Electronic Theses and Dissertations (Masters)
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Item Limitations of litigation as a tool for achieving social change: A perspective on South African and Zimbabwean litigation environment(University of the Witwatersrand, Johannesburg, 2024) Sigwegwe, Dumolwethu; Samtani, SanyaThis research report seeks to investigate and analyse the limitations of using litigation as a tool for achieving social change in the legal environments of South Africa and Zimbabwe, with a particular focus on relevant provisions in the Constitutional framework. In other words, I consider how litigation related to socioeconomic rights, with a particular focus on the right to healthcare, has been limited in its capacity to bringing about societal transformation. Juxtaposing these legal systems should highlight the opportunities and challenges of utilising litigation. In South Africa the 1996 Constitution, and in Zimbabwe the 2013 Constitution play a significant role in shaping socio-economic rights, enhancing access to justice, and promoting social transformation. Further, the Bill of Rights and the Constitutional Court all contribute to the potential effectiveness of litigation. Relying on the Constitutional framework, literature concerning the effectiveness and critique of litigation, and case studies from South Africa and Zimbabwe the article illustrates the potential and shortfalls of litigation in advancing socio- economic rights. The argument highlights that litigation has made substantial advancements in effecting systemic and policy changes, as well as in holding governments accountable. However, it also emphasizes the existence of potential obstacles, such as the failure to implement court orders, institutional barriers, and structural or procedural issues that require addressing in the pursuit of societal transformation. The research report concludes that whilst litigation can be seen as just one tactic in the repertoire for challenging societal and systemic injustices, it must however, be complemented with a broad range of strategies that include advocacy, grassroots movements, and policy reform, to address the complex underlying causes of social issues effect social change in South Africa and ZimbabweItem Intimate partner killings, criminal defences and the law(University of the Witwatersrand, Johannesburg, 2024) Sithole, Patience ThandekaThe Constitution of the Republic of South Africa, 1996 in section 9 resoundingly guarantees the ‘equal protection and benefit of the law’ to all who are within the Republic. This undertaking is a crucial part of the South African democracy, and it is a manifestation of the law’s progression from being grossly and arbitrarily discriminatory, to becoming more inclusive and considerate of people from all walks of life. Contrarily though, a close analysis of some aspects of the law as it currently exists, shows that equality before the law is more aspirational than it is a reality. Women, in particular, are often overlooked and subjected to unfairness by the same law that, in theory, vows to protect them. The lack of accommodation of abused women who kill, by the private defence ground of justification, under criminal law is an apt example of the law’s marginalisation of women. This marginalisation manifests itself in the rigid approaches to cases of abused women who kill. The typical approach is the objective ‘reasonable person’ standard which is effective in most instances but has fallen short in cases of abuse, as such cases require consideration of the abused woman’s unique set of circumstances. This calls for a closer exploration of the specific and subjective factors of women’s experiences in order to comprehend the nature and extent of the abuse. Although expert witness evidence is admissible in these cases, the weight placed on such evidence is minimal, often leading to a miscarriage of justice. In view of that, this paper serves to play a dual role of re-identifying the inadequacies that continue to exist under the private defence laws in South Africa, while simultaneously providing recommendations on how the law can be developed to successfully address these inadequacies.Item The role of the company secretary in promoting good corporate governance in South Africa(University of the Witwatersrand, Johannesburg, 2024) Thabit, ShaaistaThe global prevalence of corporate scandals involving misconduct has drawn public attention to corporate governance, highlighting the role of the company secretary as a key corporate governance officer. However, company secretaries are often overlooked, despite their importance for facilitating corporate governance. The term ‘secretary’ itself is misleading, as it suggests a purely administrative position. Prior to the role’s development, the connotation was correct. Company secretaries were known as the administrative officer of the company. The implication of this has been, and remains, that the role is not fully leveraged. This view contrasts with the multifaceted functions company secretaries perform today in corporate governance matters and beyond. The emphasis on corporate governance has resulted in modern company secretaries taking on a range of positions with broader powers and extensive duties transforming their roles into guardians of corporate governance. The position is already incorporated into governance codes, the recent Companies Act 71 of 2008 and practice. However recent corporate failures raise concerns whether the role of the company secretary within South Africa's corporate governance framework has the potential to fulfil this corporate governance expectation. This research report will discuss how factors such as the historical marginalisation, legal ambiguity, lack of knowledge and framework fragmentation of the role has contributed to its underutilisation and undervaluation. Effectively hindering it from reaching its full potential within corporate governance and relegating it to the status of an unrecognised hero despite its significant role in corporate governance. This research report further examines the role of the company secretary within the corporate governance framework, highlighting its potential to succeed in this crucial corporate governance position and proposing improvements to maximise this potential. This research report asserts that selection, implementation and utilisation of a suitable company secretary can prevent or mitigate instances of poor corporate governance and, in some cases corporate scandals, bringing to the fore a new corporate ‘governance hero’.Item The WTO law consistency of the data localisation requirements in section 72 of POPIA(University of the