School of Law (ETDs)
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Item The Role of Psychology in Legal Education: Incorporating Cognitive Science into Legal Pedagogy(University of the Witwatersrand, Johannesburg, 2024) Starosta, Paulina Dagna; du Plessis, RiettePrevailing 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.Item Using a Multilevel Governance Framework for the Reform of the International Investment Law Architecture(University of the Witwatersrand, Johannesburg, 2024) Mpofu, Kathleen; Forere, Malebakeng AgnesInternational 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.Item Balancing majority shareholder rights, minority shareholder rights and creditors rights in statutory mergers: in terms of the Companies Act 71 of 2008(University of the Witwatersrand, Johannesburg, 2024) Ado, Jean Philippe Mathurin SikCompanies in their various forms are crucial to South Africa’s economy and its prosperity as they contribute towards wealth creation, social renewal and social welfare. In our growing world and borderless international markets, there are ongoing changes that affects a company’s competitiveness and productivity both nationally and internationally. These changes may be brought by the necessity to abide by international company law standards and practices that to some extent are aiming at sustainable economic growth and profitability. The South African company law regime, introduced since 1926, has undergone a series of amendments to ensure that its national companies and stakeholders benefit from the most updated legal system to galvanise its economy. In so doing, mergers and acquisitions represent one of the most cutting- edge concepts of company law around the world that encompasses the social, economic and financial needs of companies and that have been introduced in the current national company law regime. This research paper analyses the protections of shareholders and creditors in the statutory merger contained in the Companies Act 71 of 2008. It discusses also whether these protections are adequately balanced towards a fair consideration of majority shareholders, minority shareholders and creditors’ interests — which includes consideration of their rights too — in implementing a statutory merger. The main findings are that some protections are not properly balanced in consideration of the aforementioned parties’ interests. These include the appraisal remedy, the merger agreement and the oppression remedy — between minority and majority shareholders — and the creditors’ notification coupled with the court review, the open transferability of creditors’ contracts and the solvency and liquidity test — between majority shareholders and creditors — which in some aspects offers uncertainty in protecting their applicants. The approach adopted in the Canadian cases of Black & Decker and Loeb, set out in section 2 below, emphasises the importance of policy considerations which must meet the stated goals of s7 of the Companies Act 71 of 2008.Item Balancing the odds: A law to legalise and regulate online gambling on casino games in South Africa(University of the Witwatersrand, Johannesburg, 2024) Bate, David John; Cachalia, FirozOnline gambling has become a pervasive phenomenon across the world. Yet South Africans enjoy limited scope to participate legally in this activity. Current legislation permits online betting on sports events (including horse racing) but prohibits all other forms of online gambling. Despite this prohibition, online gambling on casino games is widespread in South Africa. The Government has a choice: continue to criminalise the activity or follow international trends and allow the same. It initially attempted to legalise and regulate online gambling through legislation without success. It subsequently opposed (and continues to publicly oppose) any legalisation of the activity. Significant adverse consequences arise from continued prohibition of online gambling on casino games in South Africa including, inter alia: the spread of illegal gambling sites; loss of confidence in law enforcement; loss of tax revenues; discrimination against casino operators; loss of job opportunities; and inability to monitor and regulate online gambling activities. This study proposes key features for a law and licensing and regulatory framework to legalise and regulate online gambling on casino games in South Africa. It reviews regulation of online gambling on casino games in a representative sample of international jurisdictions to identify issues and best practices that may be germane to South Africa’s circumstances. It examines and analyses current and proposed legislation and stare decisis in South Africa to identify challenges and opportunities for further consideration as part of any process to legalise and regulate online gambling on casino games. It summarises and analyses public interest concerns that likely require redress as part of any such process. Based on these efforts, this study highlights fourteen areas of law and makes recommendations regarding specific interventions in those areas that may merit further consideration in development of any ‘made in South Africa’ solution to legalise and regulate online gambling on casino games in the country.Item A review of the latest developments in South African refugee law and policy in light of the country’s international obligations(University of the Witwatersrand, Johannesburg, 2024) Boda, NabeelThis research considered the issue of whether latest developments regarding South African refugee law and policies are aligned to the country’s international obligations. The motivation behind this research