School of Law (ETDs)

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    A legal analysis of the complexity of race and gender disadvantage in terms of the Employement Equity Act in South Africa
    (2019) Mushariwa, Muriel Tapiwa
    Centuries of colonialism and Apartheid created a legacy of inequality in South Africa that the democratic Constitution, 1996, seeks to address. The constitutional mandate in section 9 of this Constitution, enacted through the Employment Equity Act 55 of 1998 (EEA), requires designated employers in the public and private sphere to address the inequality in the workplace through the application of affirmative action. The EEA identifies the beneficiaries of affirmative action policies as black people, women and persons with disabilities. It is clear that these constitute three distinct groups, but that it is also possible for an individual to belong to more than one of these collectives. For example, black women fall within two designated groups on the basis of race and gender, and this dual disadvantage creates a multi-layered, unique and complex type of inequality. The main aim of the EEA is to create a representative workforce, and designated employers have a duty to break down the barriers that prevent members of the designated groups from entering the workplace. Once employed, employers need to assist members of the designated groups to progress in the workplace. However, having a representative workforce does not translate into a transformed workforce. It will be argued in this thesis that a transformed workplace is representative, but also requires the breakdown of institutional norms, processes and structures that prevent the progression of members of the designated groups. The question to be asked is whether affirmative action, in its current form, is able to transform the workplace. To answer this question, it is vital that consideration be given, firstly, to the type of substantive equality that is to be achieved in the application of affirmative action. It will be shown that the aim should be a transformative substantive equality of outcome. Focus will be placed on the fact that individuals who fall within the designated groups are not equally placed in terms of their experience of disadvantage. It is submitted that consideration of differing experiences of disadvantage needs to be taken into account so as to avoid the creation of an elite middle class black, and possibly male, group, which benefits from affirmative action to the exclusion of others, thus hampering the achievement of equality in the workplace. This thesis will show that a transformative form of substantive equality of outcome needs to be applied to affirmative action in the workplace. This transformative form of substantive equality includes a situation sensitive approach to the implementation of affirmative action in the workplace. A situation sensitive approach will apply affirmative action strictly on a case by case basis with regard to the demographic profile of the specific workforce, and the employment equity policy of the particular workplace. A one size fits all approach cannot deal with the complexity of disadvantage that needs to be addressed. It will be argued that, besides a situation sensitive approach to race, gender and disability, the issues of social, political, economic and educational disadvantage are factors that should be given consideration in identifying the true beneficiaries of affirmative action. To further illustrate this point, particular attention will be given to women within the designated groups, in order to unpack the nature of disadvantage they experienced in the workplace. Two case studies, focusing on women in male dominated professions, the legal profession and the mining industry, will be used to illustrate this point. This thesis will show that ultimately, the goal of affirmative action must be seen to be to change the workplace by breaking down both the visible and invisible barriers of equality and, in doing so, create an environment where, constitutional values of equality, human dignity and freedom are truly recognized and protected.
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    Environmental spatial planning: achieving sustainable development in sensitive areas
    (2019) Snyman, Louis Gerhardus; Humby, Tracy-Lynn
    South Africa is at a crossroads. Near stagnant economic growth and rising levels of poverty are at the top of the political agenda. In response, the state has adopted a rapid developmental growth strategy in an attempt to build an efficient economy that makes inroads into reversing a legacy of social and economic marginalisation. In a rural context, this includes supporting large industrial developments which include extractives-related activities that exploit precious natural resources. The status quo has positioned many state-sanctioned development plans on a collision course with the sustainable utilisation of sensitive natural landscapes. It is thus vital to investigate how planners and decision-makers appropriately reconcile the seemingly conflicting environmental, social and economic considerations that constitute ‘sustainable development’. This fine balancing exercise requires tough compromises to create harmony between imperatives deeply embedded in the language of rights. The two intersectional areas of law at the centre of this debate are environmental management and spatial planning; each of which prescribe numerous tools that attempt to operationalise the balancing of the often conflicting imperatives within ecologically and culturally sensitive areas. The difficulty in managing development in sensitive areas is the application of interconnecting, yet often conflicting, legislative and governance systems. Therefore, the key research questions are: How are spatial planning and environmental management paradigms being applied in sensitive areas in South Africa? Moreover, what are the chief factors inhibiting or promoting the effective use of spatial planning and environmental management to achieve a reconciliation between development and conservation in sensitive areas? Lastly, what are the legal dimensions of these questions, if any? The purpose of this study is thus to suggest ways in which spatial planning and environmental management can be better integrated to achieve the desired outcome of sustainable development in sensitive areas. Although this is a pressing issue, little empirical research has been conducted in this specific area and previous work has failed to address the specific legal, institutional and operational obstacles that exist in creating a cohesive and inclusive system.
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    The authority of the United Nations Security Council to waive the personal immunity of heads of States in the context of international crimes
    (2019) Memela, Sinethemba
    In 1998, the Rome Statute of the International Criminal Court (ICC) was adopted with the aim of ending impunity for perpetrators of international crimes. Under Article 13(b) of the Rome Statute, if the United Nations Security Council (UNSC) refers a situation to the ICC while acting under Chapter VII of the UN Charter, the ICC is entitled to exercise jurisdiction over the territory and nationals of the relevant State that. In some cases, the referred State is neither a party to the Rome Statute nor has consented to its jurisdiction, and implicated senior officials of the state enjoy immunity. In terms of Article 27 of the Rome Statute, immunity does not bar the ICC from exercising jurisdiction. However, customary international law has historically afforded immunity to senior State officials, such as Heads of State, from prosecution. This dichotomy has been a challenge in international criminal law; specifically, the question of balancing the competing objectives of ending impunity for international crimes while maintaining stable relations and respecting the sovereignty of States by respecting customary international law rules on immunity. This challenge has been compounded by the question of the implication of a UNSC referral, of a non-State party to the Rome Statute, to the ICC on the immunity of implicated senior state officials of that State. Accordingly, this study is primarily concerned with whether, and the extent to which, the UNSC can waive the immunity enjoyed by senior state officials of UN Member States, particularly Head of State immunity, when it refers a situation to the ICC using its Chapter VII powers in the UN Charter. Before dealing with the above, the study analyses the concept of immunity, specifically personal immunity, in international law and the obligations of States to respect such immunity, taking into consideration their obligations under the Rome Statute as applicable.
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    Caught in a gap? An examination and human rights assessment of immigration detention laws and practices in South Africa
    (2013-03-19) Tay, Roanna
    Abstract: This study examines the laws and practices relating to immigration detention in South Africa. It provides an in-depth examination of the legislation, with reference to known state practices and cases where migrants have been subjected to prolonged and repeated periods of immigration detention. The study highlights gaps in South African law that contribute to certain categories of migrants being especially vulnerable to immigration detention. Four categories are identified: (1) asylum seekers; (2) persons with difficulty obtaining travel documents; (3) stateless person; and (4) persons subject to other prohibitions against refoulement. The study offers recommendations for legislative reforms to fill the gaps in the law that contribute to these migrants’ vulnerability to immigration detention