Witwatersrand, Johannesburg, 2024) Thomas, Nkosinathi Benny; Sucker , Franziska; Ngulube,MxolisiSouth Africa's Protection of Personal Information Act ('POPI'), officially promulgated on 1 July 2020, was enacted to legislatively ameliorate South Africans' constitutional rights to not have their privacy infringed. POPI generally establishes a mechanism to ensure that persons have a say in the collection, processing and storage of their personal information. This is done through a regulatory mechanism which prescribes the limits and compliance requirements for the aforementioned activities. As part of its suite of protections, POPI in section 72 thereof, prescribes limits and conditions for the cross-border transfer of personal information collected in South Africa. Section 72 of POPI is a conditional data localisation provision because it prescribes the circumstances under which personal information collected in South Africa may be transferred extraterritorially. On the assumption that unhindered flow of data is required for the enablement of digital trade, I ascertain whether section 72 of POPI is consistent with the laws of the World Trade Organisation. In particular, I ascertain whether section 72 of POPI is consistent with the relevant provisions in the General Agreement on Trade in Services ('GATS'). To the extent that section 72 of POPI is inconsistent with the relevant provisions in GATS, I conclude that section 72 of POPI is justified pursuant to the exceptions in GATS.Item Universal internet access in South African disadvantaged communities: is there adequate regulation?(University of the Witwatersrand, Johannesburg, 2024) Thomas, KhayakaziAs a result of the advent of the fourth industrial revolution, artificial intelligence, the technology of things and other similar technologies, information communications technologies (ICT) form the basis of our routine lives and sit at the core of both economic and social development. Therefore, the advancement of universal access and service is indispensable for the equal and full enjoyment of all freedoms and rights by all and provides for the improvement of the quality of life for all citizens, and further presents a gateway to freeing each person's potential, as envisaged in the Constitution. This is particularly true for the digitally marginalised situated in informal settlements, townships and remote rural areas (Disadvantaged Communities). Notwithstanding the above, statistics show that to date the digital community in South Africa is still very much skewed towards the affluent urban communities, with only 1% of rural households able to access the internet in their homes. Achieving universal access and service in Disadvantaged Communities is a key policy goal in a democratic society such as ours. It is in light of this that this research report presents a multi-method research approach to holistically conclude on the adequacy of the South African regulatory framework to drive the advancement of universal access and service in Disadvantaged Communities, and recommend law reform. This entails a review of the regulatory framework governing universal access and service (in the South African historical background context under the apartheid regime) compared against international best practices on the regulation of universal access and service in Disadvantaged Communities (using the prevailing socio-economic realities in Disadvantaged Communities as guiding principles). The research report findings, taking into consideration the South African historical background and the prevailing socio-economic realities in Disadvantaged Communities, indicate that the South African regulatory framework is to a great extent on par with international best practices on regulation aimed at the advancement of universal access and service in Disadvantaged Communities, barring its unsuccessful implementation. The research report identifies that the unsuccessful implementation of the regulatory framework is largely owing to its fragmentation (i.e., the regulatory framework relies on vast legislation, policies and regulations and different stakeholders for its implementation). Therefore, the proposed law reform constitute regulatory framework structural measures aimed at redressing the identified fragmentation so as to achieve a regulatory framework that adequately facilitates the implementation of the universal access and service objective in Disadvantaged Communities..Item South Africa’s greylisting due to deficiencies in its corporate legal framework on illicit financial flows: is there a need for measures enhancing transparency in relation to beneficial ownership?(University of the Witwatersrand, Johannesburg, 2024) Tshinaba, Tshianzi Palesa; Samaradiwakera-Wijesundara, CharmikaOn 24 February 2023, the Financial Action Task Force’s decision to ‘grey list’ South Africa sent shockwaves through the Republic, placing it under increased monitoring by the intergovernmental body. The economic consequences thereof are dire: loss of investor confidence, increased difficulty in obtaining donor funding from abroad, among many others. The greylisting is a consequence of South Africa’s failure to address the deficiencies in many aspects of its anti-money laundering and counter-terrorist financing regime, including those relating to the obscure beneficial ownership framework designed for companies that operate within its territory. Motivated by the pressure of being greylisted, the South African government is in the process of establishing a new beneficial ownership regime that is much more transparent and aims to prevent the use of companies by their beneficial owners to facilitate illicit financial flows. However, the obscurity of the “old” beneficial ownership regime was rooted in the need to protect beneficial owners’ privacy and safety. It is on this basis that this paper investigates whether there is truly a need for a new beneficial ownership regime and, if there is, whether the regime being established by the South African government will be effective in preventing and deterring beneficial owners from using companies as vehicles through which they can engage in illicit financial flows in and out of the Republic.Item Exploring Transnationalism in Ground-Breaking South African and Global North Climate Litigation(University of the Witwatersrand, Johannesburg, 2024) Wadiwala, Zunaida MoosaClimate litigation represents a way to battle against the worsening climate crisis. With a focus on the role of courts in transnational climate change litigation, evidence presented in this dissertation aims to uncover the scope and meaning of transnationalism in climate litigation, and to explore the system of transnational