School of Law (ETDs)

Permanent URI for this communityhttps://hdl.handle.net/10539/37938

Browse

Now showing 1 - 2 of 2

Duties of private persons and the right to equality in South Africa
(University of the Witwatersrand, Johannesburg, 2023) Finn, Meghan; Albertyn, Catherine
To what extent does the right to equality (and specifically, the right not to be discriminated against unfairly) give rise to duties that are borne by private persons in South African law? This question is morally, legally and politically freighted in South Africa, marked as the country is by gaping inequality and the legacies of centuries of colonial, apartheid and patriarchal oppression that was sustained by not only the government, but also in private spheres. The overall project of this thesis is to map out and normatively justify South Africa’s approach to private anti-discrimination duties in the Constitution, legislation and emerging doctrine. Most surveyed jurisdictions use a test of publicness as a threshold determination of whether an entity is an anti-discrimination duty-bearer. Conversely, in South Africa, the possible class of duty-bearers is much wider – in principle, all persons as well as the state are duty-bearers. I argue that South Africa’s approach is substantiated by a legal endorsement of substantive equality which requires a historically and contextually sensitive analysis of systemic inequalities that cut across public and private spheres. However, although the class of anti-discrimination duty-bearers is broad, this does not mean that private duties exactly mirror the duties of the state. Instead, the scope for private discrimination to be justified – i.e. found to be fair – is generally broader than when the state is the discriminator. Courts are charged with determining the balance to be struck when private actors’ rights compete. I argue that this balance must be struck within PEPUDA’s section 14 fairness enquiry, which to date has been chronically neglected by litigants and courts
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.