School of Law (ETDs)
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Item Exploring Transnationalism in Ground-Breaking South African and Global North Climate Litigation(University of the Witwatersrand, Johannesburg, 2024) Wadiwala, Zunaida MoosaClimate litigation represents a way to battle against the worsening climate crisis. With a focus on the role of courts in transnational climate change litigation, evidence presented in this dissertation aims to uncover the scope and meaning of transnationalism in climate litigation, and to explore the system of transnational climate governance emerging from ground-breaking litigation. This dissertation proceeds from two objectives, the first of which examines how, if at all climate jurisprudence is transnational in character. Global climate litigation is a growing phenomenon, and this work analyses what the scope and meaning of transnationalism in climate litigation entails for a system of global climate governance. The second objective considers what the place of South Africa is in a system of transnational court-led governance; and how Global North judgments cognise the impacts of judgments in South Africa, if at all. To lay the groundwork for the development of a transnational analytical framework with which to reach answers to the objectives, the dissertation recognises differences in the definition of climate litigation and identifies claims that underpin transnational climate litigation. These claims include the human rights turn, the role of courts in climate governance, remedies and mitigation and adaptation-based climate litigation. Grappling with the concept of transnational climate litigation, the dissertation applies four theories of transnationalism to climate litigation, and themes from these theories enabled the development of a transnational analytical framework with which to analyse cases. The three South African cases used are Earthlife Africa Johannesburg v The Minister of Environmental Affairs and Other (Earthlife), Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (Shell), South Durban Community Environmental Alliance and Another v Minister of Forestry, Fisheries and The Environment and Others (Eskom). Cases used from the Global North jurisdictions are The State of the Netherlands v Urgenda (Neth. Sup. CT) (Urgenda), Friends of the Earth Netherlands (Milieudefensie)et al v Royal Dutch Shell (Milieudefensie), and Neubauer et al v Germany (Neubauer). As the dissertation concludes, findingItem An Analysis of Statutorily Imposed Sectorial Affirmative Action Targets(University of the Witwatersrand, Johannesburg, 2024) Willem, Kegomoditswe Daphney; Van Staden, MarthinusThe 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.Item Bypassing the union: An Employer's Right to Negotiate Directly with Striking Employees(University of the Witwatersrand, Johannesburg, 2016-08) Nkosi, Thulani Gift; Mahomed, ShahedaSouth African labour law influenced by the Constitution and notions of equity and fairness has undergone a total change and will, without doubt, continue to change to meet the ever changing nature of employment it seeks to regulate. It is after all in the nature of all laws to change with the society they seek to regulate and our labour law is no exception. Recently, focus has shifted to the institution of collective bargaining and the questions posed are whether our labour laws as they currently stand are capable of adequately regulating the process of collective bargaining in such a way that the main objective of collective bargaining which is to bring about industrial peace is promoted and maintained at all times. These questions are posed on the back of the unprecedented spates of prolonged violent strikes that have resulted in the destruction of property and loss of life as well as unimaginable financial losses not only for the employers affected but also for the economy as a whole. These unprecedented prolonged violent strikes have caused employers to engage in bargaining conduct that could erode the participation of trade unions from the collective bargaining process which bargaining conduct takes the form of employers bypassing trade unions and negotiating with striking employees directly. But do employers have a right to bypass trade unions in this way? This paper investigates this question against the background of the case of Amcu v Lonmin where the Labour Court on application by a trade union had to decide whether to grant an urgent interdict restraining employers from negotiating directly with striking employees. The employers considering themselves to be acting within their rights opposed the application. The Labour Court unfortunately dismissed the application on technical grounds relating to the lack of urgency without considering or deciding this question. This paper accordingly picks up the debate; considers the historical evolution of collective bargaining in our labour law including the voluntarist argument that is said to be embodied by the Labour Relations Act (LRA), and concludes that when all things considered employers in fact do not have a right to bypass trade unions. If employers had this right certain provisions of the LRA that guarantee trade union participation would be rendered nugatory and the whole collective bargaining process would become unworkable. The LRA envisions that once parties have voluntarily embarked on collective bargaining they bargain in good faith and do not bypass each other.Item Financial inclusion in South Africa: An analysis of the financial sector regulatory framework and proposals for reform(2018-09) Duma, Amanda; Kawadza, HerbertAbstract Not Available.Item When Less Is More – Tiny Housing As “Adequate” Housing(University of the Witwatersrand, Johannesburg, 2023) Kruger, Petronell; Pieterse, MariusThe modern housing landscape is in flux with three key phenomena impacting the “adequacy”– the legal standard by which housing provision is measured – of housing policy, in South Africa, and worldwide. First, the “classic” housing crisis persists: high