Browsing by Author "Young, Cheri-Leigh"

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    Analysis of the Nigerian Supreme Court's constitutional duty regarding women's inheritance right under customary law
    (2017) Aladetola, Opeyemi; Young, Cheri-Leigh
    Customary law existed before the enactment of formal laws to govern the affairs of Nigerians. It started as behavioural norms that grew to be widely accepted by the community and became law. Inheritance rights are recognised under Nigerian customary law. Most customs provided for a way in which a person's properties could be distributed upon his death. However, most of these customs did not make provision for women in the distribution of a deceased estate. This disparity between the inheritance right of a man and woman was very prominent in the distribution of landed properties. Upon the demise of a man, his estate becomes family property and his eldest male child inherits it on behalf of other male members of the family. Where the deceased dies without a son, his brother inherits the estate. Notably, the Constitution did not abolish laws that existed prior to its enactment. It provides that these laws shall continue to exist subject to its provisions, the Constitution provides for its supremacy over every other law, and that the court has a duty to invalidate any law that is inconsistent with its provisions. The Court found the opportunity to alter the unfair discriminatory position against Nigerian women and develop customary law in line with Constitution in the case of Anekwe v Nwekwe. Here, the defendant (brother of the deceased) sought to evict the plaintiff (widow of the deceased and her female children) from the property of the deceased because she had no male child. He claimed that based on their customary law female children are excluded from inheriting property. The Supreme Court then invalidated this customary law of male primogeniture for being repugnant to natural justice, equity and good conscience. Although the decision of the court solved the problem of discrimination, it failed to develop customary law by invalidating only the discriminatory aspect of the customary law. Lessons can therefore be drawn from the minority decision of the South African Constitutional Court in the case of Bhe v Magistrate of Khaylistha, where recourse to developing the customary law was posited. This study will examine to what extent the court has applied customary law to bring it to conformity with the Constitution, drawing from other African countries especially South Africa. It utilises literature review and case law analysis, arguing that the court needs to review the Anekwe v Nwekwe case and make a more declarative position that brings customary law up to date with modern realities. It will recommend that the courts should in consultation with the people develop the customary law of inheritance.
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    The [flourishing] entrepreneur: a case for legislative intervention to support healthy SMME financial access in South Africa
    (2017) Bryce, Richard James; Young, Cheri-Leigh
    This thesis presents human flourishment as the theoretical foundation from which to pursue social policy in the post-colony. Accepting this theoretical foundation, the purpose of this thesis is to reflect on the role and potential of small, micro and medium enterprises (SMMEs) in South Africa. Further, this thesis will consider in what manner the law can support the realisation of the potential of South African SMMEs. The main value of this thesis is to illustrate the positive distributional impact that a human flourishment approach to legal intervention can have for a property system, which has the objective of supporting the realisation of the capabilities of persons in society. This value is illustrated in this thesis by analysing the relationship between the South African SMME and retail banking sectors. This thesis has chosen to focus on the SMME sector because of the role identified for SMMEs in South Africa's growth strategy, the National Development Plan (NDP). This role includes recognising SMMEs as being an entry point for previously excluded persons into the mainstream economy. A recent report by the Small Enterprise Development Agency (SEDA) highlights that the potential of SMMEs in South Africa remain unrealised. The report identifies key barriers to SMME flourishment in South Africa. This thesis focuses on the following identified barriers in the report: (i) the existing legal framework with respect to SMMEs; (ii) existing government agency support available to SMMEs; and (iii) the ability of SMMEs to access finance and credit. A primary finding in this thesis is existing credit structures in the retail banking sector are negatively biased towards the black population group. This has an adverse impact on black entrepreneurs. It is suggested in this thesis that this negative bias is a consequence of apartheid. Apartheid had the effect of regulating the access that black people had to the mainstream economy and their ability to acquire and accumulate property. Recognising that SMMEs have an identified role to play in South Africa's growth strategy, this thesis finds that legislative intervention in the retail banking sector is needed in order to overcome this negative bias and to support increased SMME access to finance and credit. This thesis interprets the preamble to the Constitution, as well as the concept of transformative constitutionalism, as mandating a capabilities-approach to human development. It is for this reason that a property system with a distributional outcome that supports the realisation of the capabilities of persons in society is preferred by this thesis. It is only once there is a real commitment of moving the majority of South Africans into the mainstream economy will inroads to tackling inequality and poverty be made.
