School of Law (ETDs)
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Item Decision Making and Case Attrition in Rape Cases: A Feminist Jurisprudence Perspective(University of the Witwatersrand, Johannesburg, 2025-06-12) Lebitse, Palesa; Madlingozi, TshepoThis study is an empirical study of prosecutorial attrition in rape cases. The study uses mixed methods (quantitative and qualitative) to examine data derived from Umlazi Police Station in KwaZulu Natal. This thesis is approached from a feminist jurisprudence perspective to analyse legal texts that critically identify gender inequalities. Feminist critical theorists predict that external factors in the legal system that go beyond the actual legal burden influence the outcome of cases. This study tests the hypothesis, among others, that many of the decisions to decline prosecution in cases of rape are based on extra-judicial factors such as the complainant-perpetrator relationship; the complainant’s character; and/or their credibility that contributes to or causes case attrition. In cases of rape, extra-legal variables are believed to have a significant influence on the decisions and actions of the key players within the criminal justice system. The results of this study make it possible to examine any correlation between procedural obstacles and outcomes in South Africa. With these findings, we can gain insight into the impact of rape law reform on the prosecution of cases in South Africa, taking into account the subcultural theory and downstream theory of rape.Item Prosecutorial Attrition: Its Implications for South Africa’s Domestic and International Obligations to Uphold Women’s Human Rights(2021) Lebitse, Palesa; Meyersfeld, BonitaJohn Dugard states that a general rule of international law dictates that the conduct of a person with authority is an act of a state; however, the conduct of a private person is not considered to be an act of a state. An example is the state prosecutor. This research is concerned with the attrition of rape cases, with the purpose of determining whether rape prosecution failure is an international wrong of the state. To answer this, this study aims to broadly assess whether rape case attrition in South Africa is due to prosecutorial discretion being exercised in a deficient manner inconsistent with international human rights law, which leads to a violation of women's human rights and impunity for rape. This research will analyse evidence (i.e., the MRC report) that shows that prosecutors do not factually comply with international and constitutional standards. It is against the backdrop that this research argues that South Africa must ensure effective investigation and prosecution of rape cases to achieve compliance with international standards and the Constitution.Item Challenges impacting economic integration in the African continent(University of the Witwatersrand, Johannesburg, 2024) Tambo, Job Erick; Forere, MalebakengDespite its much-heralded economic potential, the African continent faces numerous obstacles that impede operational economic integration. This study explores the barriers hindering the continent’s advancement and stifling aspirations for greater integration. Urgent issues include inconsistency in tariff structures and trade barriers, political instability, corruption, and inadequate infrastructure, which hinder cooperation and regional integration. The presence of multiple overlapping Regional Economic Communities creates legal and regulatory obstacles that stand in the way of the development of unified trade policies and market integration. Additionally, these problems collectively challenge achieving smooth economic integration in Africa. This research examines the challenges using case studies, policy analyses, and comparative assessments. The study shows that trade barriers, especially tariffs and licencing restrictions, significantly impede international trade and investment. Political instability and corruption hamper foreign investment and regional cooperation. Issues with infrastructure and conflicting legal agreements in Regional Economic Communities make integration more difficult. The research highlights the significance of tackling these challenges for Africa's economic well-being and cohesion. The recommendations aim to assist policymakers, stakeholders, and businesses in navigating these complexities to promote integration and socio-economic development across the continent.Item A South African Perspective on Self-preferencing as a form of abusive conduct in the digital market(University of the Witwatersrand, Johannesburg, 2024) Madiya, Yolisa Nolwazi; Marumoagae, M. C.This research report highlights how dominant firms abuse their dominance in the digital market by engaging in self-preferencing initiatives to the detriment of competition in this market. It illustrates the negative impact of the skewed flow of information and deliberate denial of access to information by dominant firms to their competitors in the downstream market to leverage their services or products which ultimately affects competition in this market. Most significantly, this report reflects on how the European Union has addressed the growing self- preferencing concerns to determine lessons (if any) that South Africa can learn therefrom. Data has become an important input into the decision-making of many digital firms which has increased the reliance on privacy regulations. This report also discusses the negative impact of privacy regulation in competition law and demonstrates how it enhances the adoption of self- preferencing practices in the digital economy. The value of data and the characteristics of online platforms propels the tension between access to data and consumer's long-term interest. It is shown in this report that the limitation of data portability using privacy regulation qualifies as a form of self-preferencing and strengthens the control of a dominant firm in a digital economy. South