School of Law (ETDs)

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Subject: search.filters.subject.SDG-10: Reduced inequalities

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    Towards a competitive law of public procurement in South Africa
    (University of the Witwatersrand, Johannesburg, 2024) Khumalo, Phumelele
    Collusion among firms is widely recognized as a serious violation of competition law globally. Bid rigging, a form of collusion, is particularly concerning in public procurement, leading to the OECD's adoption of Guidelines for fighting Bid Rigging in Public Procurement in 2009.1 Collusive tendering is significant because it affects public spending, impacting the South African economy's production and supply of goods and services.2 The substantial sums involved in public procurement make it susceptible to corruption.3 Recently, a Public Procurement Bill was introduced in Parliament in May 2023, aiming to establish a comprehensive national law governing public procurement, including preferential procurement. Simplifying the legal framework is a crucial step the government can take to enhance the public procurement system. The research aims to analyse South Africa's current public procurement process and address concerns related to anticompetitive practices. Following South Africa’s transition to a constitutional state, key reforms were introduced, including establishing constitutional principles governing public procurement and creating a unified national legislative framework through the Public Finance Management Act (PFMA),4 and the Local Government: Municipal Finance Management Act (MFMA).5 A competitive public procurement system is not only constitutionally mandated but also vital for the proper functioning of the government and the delivery of services, which are crucial for the country’s advancement, development, and social welfare. The report will specifically examine the legal landscape of public procurement in the construction sector and seeks to contribute to the promotion of effective competition in South Africa’s public procurement process by exploring how the development and implementation of procurement procedures can enhance the competitive nature of public procurement law in the country. To achieve this, it's essential for the government to take action to ensure that the procurement process is characterized by openness, transparency, and fairness for all bidders. Developing procurement procedures that emphasize fairness, openness, and competitiveness is essential in mitigating unwarranted limitations on competition in South Africa. This can be accomplished through practices such as transparent and open tender processes, the use of clear and objective evaluation criteria, support for small and medium-sized enterprises (SMEs), and the adoption of e-procurement systems.
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    The meaning and role of the ‘pass-through analysis’ in subsidy and countervailing investigations
    (University of the Witwatersrand, Johannesburg, 2024) Naidoo, Darshen; Sucker, Franziska
    This research examines the complex issue of subsidies granted to input resources used in the production of goods traded internationally. The focus is on the "pass-through analysis," which determines whether subsidies benefiting input resources should be considered in countervailing measures imposed by importing countries. The study investigates the legal framework governing this analysis, its challenges, and the ambiguity surrounding its interpretation by the WTO Dispute Resolution Body. The research aims to shed light on this vague concept and provide recommendations for clarification. The study begins by exploring the fundamental concepts of subsidies, their benefits, and preconditions, before delving into the intricacies of countervailing investigations. The findings will contribute to a deeper understanding of the pass-through analysis and its implications for international trade law, ultimately informing policy decisions and promoting fair trade practices.
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    Achieving SDG 10: What role for Competition Law and Policy?
    (University of the Witwatersrand, Johannesburg, 2024) Rampai, Karabo; Vinti, Clive; Beyleveld, Alex
    nequality has been one of South Africa’s biggest challenges and with stagnating economic growth, the future does not look enticing. If the country wants to ultimately achieve sustainable equality, an extensive legislative scheme that caters for the present and the future is crucial. The implementation of these legislative schemes should not give complete precedence to measures which lead to economic growth. This is because economic growth does not automatically lead to poverty reduction or reduced inequality. Poverty and inequality have increased in most countries over the last decades despite decent economic growth rates because the capital growth mostly goes to the top of the income distribution and does not trickle down. Rather, legislative schemes must apply measures which promote and emphasise participation of historically disadvantaged persons in the economy. This kind of approach is good because it decreases levels of inequality in such a manner that is good for sustainable economic growth. Furthermore, this approach shares similarities with the United Nations Sustainable Development Goal 10: Reducing Inequalities and it is also cognisant of the economic circumstances in South Africa and has had relative success when executed correctly.
