Browsing by Subject "public law"
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- ItemOpen AccessA critical reflection on the judgement of the federal constitutional court of Germany on the European central bank's public sector purchase programme: ultra vires review and the primacy of European Law(2022) Rademann, Philipp; Ally, NurinaThe financial politics of the European Union (EU) have been highly debated ever since the 2008 crisis, which left some European countries in financial turmoil. One part of the European financial policy has been the purchase of government bonds through the European Central Bank. The most vocal critics of this policy have for a long time emerged from Europe's biggest economy – Germany. A case against the purchase of government bonds was eventually brought to the Federal Constitutional Court of Germany (FCC). The FCC referred the matter to the European Court of Justice, which in 2018 upheld the practice and found it legal. In May of 2020 the FCC went against the European Court of Justice and pronounced the practice of purchasing government bonds as well as the decision upholding it to be ultra vires. Although there have been other domestic courts within the EU that have overruled EU law, last years's verdict was unique in its blatant defiance of the European institutions and the primacy of EU Law. This paper analyses the two judgements with a focus on the issues of the ultra vires review as well as the primacy of EU law. By scrutinising the FCC's case law on the issue, the author argues that the FCC's judgement is inconsistent with its own jurisprudence, and the case substantially unsuited and unwisely chosen for rendering the ultra vires verdict for the first time. Moreover, the judgement completely disregards the primacy of EU law, which not only questions the equality of EU Members but ultimately jeopardises one of the most crucial principles of the Union.
- ItemOpen AccessDefending women who kill(2022) Shaff, Maxine Leslie Georgia; Phelps, Kelly; Moult, KelleyThis dissertation undertakes a case review of South African court case judgments (between 1994 and 2021) in which women are charged with killing their abusive intimate partners. The dissertation examines how evidence of their abuse is used in respect of legal defences and mitigation of sentence. In addition to analysing the existing legal framework, the paper presents thematic qualitative information drawn from the judgments to show that a number of themes are apparent in the manner in which evidence is brought and dealt with by the courts. For instance, patterns of disregarding evidence of abuse, and a lack of calling for further evidence where needed. In addition to this, judgments often 'play armchair expert' and show lack of sensitivity and compassion to abused women - this is tightly linked with the concept of victim blaming. Other themes include deterrence as emphasised in sentencing, the notion of a turning point during an abusive spell, the rights of the children involved in abusive relationships, and considering motives for retaliation. The paper concludes by arguing that a contemporary approach to private defence, in light of the developments made in the Engelbrecht case, ought to be the way forward in exonerating women of their criminal culpability where those requirements are met.
- ItemOpen AccessDeveloping a legal and institutional framework for witness protection in Nigeria: reflections from international perspectives(2020) Oyakhire, Suzzie Onyeka; Van, Der Spuy Elrena; Woolaver, Hannah'Witness protection' has been introduced in the criminal justice systems of several states worldwide as a recognised tool for facilitating the cooperation of witnesses and ensuring that concerns about their safety are not ignored. Although not a new phenomenon, witness protection praxis continues to evolve and remains largely undeveloped in many states. In Nigeria, the relevance of witness protection as a critical aspect of criminal justice administration is increasingly becoming evident. As an area of enquiry, scholarly literature on witness protection is descriptive, locally focused, and lacking in conceptual clarification. Recent developments in Nigeria highlight the need for the clarification of legal and conceptual issues within the existing legal framework for protecting witnesses. Using the Nigerian case study, this thesis illustrates the obscurities inherent in the concept of witness protection. These are highlighted around five critical areas: the definition of witness protection; the scope of beneficiaries requiring protection; the nature of crimes necessitating protection; the nature of protective measures; and the administrative control of witness protection. The thesis explores the concept of witness protection, which is still at an early developmental stage in Nigeria. In the absence of a clear legal jurisprudence, the thesis pieces together the practice of witness protection in Nigeria and embarks on a conceptual and legal clarification of issues important to developing a witness protection framework. To achieve this, the thesis draws from international debates, legal developments and institutional practices from other jurisdictions as a basis for improving Nigerian efforts in witness protection and for