African Competition Act 89 of 1998 is discussed in this report to evaluate its adequacy in addressing self-preferencing concerns.Item Does South Africa Offer Sufficient Safeguards To Address Algorithmic Discrimination In Recruitment? A Comparative Analysis(University of the Witwatersrand, Johannesburg, 2024) Qaba, Kanyisa PalesaThe era of the Fourth Industrial Revolution has seen a surge in the proliferation of Artificial Intelligence in virtually all industries, impacting employment, agriculture, and health care. This contribution traces the evolution of AI from its inception by Alan Turing to the current age of deep learning and digitalisation. I examine AI's increasing role in the recruitment process, highlighting both its potential to enhance efficiency and its danger of exacerbating discrimination, both directly and through proxies. I highlight that despite the possibility of algorithmic bias, scholars argue that identifying and rectifying it is more legally manageable than conventional human bias. The essay, therefore, advocates for the fair regulation of AI hiring tools that mitigate discrimination for all persons while still allowing space for the growth of the field of AI. First, focusing on South Africa's legislative framework, the essay investigates whether current laws offer adequate protection for victims of recruitment algorithmic discrimination. In the scope of the discussion, I offer a critique of existing legal protections, concluding that currently promulgated frameworks are insufficient. To account for these legal inadequacies, the paper turns to consider solutions at the international level, namely the AI Act of the European Union. Considering the AI Act's provisions circumventing AI bias, which echo a risk-based approach, I make suggestions to be considered by the legislature when it inevitably is tasked with regulating AI and its potentially harmful technologies. Ultimately, the paper underscores the importance of addressing AI discrimination in the recruitment process through robust legislative regulation.Item The Role of Psychology in Legal Education: Incorporating Cognitive Science into Legal Pedagogy(University of the Witwatersrand, Johannesburg, 2024) Starosta, Paulina Dagna; du Plessis, RiettePrevailing criticisms of legal education suggest that students enter clinical programmes ill equipped to solve problems and that they leave law school without learning the lawyering competencies of effective legal practitioners. This thesis is broadly premised on the idea that exposing law students to cognitive science and basic psychology would better equip them to achieve life-long learning and to acquire enduring practical lawyering skills. Psychology – the science of how people think and behave – has a great deal to teach us about the core competencies of lawyering. People who understand how others think, feel and behave, make better lawyers, decision makers and problem-solvers. Psychologists have conducted extensive research into psychological phenomena which are integral to effective lawyering. This research can be effectively incorporated into legal pedagogy, including how we teach law students to practice law. The proposal underpinning this research is the need for an undergraduate course on how psychology operates within the law, specifically designed to make students aware of how cognitive science and psychological phenomena affect and impact on the learning and practice of law. Developmental discourse regarding legal curricula entrenches the notion that law schools teach students how to think like lawyers but not how to be lawyers. The proposed response to this criticism is that metacognition – the awareness and understanding of one’s own thought processes – and the concomitant development of higher order thinking skills is key to the development of effective legal training, but this is presently absent in South African legal curricula. This thesis posits that experiential learning should begin before a student ever steps foot into a Law Clinic or a courtroom and that the reason why students leave law school unable to truly think like lawyers is because the notion is only truly introduced to them in their final year of law school, usually in the form of a clinical or experiential learning programme. The work contained herein is premised on the idea that legal educators ought to draw on the gains made by cognitive psychologists in understanding what happens when people learn and what neuroscience has to say about how people think and to introduce this to students at a relatively early point in their legal studies. The hypothesis underpinning this research is thus, that harnessing the science of psychology and allowing it to permeate legal pedagogy would be beneficial because the processes involved in both learning and lawyering are intricately linked to innate psychological processes and responses. Thus, the proposal is for an introductory course in basic legal psychology oriented at producing graduates who can think critically and solve problems pragmatically – graduates who are able to not only think like lawyers but also vi to act like lawyers. The research is significant as it explores the viability of such a course within the LLB curriculum at the University of the Witwatersrand and considers what such a course would look like in the South African context. An undergraduate course on psychology within the law would give students a sense of understanding themselves before they try to make sense of the actions and motivations of others (like clients, judges and opponents) when they enter their clinical programme. It is my contention that currently, legal education fails to adequately bridge the gap between law and practice because students are never taught to factor in the feelings, fears, concerns and motivations of themselves or others. A course, which exposes students to their own psychological motivations, as well as those of other players in