levels of homelessness, housing backlogs, and challenges related to government housing subsidies and service delivery continue. Second, there is international recognition of the impact of climate change on housing, the consequent need for climate-resilient housing, and reduced climate footprints of housing construction, maintenance and ownership. Third, physical housing size is increasing, despite the number of household members and available space for housing decreasing. This thesis considers these phenomena and contemplates the role of housing size within the evolving legal standard of “adequacy”, especially where size was often linked to the promotion of the right to health in light of communicable disease outbreaks. The thesis explores how tiny housing movements and different global norms on housing size can challenge conventional standards of housing adequacy. It considers that smaller dwellings are more affordable, less resource-intensive and, within the correct policy context, can lead to easier access to housing. The study lens of tiny housing is chosen due to its popularity throughout different income groups, based on growing concerns about consumerism, sustainability and communitarianism (albeit through a westernised lens). Accordingly, it allows for a discussion on the role of housing down-sizing without necessarily invoking a sense of “racing to the bottom”. To achieve the research aim, the following research questions are posed and answered in turn: What is “adequate” as a standard to measure housing? Does size matter for the standard of adequacy, and if so, how? Can tiny houses, as a representation of very small housing types, be deemed adequate? If tiny housing can meet the adequacy standard, how should the law facilitate the self-realisation of tiny housing, or, alternatively, as a viable form of public housing? The thesis comprises six chapters. The first chapter introduces the above-mentioned phenomena and study lens. The second chapter examines the legal and social barriers and facilitators for tiny housing in both private and public contexts through a comparative study of selected jurisdictions, chosen to represent different social, cultural and geographic contexts in which housing size requirements developed. The jurisdictions were also selected based on data accessibility and availability. The third chapter is a content analysis of theoretical aspects of adequacy in international and South African housing and human rights law. The fourth chapter is a critical analysis of building regulations and planning laws in South Africa, tracing their history and assessing their current form, with a focus on how they structure the self-realisation of access to tiny housing as adequate housing. The fifth chapter considers government public housing programs, policy approaches to housing size and its trade-offs with other adequacy factors in enabling access to tiny housing for people without the means to self-realise the right to adequate housing. Chapter six presents the answers to the research questions as explored through the various chapters and presents the overall findings of the studyItem Gender and Transitional Justice in the Central African Republic(University of the Witwatersrand, Johannesburg, 2023) George, Lucia; Swart, MiaThe Central African Republic has been the scene for many years, even decades, of many conflicts and almost permanent political, social, and economic instability. During the most recent conflicts, in 2002/2003, and in 2012/2013 until today, women have been the first victims of Gender-Based Violence (GBV), understood in its broadest sense as also including violations of socio-economic and cultural rights of which they were the first targets or from which they suffered the most disproportionate consequences. This thesis proposes to assess whether the transitional justice mechanisms created in the Central African Republic can combat GBV by challenging the unequal gender norms and structures pre-existing the conflicts and, therefore, bring about a significant change in the life of women in the country. To do this, this thesis proposes to look at the concept of transformative justice to analyse what this concept means in theory and practice. In doing so, three different modes of justice will be successively studied: interactional justice, distributive justice, and normative justice from the perspective of a feminist analysis of transitional justice.Item 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, CatherineThe 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.Item Good corporate governance in state-owned entities: challenges and compliance(University of the Witwatersrand, Johannesburg, 2024) Mokuena, Medi Moira; Kawadza, HerbetThis research explores the state of good corporate governance in state-owned entities. It does so by locating good corporate governance in the state-owned entities’ operating environment. This research raises the failure of the executive managers, the non-executive directors, and the executive authorities to appreciate this powerful tool as a key to the success of the state-owned entities. The state-owned entities are significant participants in South Africa's economy. The number of state-owned entities, the size of some, and their role in the country's economy make good corporate governance imperative. The nonchalant approach of the state-owned entities management to this phenomenon is concerning because its effect on the economy and the delivery of services to the people has far-reaching negative consequences. In most instances, unethical executive managers and non-executive directors consider it inconvenient and a nuisance. The competitiveness of the economy, success and sustainability of the state-owned entities is unachievable without good corporate governance. The accounting authorities must know and understand the purpose of state-owned entities and the relevance of good corporate governance. They must own it, embrace it and oversee its effectuation throughout the organisation without fail. Once