making normative proposals to that effect. The thesis utilises two distinct perspectives: the criminal justice and the human rights perspectives as heuristic tools for analysing the concept of witness protection and to separate the disparate influences that shape how it is construed. A combination of desktop research by way of doctrinal research and empirical research was adopted. In pursuit of a more detailed understanding of contemporary developments relating to witness protection in Nigeria, field research was undertaken. This comprised qualitative research using semi-structured interviews of a specifically selected sample of criminal justice experts and practitioners with knowledge about witness protection in Nigeria. The semi-structured interviews justify the assumptions that there is a need to examine and clarify the scope of witness protection and what it depicts. The thesis finds that the concept and practice of witness protection evolved within specific parameters and its definitions are determined within these limits. It advances the existing witness protection conversations by offering an analytical basis for discussing witness protection and proposes organising principles for delineating the scope of witness protection. The clarifications made in the analysis within this thesis are utilised in making normative proposals and policy recommendations for developing a legal framework for witness protection in Nigeria. The thesis recommends a formal witness protection framework, through the enactment of comprehensive witness protection legislation that clearly defines the objectives of witness protection, the scope of beneficiaries, the scope of crimes necessitating protection, the type of protective measures and guidelines for assigning these measures, clear eligibility criteria and which establishes an independent witness protection agency to administer witness protection in Nigeria.
- ItemOpen AccessDoes a dominant party democracy erode constitutional legitimacy? An analysis of the African national congress and the South African constitution(2020) Petersen, Shawwaal; Calland, RichardIt has been twenty-five years that the ANC has enjoyed political hegemony and an investigation is required into whether the legitimacy of constitutional supremacy remains intact as a state functioning under a dominant political party. There are certain pathologies which develop in a dominant political party state, pathologies which lead to autocratic rule and which has the potential to undermine the constitutional institutions such as that created by the South African Constitution. The first aspect considered is the weakened oversight role of Parliament over the executive because of the democratic centralism policies practiced by the ANC. Democratic centralism entails strict party discipline which means Parliament cannot fully exercise its role in holding the executive accountable as envisaged in the Constitution. Provisions of the Electoral Act and the Anti-defection clause in the Constitution further allows a concentration of power in the top hierarchy of the dominant political party, thus ensuring that political leaders have all the might to ensure that self-preservation is the order of the day. Parliament which is meant to represent the electorate can be considered as a mere formal or hypothetical construction as the decisions of the dominant political party affects parliamentary processes. The second constitutional implication is that courts become overburdened to make decisions on matters which are better suited to another branch of government. Whilst constitutional review is a function of a thriving and working democracy, the argument presented here is that the judiciary has come to make decisions of a highly political nature. The reason for this is first the failure of Parliament to correctly exercise its oversight role and secondly the abuse of power by high ranking politicians in the dominant political party. The unintended consequence of a dominant political party state is the expansion of the role of the courts as the courts perform the ultimate watchdog role due to the loss of accountability in a dominant party regime. Thus, trespassing onto the terrain of other branches of government and in doing so undermining the independence of the judiciary itself. The last aspect which impedes constitutional legitimacy is the large-scale ‘capture' of state institutions. This phenomenon is linked to the ANC practice of cadre deployment which is a means to safeguard policies and to ensure that promises to the electorate are carried out by party loyalists. This practice in a dominant-party political landscape has created a loophole whereby democratic values and constitutional safeguards are often compromised. Pliable cadres are deployed to key positions and reporting lines are blurred which in turn has facilitated certain corrupt tendencies, leading to the demise of accountability, transparency and the efficiency of government and state-owned enterprises. Through analyzing case law and party policies and considering the pathologies associated with dominant party rule which has developed under the ANC's governance, it is aimed to determine whether a dominant political party erodes constitutional legitimacy in South Africa.
