances co-operation. This is coupled with the creation of a multilateral investment court at the international level of governance that does away with the use of arbitration as a mode of dispute settlement, has a more court like structure, with increased rights of access and participation for third parties who can actively participate in the dispute settlement process and have their rights vindicated by the court. In this way, the recommendations in the thesis allow for the regulation of the different relationships that arise in the use of foreign direct investment and creates an international investment law system where the achievement of investment objectives and economic growth need not come at the expense of other equally important public international law considerations.
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
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.
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.
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
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
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.
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
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

Electronic Theses and Dissertations (PhDs)

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