School of Law (ETDs)

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    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, Nabeel
    This 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.
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    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.
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    The meaning of 'substantially all the trade' in article XXIV of the GATT and 'substantial sectoral coverage' in article V of the GATS
    (University of the Witwatersrand, Johannesburg, 2024) Mokgonyana, Karabo; Sucker, Franziska
    There has been an increase in the emergence and reach of custom territories in the form of regional or preferential trade agreements (RTA/PTAs). As of 01 January 2024 361 RTAs relating to trade in goods are in force and about 594 have been notified to the World Trade Organisation (WTO). Economic integration through RTAs has allowed traders from many countries to access the global market and function competitively. More so, economic integration contributes to increasing gross domestic product (GDP), developing new markets and attract new investments. Typically, RTAs provide their Members a trade advantage and are, thus, inconsistent with the Most Favoured Nation (MFN) principle. The WTO establishes an exception for such inconsistencies, provided the RTA in question meets specific requirements. Among these requirements, an RTA must cover 'substantially all trade' in terms of art. XXIV:8 of the General Agreement on Tariffs and Trade 1994 (GATT) and 'substantial sectoral coverage' in terms of art. V:1(a) of the General Agreement on Trade in Services (GATS). These terms have been inconsistently determined and applied by WTO Members, with no sight of a standard definition. Therefore, the purpose of this research report is to determine the definition for the requirements 'substantially all trade' and 'substantial sectoral coverage'. I approach this by first unpacking the purpose and background of RTAs and defining key concepts like FTAs and CUs. Second, I discuss the foundational MFN principle. I then discuss the legal requirements for invoking exceptions to the MFN principle for RTAs. Then I explore what substantially all the trade in art. XXIV of GATT and substantial sectoral coverage in art. V of GATS means. Finally, I determine a standard definition for both requirements.
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    An Analysis of the Fairness, Sufficiency, and Clarity of Section 71 of the Companies Act 2008 for the Removal of Directors
    (University of the Witwatersrand, Johannesburg, 2024) Shnketa, Isreal; Katzew, Judith
    The removal of directors in corporate governance is a subject of paramount importance, as it pertains to the dynamic equilibrium of power within a company. This research report delves into the intricate landscape of director removal by shareholders under section 71 of the South African Companies Act.1 Specifically, it scrutinises the contested view that shareholders are not obligated to supply motives for their removal decisions, relying solely on an ordinary resolution. This report examines the implications of the above provision on the delicate balance of power shared between directors and shareholders within the corporate structure. It traverses the historical evolution of director removal laws in South Africa, offering a comprehensive analysis of the legislative framework and its historical context. Furthermore, this report aims to critically assess the recent Miller v Natmed Defence (Pty) Ltd2 case, a landmark judgment, which like the case of Pretorius v Timcke3 challenges the conventional understanding of director removal. While Miller is currently binding only within a specific province, its dissent from the Pretorius case on the requirement for shareholders to provide reasons for director removal sparks debate and calls for further exploration by the higher courts. The findings of this research report aim to contribute to a nuanced understanding of the legal intricacies surrounding director removal and its implications for corporate governance in South Africa. The conclusions drawn shed light on the evolving dynamics of power, underscore the need for legal clarity, and beckon for potential legislative adjustments in pursuit of a balanced and transparent corporate landscape.
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    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, Sanya
    This 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 Zimbabwe
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    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,Mxolisi
    South 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.
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    Condonation of non-compliance under section 67(1) of the competition act 89 of 1998
    (University of the Witwatersrand, Johannesburg, 2023) Humphreys, Russell
    The Competition Commission has long sought to extend its powers to investigate and refer complaints to the Competition Tribunal for prosecution. Prior to the decision of the Constitutional Court in the case of the Competition Commission of South Africa v Pickfords Removals SA (Pty) Limited 2021 (3) SA 1 (CC) (the ‘Pickfords’ case), the power of the Commission to initiate investigations and therefore refer matters to the Competition Tribunal was limited by section 67(1) of the Act. Those accused of breaching the Competition Act 89 of 1998 have, in their defence, relied on the limitations of section 49B of the Competition Act - the procedure for initiating a complaint and section 67(1) which provides for a time limitation on initiating/referring a complaint to the Competition Tribunal. The Constitutional Court in the Pickfords case considered whether in light of section 34 of the Constitution, section 67(1) of the Competition Act should be interpreted as an absolute bar (a prescriptive provision) or procedural time bar (capable of condonation). Section 67(1) was, however, amended in 2018 to limit the referral of a compliant to the Tribunal to no more than three years after the practice ceased. This paper considers the statutory limitations on the Commission to initiate and refer complaints to the Competition Tribunal in terms of sections 49B, 50, 67(1) and section 58(1)(c)(ii) and to examine how these limitations have been by interpreted by our courts
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    The evolution of the test for rationality under the legality principle in South African administrative law
    (University of the Witwatersrand, Johannesburg, 2022) Bekker, Chrisna Jooste; Hoexter, C.