- ItemOpen AccessGovernment accountability is in our hands: utilising tech-enabled methodologies to give citizens the power to monitor the implementation of the regulation relating to sexual offences courts(2021) Venter, Tatum; Moult, KelleyGiven the high incidence of sexual offences in South Africa, effective implementation of legislation aimed at assisting and alleviating the plight of survivors is paramount.1 In February 2020, the Regulation Relating to Sexual Offences Courts (the Regulation) was promulgated. The Regulation provides for the creation of Sexual Offences Courts (SOC) as well as the specialist facilities and services which must be present, there are currently 106 designated courts in South Africa. If properly implemented, the Regulation has far-reaching potential to assist survivors, increase convictions and alter society's perceptions of these offences.2 Monitoring the implementation of the Regulation in Sexual Offences Courts to hold the government accountable and ensure these objects are achieved is of the utmost importance. This pilot study, which was part of an existing project being conducted by a coalition known as Shukumisa, aimed to determine whether an online tool can successfully allow citizens to monitor and collect reliable information on Sexual Offences Courts. In essence, the study built on previous (low-tech, pen-and-paper) attempts to monitor compliance by creating a tech-enabled data collection tool which enabled citizens who are already working within SOCs to monitor the implementation. Overall, the tool was able to successfully monitor the implementation of the Regulation in SOCs and build on previous monitoring projects. With online training, the participants were able to use the tool and effectively monitor the eleven courts in metropolitan as well as outlying areas. The tool had the ability to not only allow monitoring but empower the participants with information and education in an easy and accessible way. With a few minor improvements, it is recommended that the monitoring tool should be rolled out and used to monitor the compliance of every SOC, to hold government accountable to maintain their successes and improve on their downfalls
- ItemOpen AccessImagining ‘possible selves’ as an intervention strategy for incarcerated youth(2019) Fernan, Tess; Van Der Spuy, ElrenaThis minor dissertation involves exploratory research by way of in-depth qualitative interviews with two past juvenile offenders exploring the idea of 'possible selves’ as an intervention strategy for incarcerated youth. The participants share experiences of their own incarceration as juveniles as well as insights gained through their recent working experience with incarcerated youth. This study concerns itself with risk and resilience factors relating to offending behaviour. It is acknowledged that there has been a recent shift in criminological debates with a greater focus on primary prevention efforts in building resilience to anti-social behaviour in a child’s formative years. However, the current study is focused on secondary prevention efforts with a specific focus on incarcerated youth. The well-developed body of work on risk factors is consulted which determines criminal victimisation, family violence, school violence, structural violence in the form of poverty and institutional violence in the form of incarceration as key factors which may contribute to offending behaviour. Acknowledging that the attention to date has largely focused on what past factors may influence or contribute to a criminal trajectory, this study shifts the focus to the idea of 'possible selves’ and the potential that future expectations, fears and hopes can have on preventing further offending behaviour. 'Possible selves’ is a social-psychological construct initially devised by Markus and Nurius in 1986. It is largely an under-developed area of research with only a few key studies undertaken and limited application to delinquent and incarcerated youth. Findings have however indicated that 'possible selves’ do have the ability to influence present and future behaviour, particularly when balance (i.e. goals and fears are developed in the same life domain) and feasible strategies to achieve desired selves and avoid feared selves are developed. Youth offending in the South African context is reviewed to explore the current climate and determine the extent of current interventions focusing on the re-integration of incarcerated youth offenders both during and post-release. The empirical component of this study produced findings across five key themes being risk factors present prior to incarceration, the nature of possible selves of incarcerated youth, the impact of incarceration, possible selves are limited by context and the self and implications for practice of a 'possible selves’ intervention.