climate governance emerging from ground-breaking litigation. This dissertation proceeds from two objectives, the first of which examines how, if at all climate jurisprudence is transnational in character. Global climate litigation is a growing phenomenon, and this work analyses what the scope and meaning of transnationalism in climate litigation entails for a system of global climate governance. The second objective considers what the place of South Africa is in a system of transnational court-led governance; and how Global North judgments cognise the impacts of judgments in South Africa, if at all. To lay the groundwork for the development of a transnational analytical framework with which to reach answers to the objectives, the dissertation recognises differences in the definition of climate litigation and identifies claims that underpin transnational climate litigation. These claims include the human rights turn, the role of courts in climate governance, remedies and mitigation and adaptation-based climate litigation. Grappling with the concept of transnational climate litigation, the dissertation applies four theories of transnationalism to climate litigation, and themes from these theories enabled the development of a transnational analytical framework with which to analyse cases. The three South African cases used are Earthlife Africa Johannesburg v The Minister of Environmental Affairs and Other (Earthlife), Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (Shell), South Durban Community Environmental Alliance and Another v Minister of Forestry, Fisheries and The Environment and Others (Eskom). Cases used from the Global North jurisdictions are The State of the Netherlands v Urgenda (Neth. Sup. CT) (Urgenda), Friends of the Earth Netherlands (Milieudefensie)et al v Royal Dutch Shell (Milieudefensie), and Neubauer et al v Germany (Neubauer). As the dissertation concludes, findingItem An Analysis of Statutorily Imposed Sectorial Affirmative Action Targets(University of the Witwatersrand, Johannesburg, 2024) Willem, Kegomoditswe Daphney; Van Staden, MarthinusThe World Bank has classified South Africa as the world's most unequal country.1 The circumstances inherited from the Apartheid regime have been noted as contributors to the increase in inequality.2 While the government has enacted legislative restitutionary measures to address the inequalities caused by the Apartheid regime, the pace at which these measures are addressing inequity has been regrettably slow. The Employment Equity Act3 (EEA) was enacted to mitigate the effects of workplace discrimination by prohibiting unfair discrimination and requiring employers to implement affirmative action measures to ensure that their workplaces are representative of the country’s demographics.4 Preferential treatment of people from designated groups and numerical goals set by designated employers to increase the representation of suitably qualified people from designated groups in the workplace are some of the affirmative action measures that designated employers are empowered to implement.5 The Employment Equity Amendment Act6 (EEAA) will introduce a shift in South Africa’s approach to transformation of workplaces from a self regulated approach to a statutorily prescribed approach in terms of which the Minister of Employment and Labour will prescribe sectorial targets which each economic sector will be required to comply with. The acceleration of workplace transformation is crucial to address previous disadvantages. However, the statutorily prescribed approach to affirmative action may not be an appropriate approach for South Africa in circumstances where the EEA has not be utilised to its full potential and the new approach may pose a risk to employees’ right to equality.Item Bypassing the union: An Employer's Right to Negotiate Directly with Striking Employees(University of the Witwatersrand, Johannesburg, 2016-08) Nkosi, Thulani Gift; Mahomed, ShahedaSouth African labour law influenced by the Constitution and notions of equity and fairness has undergone a total change and will, without doubt, continue to change to meet the ever changing nature of employment it seeks to regulate. It is after all in the nature of all laws to change with the society they seek to regulate and our labour law is no exception. Recently, focus has shifted to the institution of collective bargaining and the questions posed are whether our labour laws as they currently stand are capable of adequately regulating the process of collective bargaining in such a way that the main objective of collective bargaining which is to bring about industrial peace is promoted and maintained at all times. These questions are posed on the back of the unprecedented spates of prolonged violent strikes that have resulted in the destruction of property and loss of life as well as unimaginable financial losses not only for the employers affected but also for the economy as a whole. These unprecedented prolonged violent strikes have caused employers to engage in bargaining conduct that could erode the participation of trade unions from the collective bargaining process which bargaining conduct takes the form of employers bypassing trade unions and negotiating with striking employees directly. But do employers have a right to bypass trade unions in this way? This paper investigates this question against the background of the case of Amcu v Lonmin where the Labour Court on application by a trade union had to decide whether to grant an urgent interdict restraining employers from negotiating directly with striking employees. The employers considering themselves to be acting within their rights opposed the application. The Labour Court unfortunately dismissed the application on technical grounds relating to the lack of urgency without considering or deciding this question. This paper accordingly picks up the debate; considers the historical evolution of collective bargaining in our labour law including the voluntarist argument that is said to be embodied by the Labour Relations Act (LRA), and concludes that when all things considered employers in fact do not have a right to bypass trade unions. If employers had this right certain provisions of the LRA that guarantee trade union participation would be rendered nugatory and the whole collective bargaining process would become unworkable. The LRA envisions that once parties have voluntarily embarked on collective bargaining they bargain in good faith and do not bypass each other.Item Financial inclusion in South Africa: An analysis of the financial sector regulatory framework and proposals for reform(2018-09) Duma, Amanda; Kawadza, HerbertAbstract Not Available.