    The principle of legality was confirmed early in South Africa’s constitutional era as a product of the rule of law and the minimum standard to which the exercise of public power must be held to account. It has become an indispensable tool and ‘safety net’ to review administrative decisions where the action which it reviews does not constitute administrative action as it is defined in the Promotion of Administrative Justice Act, 2000. Rationality has emerged as the test applied in such reviews of whether the means applied to reach a decision are rationally related to the ends (the decision). Rationality has however come to comprise elements such as procedural fairness and -rationality that are not always consistently defined or applied by the courts. This variability and unpredictability lead to uncertainty in administrative law review which has the effect of causing the ‘safety net’ to stretch too far – by undermining the rule of law, the principle of legality itself and constitutional democracy
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    Procedural fairness and the principle of legality in south african administrative law
    (University of the Witwatersrand, Johannesburg, 2023-10) Khwidzhili, Ndaedzo Mahatm
    The principle of legality is an aspect of the rule of law which was intended only to review non- administrative action. It has been the subject of much development, and has now been developed into a gateway to review that closely resembles the PAJA. The introduction of rationality as an element of legality appears to have been the main protagonist in this development. The courts have, on a number of occasions, grappled with the question whether procedural fairness is a requirement under the principle of legality. Despite procedural fairness having been said to be a fundamental requirement of the rule of law, in Masetlha, the Constitutional Court held that procedural fairness is not a requirement under the principle of legality. Subsequent to that, in Albutt, the Constitutional Court found that rationality encompassed considerations of procedural fairness, and therefore that procedural fairness was in fact a requirement under the principle of legality. This caused an apparent tension between Masetlha and Albutt, which manifested in conflicting case law in relation to the requirement of procedural fairness under the principle of legality. However, the position has now been crystallized by the Constitutional Court, which found that there was no tension between Masetlha and Albutt but rather, that Masetlha was a case of procedural fairness and Albutt one of procedural rationality. This distinction reaffirmed the position in Masetlha that procedural fairness is not a requirement under the principle of legality, and also introduced a new orthodoxy of procedural rationality under the principle of legality. This Research Report illustrates how this distinction is based on a narrow interpretation of procedural fairness (in the form of audi alteram partem) which makes the new orthodoxy untenable. It argues that on a proper interpretation of audi alteram partem, procedural fairness may be a requirement under the principle of legality to the extent that it enhances rationality in decision-making (as was the case in Albutt). Furthermore, in contrast to the position in Masetlha, the Constitutional Court in Motau suggested that procedural fairness itself may be a requirement under the principle of legality. It would seem that procedural fairness may indeed be a requirement under the principle of legality
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    The bread cartel: can the conduct of firms in contravention of the competition act be recognised as a violation of human rights?
    (University of the Witwatersrand, Johannesburg, 2022) Motshidisi , Vilakazi
    Section 4 of the South African Competition Act, 89 of 1998 (‘the Competition Act’) prohibits horizontal restrictive practices in the form of price-fixing, market allocation, and collusive tendering. According to Maphwanya, cartels are among the most egregious forms of competition harm globally. Entities that form cartels frequently weigh the benefits of joining a cartel against the risks of being investigated by competition authorities (Maphwanya, 2017). The Pioneer Foods decision handed down by the Competition Tribunal (‘the Tribunal’) in 2009 charts a complaint lodged in 2006 against various bread manufacturers for allegedly engaging in cartel behaviour; in that these manufacturers engaged in a cartel which had the outcome of fixing the price of bread and dividing markets between themselves. Following the Competition Commission’s investigation and a determination that the bread manufacturers had indeed participated in the cartel, the Tribunal penalised the cartel members by imposing various administrative penalties. The conduct of the bread manufacturers occurred in a South African context, where bread is considered a staple food for many South Africans living in poverty. In light of the aforementioned decision, it is to be considered whether the coordinated conduct of firms seeking to raise prices to maximise on profits at the expense of ordinary and penurious South Africans should be considered a human rights violation. The impact of section 27(1) (b) of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’), which states that everyone has the right to access to food, will be considered explicitly in this report. Furthermore, the obligations of firms found to have violated the provisions of section 4 of the Competition Act are examined in light of whether private persons have constitutional obligations to provide access to food in accordance with section 27(1) (b) of the Constitution. To this end, reference will be made to the provisions of sections 8(2) and 39(2) of the Constitution