- ItemOpen AccessParticipatory constitutional reforms vs. realization of equal representation of men and women in the parliaments: a study of Kenya, Rwanda and Tanzania(2019) Lihiru, Victoria Melkisedeck; Amien, WaheedaIn this thesis, the constitution-making legal frameworks in Rwanda, Kenya, and Tanzania are examined in relation to how they facilitated public participation in line with Article 25 of the International Covenant on Civil and Political Rights, 1966 and Article13 of the African Charter on Human and People’s Rights, 1986. In line with Articles 4 and 7 of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979, and Article 9 of the the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, 2003, the thesis gauges the level and impact of women’s participation in the constitution-making processes in furthering equal representation of men and women in parliaments. Findings contained in this thesis are informed by primary data from international, regional and national legal frameworks relating to participation in political decision-making processes and are supplemented by secondary data from credible reports, journal articles and books. Analysis of the colonial and early postcolonial constitutional formations depicts imposition of the constitutions by the colonial governments in consultation with a few African political elites. Generally, the colonial and early post-colonial constitutionmaking processes were founded on weak legal frameworks, denying the public, including women, the right to take part in constitution-making processes. The onset of international and regional conventions slowly influenced the opening of the constitution-making processes to the public. The 2003 Rwandan Constitution, 2010 Kenyan Constitution, 1977 Tanzanian Constitution and the subsequent stalled 2014 Tanzanian Proposed Constitution were founded on moderate strong legal frameworks allowing some level public participation. In terms of facilitating women’s participation, these frameworks suffered shortcomings in several aspects particularly in composition of constitution-making organs, access of uneducated and rural women and ensuring substantive participation by women. However, the 2003 Rwandan Constitution, the 2010 Kenyan Constitution, the 1977 Tanzania Constitution and the 2014 Proposed Draft Constitution of Tanzania contain equality and non-discrimination provisions. When it comes to women’s participation in parliaments, the definition of equality is equated to a percentage (mostly 30 per cent), which does not represent the meaning of equality. An increased number of women parliamentarians in the Rwandan, Kenyan, and Tanzanian Parliaments, has enabled the legislation of gender sensitive laws and policies in the areas of inheritance, gender-based violence, family law and land rights. However, there are many areas in which women parliamentarians fail to represent the real interests of women. Challenges related to the practice of first-past-the-post and proportional representation electoral systems and the practice of temporary special measures continue to hinder the realisation of equal representation of men and women in parliaments. Rwanda, Kenya, and Tanzania should adopt the equality-based proportional representation electoral system. Short-term recommendations are provided based on the contextual differences and uniqueness of each country under study namely Rwanda, Kenya and Tanzania.
- ItemOpen AccessSexual offenses on campus: Challenges in the disciplinary system(2021) Isaac, Chyanne; Smythe, DeirdreGender Based Violence (GBV) is not just an institutional problem but a global one. Higher education institutions have come under fire for inadequate policies and processes to address sexual violations on campus. Despite progressive policy revisions and advocacy at South African universities over the years, there is no indication of either a reduction in the number of cases or an increase in confidence in institutional responses to sexual offences. This dissertation reviews the sexual offences policies and procedures at six South African universities and highlights the challenges in the university student disciplinary process. Drawing the distinction between a criminal trial process and administrative hearing process, I make recommendations for procedural changes to the university disciplinary process that protects the complainant in a sexual offences case from unnecessary trauma during hearings.