the litigation arena, would give students the context of how to approach the acquisition of skills and the competencies required to practice law in a more pragmatic manner. Chapter 1 introduces the basic premise behind the research and orients the research focus. Chapter 2 explores both the theoretical and practical criticisms of traditional legal education locally and internationally. This chapter explores the need for the development of the South African LLB degree in the context of recommendations made by the Council for Higher Education (CHE). The chapter proposes the use of cognitive learning theory to maximise law school learning by drawing on research related to metacognition and the influence of learning styles. Chapter 3 introduces the importance of psychology within the law and orients the role of psychology in legal practice in the context of skills acquisition in undergraduate study. The chapter proceeds to isolate five indispensable legal skills required of law graduates to practice law and gives insight on how psychology impacts on the acquisition and use of those skills. This chapter advocates for the need for a stand-alone course on the study of basic psychology (including metacognitive learning) to improve lawyering skills. Chapter 4 focuses on the first part of course design, namely, the values, goals and outcomes of the proposed course on psychology within the law. This chapter engages with the values which underpin the course design process, the need to focus on law as being grounded in the humanities as opposed to being viewed as a science and the ultimate exorcism of the theory- practice divide. A proposal is made for the use of the unified learning model (ULM) in the development of the proposed course and lessons from experiential learning are used to set goals and outcomes for the syllabus. Lastly, the chapter focuses on the proposed placement of the intended course within the broader LLB curriculum. Chapter 5 focuses on the course methodology, course content and assessment of the proposed course. The chapter describes numerous teaching methodologies and their implications on the choice of course design model. Lessons on proposed course content from similar courses offered in the United States of vii America (USA) and Australia are used to construct a proposed syllabus, course outline and assessment plan for the course. Essentially, this chapter constructs a hypothetical pilot course for adaptation within the undergraduate LLB curriculum based on the goals, outcomes and placement referred to in chapter 4. Chapter 6 contains concluding remarks, reflective findings and proposals for the extension of this research.Item Using a Multilevel Governance Framework for the Reform of the International Investment Law Architecture(University of the Witwatersrand, Johannesburg, 2024) Mpofu, Kathleen; Forere, Malebakeng AgnesInternational investment law has come under significant scrutiny over the last few years under what has been termed as a legitimacy crisis, with various stakeholders expressing concerns regarding its operation. These concerns cover both the substantive and procedural aspects of international investment law. In response to these concerns, states have, at varying levels of governance, taken steps to reform the international investment law system with some states focusing on procedural reforms and others focusing on substantive reforms. This thesis considers the effectiveness of the reform process taking place in the international investment law system and finds that the piecemeal and fragmented approach that has been adopted by states may not be able to address the wide range of concerns raised by stakeholders. The achievement of effective reform requires a holistic approach that not only focuses on systemic change in redesigning investment treaties but also on national reforms. This approach has largely been absent in the reform process. The question that arises is how to develop a system of international investment law, that can effectively regulate the relationships and tensions that arise in the use of FDI, that incorporates the needs of all stakeholders and allows the different levels of governance to effectively participate in the system. This thesis explores alternative methods of reform that go beyond the small mandate of the Working Group III reforms currently being discussed and that can adequately address broader concerns that arise within the international investment law system that affect the needs of other stakeholders beyond the needs of investors. In order to do this, the thesis made use of the multilevel governance framework to effectively organise and incorporate the different stakeholders and different levels of governance into the international investment law system. The principles that apply in the multilevel governance framework are useful in shifting the reform discussions from the narrow focus currently present in the reform effort, to exploring a wider range of issues and concerns faced by a wider range of stakeholders and proposing inclusive solutions that share and balance power between the different levels of governance. To rebalance the rights and protections granted in IIAs and incorporate the different levels of governance into the international investment law framework, the thesis clarifies the right to regulate by embedding it as a principle of customary international law, applicable regardless of its incorporation in the treaty. To allow for broader public interest considerations such as sustainable development to be incorporated into IIAs, the thesis proposes the use of framework v clauses (which operate much like framework agreements) in the text of the IIA which will establish the broader commitments of the parties and leave the setting of specific targets to national legislation. In so doing, regulatory power can be shared between the different levels of governance using the multilevel governance principles, allowing