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    An Analysis of Statutorily Imposed Sectorial Affirmative Action Targets
    (University of the Witwatersrand, Johannesburg, 2024) Willem, Kegomoditswe Daphney; Van Staden, Marthinus
    The 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.
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    The Decriminalisation of Sex Work as a Human Rights Issue in South Africa
    (University of the Witwatersrand, Johannesburg, 2023) Khumalo, Thandoluhle
    This research report argues that sex work be decriminalised in South Africa to avoid further human rights violations against sex workers, with a particular focus on the human rights violations perpetuated against sex workers during the COVID19 pandemic. To make these arguments the report sets out the background of sex work and the origins of the various laws that have emerged over the years to regulate sex work in South Africa. Further, it investigates how sex work is governed in various countries around the world and uses New Zealand and other African countries as examples of the different approaches to legislating sex work. The report focuses on the effect of the COVID19 pandemic on female sex workers who make up the majority of sex workers. This research report grounds its assertions in the various human rights considerations found in international legal instruments as well as the Constitution of the Republic of South Africa, 1996 (Constitution) as they relate to sex work. The conclusion is that sex work should be decriminalised in South Africa as the current laws that seek to prohibit sex work in South Africa are both unconstitutional and not compliant with international human rights standards
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    The constitutionality of trophy hunting of threatened or protected listed species in South Africa
    (University of the Witwatersrand, Johannesburg, 2022) Lopes, Rui Jorge Coelho; Cameron, Justice Emeritus Edwin
    Whilst South Africa continues to grapple with its radical levels of social and economic inequality within the country, the lucrativeness of natural resources forming part of the environment as a tool to bringing about redress to such inequalities becomes an ever-increasing consideration. Although there is merit in the statement that the use of natural resources may seek to alleviate social and economic inequality, our courts have already held that the provisions of section 24(b)(iii) of the Constitution of the Republic of South Africa (the “Constitution”) are required to link and intertwine the concepts of conservation with sustainable use and development, for unfettered use of natural resources may not be regarded as sustainable, and will ultimately lead to the decline of ecological conservation and biodiversity. This has, however, contributed to the increase in human-wildlife conflict and the increase in consumptive and extractive use practices in relation to the natural resources of the environment, and the consideration of trophy hunting, and in particular the trophy hunting of Threatened and Protected Species (“TOPS Species”) is not separate n or excluded from this consideration and the ultimate impact such has on biodiversity loss and ecological degradation. The continued race to the bottom of species both locally and globally, coupled with the vested financial gains sought to be obtained from the increased rarity of species subjected to trophy 3 hunts, seeks to bring into question whether the engaging or permitting of the trophy hunting of TOPS Species may fall foul of the provisions of section 24 of the Constitution. Accordingly, this research report seeks to consider the constitutionality of the trophy hunting of TOPS Species and how this practice is required to be viewed through the constitutional lens under which it takes place
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    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
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    Institutional racism and its oppression of the black employee’s economic freedom
    (2021-11) Lubile, Nyota C.S
    Institutional racism can be identified as a prominent factor, amongst numerous others, in the slow progression of the black population in the South African workplace. Consequently, due to the perpetual undermining of the black race and their professional capabilities, this leads to the rather slow (socio-) economic growth and progress of the black workforce and population in the long run. This report considers the extent to which institutional racism still has an impact on the (socio-) economic emancipation of the black worker which ultimately limits their standard of living. The origin of institutional racism from the colonial and apartheid era lay the foundation for the report, the effectiveness of corrective policies and legal frameworks are explored together with the elements of Critical Race Theory and how they are relevant to the issues pertaining to institutional racism in the workplace. Two areas that are specifically looked into are institutional racism against women and black women particularly as well as its presence in the legal profession. From a statistical perspective, theory is translated into numbers – the findings support and demonstrate how indeed there is a large gap between the saturation of the white race and the black race at different skills levels in the workplace as well as in business management and ownership in comparison to the economically active population of each race group. This corroborates the findings of the literary research in that systemic racism is still a major barrier to the elevation and progressions of the black population in the workplace and ultimately in their general standards of living