- ItemOpen AccessSteroids in the gym: the law, strong bodies and masculinity in South Africa(2021) Mashasha, Tamsanqa Munyaradzi; Morrell, RobertWe know little about the use of steroids in the fitness industry in South Africa although the media frequently features stories about sportsmen who are charged with illegally taking steroids and subsequently issued with bans against continuing to participate in competitive, professional sport. In this study I examine the status of steroids in terms of pharmacology and the law. Steroids is a shorthand for Anabolic-Androgenic Steroids (hereafter AAS). As I show, these substances are evolving compounds with important medical utility but also with the capacity to rapidly build muscle and strength. It is for this reason that they are used in competitive sport but also in the fitness industry where strength and bodily appearance tempt people, mostly men, to take AAS. AAS are defined as a drug and thus cannot legally be bought without a prescription or overthe-counter. But for a number of reasons the control of AAS by regulatory authorities is weak. There are many laws that refer to AAS but these laws overlap and produce inefficiency and consumer confusion. In this grey area, AAS operate as an element of the country's gym culture. The gym as a space for fitness activities has become exceptionally popular in the last few decades. Gyms are primarily a middle class institution, attracting men and women of all races. The desire to get fit and strong and look good is strongly supported by media campaigns. For many men, particularly those that attended sports-focused, single-sex schools, the connection between a fit, strong and good-looking body is an extension of sports participation. For some young men, the habit of taking supplements as part of a fitness regime starts during the school-going years. The line between supplements and AAS is not always clear. This study included a survey of male gym-goers in East London and Cape Town. The survey asked questions about a knowledge and use of AAS and linked these questions to issues of masculinity. The survey was augmented with one-on-one interviews with gym-goers. This primary research is used in a chapter to investigate AAS use amongst gym goers. This thesis compiles and analyses pharmacological and legal material that defines and regulates AAS. To our knowledge this is the first academic work to attempt to understand AAS, their regulation and therefore their accessibility to the public. It shows that because the development of AAS is ongoing in the drug industry, definition is not easy and this, together with the absence of a coordinated set of laws which bear on the production, sale and use of AAS, results in grey areas of uncertainty. The final part of the study is based on a survey of 150 gym users and interviews with a select group of gym users known to the author. Using insider knowledge (the author is himself a gym-user) 30 interviews were conducted. The interviews explore the path along which young men travel as they develop their bodies. This path involves ideas of fitness and strength and these are bound up with the construction of masculine identity. The interviews help to explain why young men seek strong bodies and fitness and why some of these men take or have taken AAS. The thesis argues that the allure of AAS is that it allows young men quickly to build muscle and strength and thus to realize bodily aspirations that are built by the popular media and supported by peer groups. Sport participation is often, but not always, a feature of the bodyfocussed approach to performing a masculine identity. The lack of clarity regarding AAS is a contributing factor to gym-goers using steroids. Steroids can easily be purchased, are widely used and prosecutions for leisure use are unheard of giving the impression that they are not illegal.
- ItemOpen AccessThe case for assisted dying/euthanasia in specific cases in South Africa with reference to the development of the South African and Canadian Jurisprudence under a human rights political order(2022) Brink, Raphael Grant; Cheadle, Halton; Schwikkard, Pamela JaneIn this thesis, I argue that the present jurisprudence, particularly constitutional law and the common law of South Africa all lend support to the case for decriminalising physician assisted suicide through invoking a right to die with dignity (RDD). This argument is foundationally premised on the clear jurisprudence of the Constitutional Court which sets out the right to dignity and the value of dignity as the touchstone of the South African Constitution. The historical origin and development of the idea of dignity are traversed as well as how this idea found its way to the heart of our constitutional jurisprudence. The study then expounds on the similarities between the South African Constitution and the Canadian Charter of Rights and Freedoms and by comparing each of their Limitations Clauses proceeds to demonstrate how our Constitutional Court may follow analogous principles and reasoning to decriminalise physician assisted suicide by taking a similar approach to that taken in the Supreme Court of Canada. The argument is developed to posit that the South African Constitution with its emphasis on dignity allows for an even more compelling rationale for the decriminalisation of assisted suicide than was available to the Supreme Court of Canada. This thesis also analyses in some detail the present position of assisted suicide at common law and argues that when properly understood, though the legal position is confusing and contradictory, the common law is not in conflict with the potential decriminalisation of physician assisted suicide. Having clarified the present legal position and avenues for the development of the law, the main ethical arguments which inform and underlie the good morals which in turn underlies public policy, the so-called boni mores are considered. The point is made that the boni mores underlies our common law, and when this changes over time, our common law should follow suit. Having concluded that a key element of a decriminalised regime must include sufficient safeguards to protect the weak and vulnerable in our society, an analysis of the law in jurisdictions that have decriminalised physician assisted suicide and/or physician assisted euthanasia is undertaken which in turn culminates in a draft of proposed legislation for South Africa. The thesis points to studies which suggest that the experience in jurisdictions that have enacted a permissive physician assisted suicide regime has been largely positive. People in those jurisdictions who have explicitly chosen to exercise the right to die with dignity have avoided finding themselves in the inhumane condition of being compelled against their will to suffer interminably and unnecessarily. Whilst permissive legislation where available has succeeded in the aforesaid, such legislation does not appear to have resulted in a drop in the overall protection of human rights and the exposure of the vulnerable to harm, as was argued would be the case by those who have historically opposed physician assisted dying legislation. These facts which have become available from early-adopting jurisdictions for several decades now, and from ever more jurisdictions as physician assisted dying legislation is being ever widely passed, now show that the greatest fears of opposers have not come to pass. The study concludes that taking all of the above findings into consideration there appears to be a favourable legal framework and a preponderance of evidence to support a right to die with dignity in South Africa.