report is to contribute to academic and public discourse on human rights, migration, and global responsibility. Furthermore, this report serves as a platform for critical analysis, shedding light on the intricacies of South Africa's approach to refugees and asylum seekers in the context of its international commitments. It is imperative to comprehend the evolution of the legal framework governing refugees and asylum seekers in South Africa, given the significant presence of hundreds of thousands of refugees and asylum seekers within the country's borders. The question of refugees and asylum seekers is both a legal and political matter. Legally, it involves navigating international agreements and national laws that dictate how these individuals are recognised and protected. Simultaneously, the issue extends into the political sphere, where decisions on refugee policies are influenced by domestic political considerations, public opinion, and concerns about national security or economic stability. The interplay between legal principles and political realities shapes the approach a nation takes, highlighting the need for nuanced solutions that address both aspects of this complex challenge. The aim of this research report is to consider the recent developments of South African refugee law and policy and how it aligns with the country’s international obligations.Item A review of the right to basic education, the 2020 Covid-19 related schools' shutdown, and the courts in South Africa(University of the Witwatersrand, Johannesburg, 2024) Booi, Ntombizinhle PrincessOwing to COVID-19, the South African government ordered the closure of educational facilities in the country to try and curtail the spread of the virus. At the time, no one knew the extent to which the virus had spread, its potency for the South African public, how it impacted on children and what actions the government could take, besides locking down the country. Both the government and the public were facing a pandemic of this kind for the first time. However, the closure of schools placed the educational rights of learners under a spotlight, as under the Constitution of the Republic of South Africa, 1996, basic education is a right. The closure of the schools had many consequences for the right to basic education, including that education delivery, as it was then known, had to be changed. Yet, it is reasonable to assume that many schools were ill equipped for the sudden change which could not have been foreseen. To this end, there had to be a way forward for schools, and online learning became a viable avenue for ensuring that education did not come to a standstill. Yet again, it is reasonable to assume that many schools would not have had the capacity to transition to, let alone facilitate and maintain, online learning. A preliminary conclusion then would be that COVID-19 had a direct impact on the right to education. This is only the start, however, because the next line of inquiry would be whether the decision of the state to close educational facilities through the lockdowns was reasonable, and consequently justified considering the limitation it brought to the right to education. This report concludes by examining two cases that addressed these questions.Item Pharmaceutical patents and public health: facilitating access to affordable medicines in South Africa through trips flexibilities(University of the Witwatersrand, Johannesburg, 2024) Bouwer, Ryan; Andanda, PamelaThe Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) aims to strike a balance between the protection of creators and providing access to creative works to users of same. South Africa, as a member of the World Trade Organisation (WTO), has the flexibility to define its policy space in an internationally recognised and compliant manner to achieve an equilibrium between upholding public interest objectives and the private interests of patent holders in the field of health. South Africa has taken steps over the years to revise its medicine and intellectual property (IP) policies to address the issue of medicine access; however, implementation of reform is hampered by resource and capacity constraints, as well as economic and political pressures. As a result, the exorbitant pricing of pharmaceutical patented products continues to have an impact on the availability of essential medicines in South Africa. This report examines the functioning of the patents system in South Africa as it relates to the granting of pharmaceutical patents. The report discusses the link between intellectual property rights (IPRs) and public health and how the patent system can create barriers to access to affordable medicines. This report contends that the current patent climate exists due to shortcomings in South Africa’s Patent Act of 57 of 1978 (Patents Act) and its under-utilisation of TRIPS flexibilities. Pharmaceutical companies have exploited the current patent regime through evergreening and other abusive practises, resulting in the postponement of off-patent drugs and stifled competition, ultimately at the expense of public health. This report seeks to determine the extent to which South Africa has implemented TRIPS flexibilities in promoting access to affordable medicines in the realm of pharmaceutical patents, as well as whether South Africa can strike a balance between protecting pharmaceutical innovation and public health. It concludes by looking at how competition policy can be used to correct the imbalance and suggests that a focused and convergent approach to capacity building and transnational collaboration be employed.Item Effects of Investor Treatment on FDI