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    The need for legal reform to effectively protect the rights of queer-sexual pupils in south african public schools
    (University of the Witswatersrand, Johannesburg, 2022) Booi, S
    The South African community largely consist of marginalized and/or vulnerable groups, one of which is the queer-sexual community. This paper seeks to direct the attention of the social justice advocacy towards the children members of this groups. Within all the marginalized and vulnerable groups, children are the worst off. This study will focus on the children of the queer-sexual group, particularly, public school pupils. The ‘queer-sexual’ concept will be used to loosely mean children who are not heterosexual. Through examples of legal reforms that have proven, to an important extent, effective in protecting queer-sexual adults; and comprehensive research on how basic education schooling environment fails to offer queer-sexual pupils’ substantive equal opportunity to learn, this paper will prove the necessity of statutory intervention to achieve an effective protection of the right to equality for queer-sexual pupils in South African public schools. While the Constitution of the Republic of South Africa (hereinafter referred to as the Constitution) guarantees equal rights for everyone, it is the statutory regulations that give effect to the constitutional broad provisions. To a certain and significant extent, the amended Intestate Succession Act and Civil Union Act have given effect to the protection of adult queer-sexual identities. However, the existing children-centred statutes do not make specific provision for the recognition and protection of queer-sexual children, the result of which is lack of a legal regime that protects queer-sexual identities of children. While a society’s voluntary recognition of the existence and subsequent acceptance or tolerance of queer-sexual children is ideal, this paper will only focus on the necessity of legal mechanisms to protect the rights of minorities. Considering the efficacy of statutes such as the Employment Equity Act that fosters implementation of policies that vehemently prohibit discriminatory conduct and sexual harassment in the workplace, the obedience fostering character of the law makes the law integral to the protection of queer-sexual children
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    At the crossroads of international human rights law and international investment law: reflection on the right to development in the exercise of expropriation
    (2021) Kim, Young Jae
    Given the current legitimacy crisis of international law, particularly the international law of investment owing to fragmentation and the negative impact of unfettered economic development on the environment and human rights, competing claims between North and South, sovereign states and multinational corporations, and sovereign states and their nationals over development and its benefits must be effectively and legitimately reconciled before any strategy to promote development can be implemented. In this respect, the human right to sustainable development, which this thesis introduced, provides a framework in which the potential competing claims of economic value and human rights value can be reconciled. This thesis considers the interplay of international development law, international human rights law and international investment law, by reference to the evolution of a right to sustainable development. In particular, it focuses on how the international investment law regime has evolved to incorporate human rights and sustainable development, by examining expropriation as a case study. The thesis traces the concept of development as it underlines international development law, and shows how it has moved from ‘orthodox economic development’ to ‘modern human development’ by means of the evolution of the human right to sustainable development. It proceeds to contemplate the content of this human right to sustainable development, with a view to demonstrating its relevance to international investment law. Thereafter, it shows how international investment law has evolved over time, from being narrowly focused on upholding foreign investors’ interests and rights, to taking into account international human rights and the human right to sustainable development. As a concrete example of this shift in international investment law, the thesis then conducts a case study of expropriation, which illustrates the increased interaction between the three clusters of international law. In particular, the protection of foreign investors’ rights and host states’ rights to regulate foreign investment for the purpose of ensuring international human rights and sustainable development are explored through leading cases in international investment tribunals. In conclusion, it is argued that the legitimacy of the international investment law regime can be enhanced through continuing efforts of the international community to harmonise the three clusters of international law within the human right to sustainable development .