states to enact meaningful regulatory measures within the scope of the right to regulate. To incorporate the national level of governance in the dispute settlement process, the thesis recommends the incorporation of the exhaustion of local remedies rule and sets out how the competence to settle disputes can be shared between the national and international level in a manner that limits contestation and enhances co-operation. This is coupled with the creation of a multilateral investment court at the international level of governance that does away with the use of arbitration as a mode of dispute settlement, has a more court like structure, with increased rights of access and participation for third parties who can actively participate in the dispute settlement process and have their rights vindicated by the court. In this way, the recommendations in the thesis allow for the regulation of the different relationships that arise in the use of foreign direct investment and creates an international investment law system where the achievement of investment objectives and economic growth need not come at the expense of other equally important public international law considerations.Item Balancing majority shareholder rights, minority shareholder rights and creditors rights in statutory mergers: in terms of the Companies Act 71 of 2008(University of the Witwatersrand, Johannesburg, 2024) Ado, Jean Philippe Mathurin SikCompanies in their various forms are crucial to South Africa’s economy and its prosperity as they contribute towards wealth creation, social renewal and social welfare. In our growing world and borderless international markets, there are ongoing changes that affects a company’s competitiveness and productivity both nationally and internationally. These changes may be brought by the necessity to abide by international company law standards and practices that to some extent are aiming at sustainable economic growth and profitability. The South African company law regime, introduced since 1926, has undergone a series of amendments to ensure that its national companies and stakeholders benefit from the most updated legal system to galvanise its economy. In so doing, mergers and acquisitions represent one of the most cutting- edge concepts of company law around the world that encompasses the social, economic and financial needs of companies and that have been introduced in the current national company law regime. This research paper analyses the protections of shareholders and creditors in the statutory merger contained in the Companies Act 71 of 2008. It discusses also whether these protections are adequately balanced towards a fair consideration of majority shareholders, minority shareholders and creditors’ interests — which includes consideration of their rights too — in implementing a statutory merger. The main findings are that some protections are not properly balanced in consideration of the aforementioned parties’ interests. These include the appraisal remedy, the merger agreement and the oppression remedy — between minority and majority shareholders — and the creditors’ notification coupled with the court review, the open transferability of creditors’ contracts and the solvency and liquidity test — between majority shareholders and creditors — which in some aspects offers uncertainty in protecting their applicants. The approach adopted in the Canadian cases of Black & Decker and Loeb, set out in section 2 below, emphasises the importance of policy considerations which must meet the stated goals of s7 of the Companies Act 71 of 2008.Item Balancing the odds: A law to legalise and regulate online gambling on casino games in South Africa(University of the Witwatersrand, Johannesburg, 2024) Bate, David John; Cachalia, FirozOnline gambling has become a pervasive phenomenon across the world. Yet South Africans enjoy limited scope to participate legally in this activity. Current legislation permits online betting on sports events (including horse racing) but prohibits all other forms of online gambling. Despite this prohibition, online gambling on casino games is widespread in South Africa. The Government has a choice: continue to criminalise the activity or follow international trends and allow the same. It initially attempted to legalise and regulate online gambling through legislation without success. It subsequently opposed (and continues to publicly oppose) any legalisation of the activity. Significant adverse consequences arise from continued prohibition of online gambling on casino games in South Africa including, inter alia: the spread of illegal gambling sites; loss of confidence in law enforcement; loss of tax revenues; discrimination against casino operators; loss of job opportunities; and inability to monitor and regulate online gambling activities. This study proposes key features for a law and licensing and regulatory framework to legalise and regulate online gambling on casino games in South Africa. It reviews regulation of online gambling on casino games in a representative sample of international jurisdictions to identify issues and best practices that may be germane to South Africa’s circumstances. It examines and analyses current and proposed legislation and stare decisis in South Africa to identify challenges and opportunities for further consideration as part of any process to legalise and regulate online gambling on casino games. It summarises and analyses public interest concerns that likely require redress as part of any such process. Based on these efforts, this study highlights fourteen areas of law and makes recommendations regarding specific interventions in those areas that may merit further consideration in development of any ‘made in South Africa’ solution to legalise and regulate online gambling on casino games in the country.Item 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, NabeelThis 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.