Inflow: Developed v Developing States(University of the Witwatersrand, Johannesburg, 2024) Carides, TelisIt has been widely accepted that investor treatments afforded by states alone do not have a significant impact on FDI inflow. Rather, FDI inflow has been shown to be dependant on numerous other factors. This has however been traditionally examined against the backdrop of an ever-more globalised world, whereas more recent years have seen an uncharacteristic slowdown in globalisation, and indeed has ushered in a post-pandemic anti-globalisation trend. During this period, FDI in developed and developing states has faired very differently. Specifically, FDI into developing states has proven significantly more resilient compared to their developed counterparts, and indeed has overtaken developed states in net FDI inflow for the first time. Can this resilience be attributed to divergent approaches in investor treatments? This enquiry was undertaken by examining representative proxy states from the pool of developed and developing nations. After carefully electing said proxy states from both ends of the FDI inflow spectrum, I analysed whether, and to what extent they provided the most considered investor treatments; MST/FET, NT, MFN, pre-establishment protection and protection against expropriation. Notably, although the USA generally provides for these protections and is at the top of the FDI spectrum, Angola remained at the bottom of the spectrum whilst providing similar, and indeed broader protection in the case of NT and MFN. Furthermore, the Netherlands is the only state lower than Anglo during the examined period, yet it, save for pre-establishment protection, offered similar treatment. The study in casu was unable to establish that differences in investor treatments had any bearing on FDI inflows, and could not account for the converse performance of developed and developing states during the anti-globalisation period.Item nformation Asymmetry and Merger Performance on the Johannesburg Stock Exchange(University of the Witwatersrand, Johannesburg, 2024) Dludla, Sambulo Siyanda; Chipeta, ChimwemweThis study examines the impact of information asymmetry on the long-term performance of mergers and acquisitions (M&A) on the Johannesburg Stock Exchange (JSE). The empirical test evaluates the 3-year period of share performance from 2001 to 2019. An event study methodology is utilized to evaluate the relationship between information asymmetry and M&A performance after the deal's completion. The study interrogates the relationship between information asymmetry through proxies and the M&A performance measures (BHAR & CAAR) and the relationship between the deal specific variables and the M&A performance measures. The results reveal several information asymmetry proxies (SPREAD, VOLATILITY, TRADED VOLUME, and TRADED VALUE) exhibit a statistically significant relationship with one or more M&A performance measures in the panel OLS fixed effects model. However, ANALYST COVERAGE was not statistically significant for M&A performance. This suggests that information asymmetry impacts M&A transactions on the JSE on the long run. Additionally, mixed results are observed in the Generalised Method of Moments (GMM) regression. When observing deal-specific variables, the panel OLS regression emphasises their significant relationship with M&A performance, particularly against the CAAR, rejecting the null hypotheses for cash, mixed, size, leverage, and value variables at a 1% or 5% level. Controlling for the financial industry, both panel OLS regression and GMM show a significant relationship between CAAR, which is consistent with Harford's (2005) concept of M&A waves and industry clustering. This emphasises the critical role of industry dynamics on M&A performance. The results suggest that management and investors need to be aware of the information asymmetry in the market when conducting and concluding an M&A transaction. Moreover, management and investors must be aware of the information asymmetry in the market in the long run post-merger.Item Beyond the click: Informed consent in the age of cookies(University of the Witwatersrand, Johannesburg, 2024) Finger, Mokone; Visser, C.Rapid evolution of technology and the internet has enabled vast data to be exchanged amongst people. These changes have introduced extraordinary data collecting methods that also recognise traces of personal information when users browse the internet. An example of such a tracking method is a cookie. Cookies, while they serve to enhance user experience, tend to collect and store personal information of data subjects without their knowledge and consent. For this reason, they raise a question of a threat to privacy and consent of data subjects. This research report principally examines the legal sufficiency of a mere click of a button in establishing valid consent for processing of personal information, which includes the collection, storage and transmission of personal information through cookies. The Protection of Personal Information Act 4 of 2013 (the POPI Act) was enacted to give effect to the constitutional right to privacy. Thus, the POPI Act operationalises the constitutional right to privacy by providing a framework for the processing of personal information, even though its application has shortcomings related to consent and cookies. In order to interpret the POPI Act, this paper will integrate the common law and the General Data Protection Regulation 2016/679, based on the adjudicative subsidiarity doctrine, as constitutional backdrop instruments to determine the threshold for consent in the POPI Act when using cookies.