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    Public trusteeship and water management: developing the South African concept of public trusteeship to improve management of water resources in the context of South African water law
    (2014) Young, Cheri-Leigh; Mostert, Hanri
    South Africa is faced with extraordinary challenges when it comes to managing its water resources. To redress the results of discrimination caused by Apartheid and its political antecedents, the modern constitutional state sought to address the issues of access to water resources and sanitation services by introducing section 24 of the Constitution, which provides for the right to an environment that is not harmful to one's health or well-being. In addition, section 27 seeks to entrench the right of access to sufficient water. Consequently, the National Water Act 36 of 1998 was introduced, which caters for the administration of water resources. The Water Services Act 108 of 1997, which seeks to ensure the provision of water and sanitation services completes the statutory framework. This framework provides for the state to be either the trustee or the custodian of our water resources. However, the terms 'trustee' and 'custodian' are not defined by either statutes. The legal framework nevertheless sets the parameters for state trusteeship and/or custodianship. This may be gleaned from the constitutional provisions, the National Water Act and the Water Services Act, as well as their accompanying regulations and policies. Despite oversights and inconsistencies, it is argued, the legislative framework very clearly provides the statutory content of trusteeship and custodianship. The state is expected to manage water in accordance with the prescribed constitutional mandate. The nature of the terminology used in the legislation has prompted a comparison by academic authors of modern trusteeship with the Roman and Roman-Dutch law classifications of res publicae. Alternatively, the public trust doctrine has been used as a comparator for evaluating the functioning of trusteeship. However, there are numerous problems with both of these comparisons. Neither facilitates a clear, meaningful understanding of trusteeship or custodianship. The thesis set out here is that, as trusteeship and custodianship are both statutory creatures, the nature of their content must be sought in the legal framework itself. In particular, the National Water Resource Strategy provides insight into the duties of the state. The Strategy aims to give effect to this legal framework, and provides that there are three values that water management aims to achieve: sustainability, equity and efficiency.
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    Strengthening decision-making processes to promote water sustainability in the South African mining context: the role of good environmental governance and the law
    (University of Cape Town, 2020) Kengni, Bernard; Mostert, Hanri; Young, Cheri-Leigh
    This thesis examines whether the concept of good (environmental) governance provides a useful tool and legal base for the achievement of water sustainability in South Africa's mining sector. The thesis introduces water pollution as one sustainability challenge that South Africa is facing in its mining sector. The main question is how the legal framework should promote and guide water sustainability through good environmental governance. The question results from the fact that mining is a constant threat to water resources. Mining is one of the leading causes of water pollution which adversely affects human life among others when water contaminated with heavy metals is consumed. Farming, as an essential component of food security, is under constant threat in places like Mpumalanga as soils are rendered less productive by mine-contaminated water infiltrating from topsoil or rising from underground mines. Similarly, polluted water adversely affects biodiversity, thus, destroying ecosystems and vegetation which serve as livestock feed. The analysis of sustainability, governance and good governance theories and specific concepts underpinning them shows that they can inform water protection in the South African mining sector. Sustainability, found to be a broad and interdisciplinary concept, is a necessary guideline for the pursuit of water governance in the mining sector. Despite conflicting perceptions or facts regarding sustainability, it is evident that for water to be preserved, sustainable practices are essential. This requires mining activities to be conducted while always minimising the occurrence of water pollution to ensure water sustainability in the South African mining sector. The thesis also expounds that water sustainability pursued through governance practices is likely to be effective in alleviating or preventing water concerns. Thus, the concept of governance is presented as a tool with which individuals or organisations can achieve effective water sustainability, through decision-making, planning and law enforcement. Governance as a concept is complex, multifaceted and interdisciplinary, but can ensure water sustainability and the wellbeing of members of society who depend on the natural environment. The thesis further highlights that water sustainability is more likely when pursued through governance in its best possible form. The concept of good environmental governance is therefore explained as a theory that can guide effective decisionmaking and serve as a tool at the disposal of interested and affected parties to judge the performance of administrative officials. Effective decision-making processes and its elements are to be promoted through cooperative governance, accountability, transparency and public participation, for effective administrative action. The thesis then analyses the South African legal framework and establishes that water governance in the mining sector is extensively catered for therein. The Constitution sets the water sustainability mandate based on which legislation is enacted, both followed by legal interpretation in the courts. The analysis, however, show that there are various shortcomings relating to the implementation and enforcement of the law through administrative action. Nevertheless, the analysis remains hopeful that water sustainability can still be achieved in the mining sector. Despite the existence of environmental provisions and various attempts to achieve water sustainability, the current South African legal framework still fails to control water pollution effectively. The failure may be attributed to the shortcomings of the said framework, but it is, to a larger extent, a result of poor implementation and enforcement. One main reason is less effective administrative action due to inefficient decision-making processes, which implies that the quality of governance regarding water protection in the mining sector is inadequate. Such findings show that water sustainability could have been achieved or improved if decisionmakers had relied fully on good governance principles to implement and enforce provisions aimed at water protection in the mining sector. Hence, this thesis finds that no new regulation is required; rather it suggests a reform of various provisions within the existing legal framework to improve water sustainability. This is subject to improved implementation and enforcement mechanisms.