adopted, good corporate governance binds the accounting authorities, the executive managers, and all the employees in the state-owned entities, including the executive officers. There are laws and other guidelines in place to modulate good corporate governance. The overarching law is the Constitution of the Republic of South Africa, 1996. These could be better. However, if properly implemented and not manipulated for nefarious reasons to the detriment of the state-owned entities, the government will realise its goals, and the public will benefit. Bad corporate governance opens the door for corruption, bribery, fraud, financial mismanagement, and money laundering. This problem is common in Southern Africa. For instance, Botswana and Namibia also have good corporate governance challenges in their state-owned entities. Their good corporate governance is premised on the King Codes and international instruments. Hence, good corporate governance must be applied in the management of state-owned entities. The quality of management and execution in state-owned entities determine their failure or success. With the help of the private sector enablers, theirprospect of success is limitedItem The role of local government in achieving spatial equity through the realisation of the right to housing in South Africa(University of the Witwatersrand, Johannesburg, 2023) Mudau, Fungai Paul; Pieterse, MariusThis Thesis deals with the role of local government in overcoming spatial inequalities in South African cities, with a particular focus on housing and access to well-located urban land. The primary focus is on whether the legal role of local government in housing matches its rights-related responsibilities and its role in achieving spatial equity. Municipalities have limited legal powers, policy scope, and budget for housing. With overstretched programmes and fiscus, certain municipalities are reluctant to assume housing delivery roles. However, numerous court cases bind municipalities by assigning them increased rights-based responsibilities which they may not be adequately equipped or empowered to implement. The problem which therefore unfolds relates to the inevitable need to address the obligations to realise the right of access to adequate housing of the urban poor within the limited legal, institutional, and structural role that local government plays in housing delivery, as well as with the limited resources at its disposal. The challenges associated with the realisation of local government’s housing-related powers, functions, and responsibilities become simultaneously more complicated and less insurmountable when viewed together with local government’s legal powers and functions pertaining to spatial planning. As a result, this Thesis investigates the articulation between housing and planning-related legal competencies and responsibilities of local government, in seeking to ensure that local government can fulfil its constitutional developmental role and contribute to the achievement of spatial equity. Selected case studies of the metropolitan municipalities of Cape Town, Johannesburg, and eThekwini are utilised to explore the emerging trends, issues, and challenges in practiceItem Courting an intervention: conceptualising the judicial role in matters relating to section 139 of the South African constitution(University of the Witwatersrand, Johannesburg, 2024) Franklyn, Claire Susan; Pieterse, MariusThis Thesis conceptualises the developing judicial role in matters relating to section 139 of the South African Constitution, being the constitutional intervention mechanism in terms of which a provincial executive (or, in certain circumstances, the national executive) intervenes, temporarily and in a circumscribed manner, in a dysfunctional municipality. The burgeoning judicial role has developed within the context of systemic local government collapse, persistent service delivery failures, and failing and dysfunctional constitutional accountability and intergovernmental monitoring and support mechanisms. Three broad categories of section 139 intervention matters are identified in this Thesis: first, the judicial review of a decision to initiate a section 139 intervention, second, the judicial review of a failure to take such a decision, and third, a catch-all category relating to matters which trigger, or at least, this Thesis argues, should trigger, a consideration of section 139 of the Constitution, where such intervention does not form part of the requested relief. Chapter 1 sets out the policy, constitutional and legal framework and practice of the section 139 intervention mechanism. Chapter 2 draws on case law and academic literature relating to the South African court’s adjudication of different subject matters (or ‘streams’), each of which have elements pertaining to the section 139 intervention mechanism, to develop a conceptual, analytical and evaluative framework for constructing a judicial role conception in matters relating to section 139 of the Constitution. Chapters 3, 4 and 5 apply this framework to systematically analyse the case law falling within the three identified categories of section 139 intervention matters, tracing doctrinal developments and building a conception of the judicial role with a focus on justiciability, judicial scrutiny and remedial prescriptiveness. The conclusion to the Thesis in Chapter 6 consolidates insights from the three categories, ultimately arguing that the South African environment is generally conducive to litigation relating to section 139 of the Constitution, with the court adopting a catalytic judicial role, shifting its levels of judicial scrutiny and remedial prescriptiveness in each category based on an intersection of its understanding of its own role under the doctrine of separation of powers, the role of governmental action and responsiveness, the integrity and healthy functioning of the applicable democratic institutions, structures and processes, and the seriousness of any underlying socio-economic rights violations.