- ItemOpen AccessThe constitutionality of the Disaster Management Act and the Covid-19 regulations enacted thereunder: does this regulatory regime contravene the right to just administrative action?(2022) Nchodu, Dimakatso; Kohn, Lauren Mhis paper covers the constitutionality of the Disaster Management Act known as the Covid19 regulations. It will argue that to keep in line with an open and transparent government in a participatory democracy, we needed a more open and public regulation making process which was less truncated. It argues that had all communities been consulted in the making and enforcing of lockdown regulations there would have been more adherence and less lives lost. Furthermore, because Covid-19 regulation-making is administrative action, had more procedural fairness and participation been included in the process then the right would not have been breached. I will then show that the process was irrational, unreasonable and unlawful, and that the executive used the DMA declaration to exercise powers of emergency and that the lockdown declaration was more a de facto state of emergency and not a state of disaster. I will then set out the socio-economic consequences of the lockdown on gender-based violence, women and children, and early childhood development learners, and how more public participation and giving effect to just admin action could have mitigated these effects. Furthermore, this not only makes this irrational and unconstitutional but also takes us back to Apartheid like powers being exercised by the executive.
- ItemOpen AccessThe distribution of rights and responsibilities under international climate change law: an examination of the equity approach advanced by African states(2022) Babatunde, Elkanah Oluwapelumi; Chirwa, DanwoodMapping global climate change negotiations from 1992 to 2015, this thesis set out to examine how African states have sought to interpret the principle of equity within international climate change negotiations and the extent to which climate change treaties, from the United Nations Framework Convention on Climate Change (UNFCCC) to the Paris Agreement, have reflected these notions of equity. The thesis examined the inequality in the volume of country emissions, and the financial and technological ability of different state parties to undertake climate change action and the implication of these inequalities on the distribution of rights and responsibilities within climate change treaties. This thesis has shown that in various negotiations pertaining to the development of climate change treaties including the Paris Agreement, African states have consistently advanced arguments about equity that reflect principles of distributive and restorative justice. In advancing this interpretation of equity, African states have argued that they should be excluded from onerous legal obligations under these treaties so that climate change action does not impede the realisation of their developmental objectives. For them to bear such responsibilities, they have been arguing, their fulfilment can only be guaranteed if there is adequate financial and technological support from developed states. This thesis shows that there is credibility in the arguments. First, science has shown that developed states are responsible for the majority of the global emissions of greenhouse gas. It, therefore, follows that they should bear primary responsibility for addressing the consequences of such emissions. Secondly, developed states are better equipped with the finances and technology necessary for tackling climate change. To place the financial and technological responsibility for climate change on African states would be to place on them an unfair burden, which, in any case, is impossible to be borne by them; lex non cogit ad impossibilia. The thesis argued, however, that the differentiation of rights and responsibilities with respect to climate change cannot apply indefinitely. There must be a ‘cut-off' point. Developed states cannot be held perpetually liable for global emissions. As developed states' emissions decline and that of African states and other developing states increase, the distribution of rights and responsibilities must reflect this change. The current differentiation should only apply as a transitional window for developed states to reduce their emissions and for African states to pursue development and increase their capacity to respond to climate change and its challenges. v In this transitional period, the necessary climate technologies must be viewed as global public goods from which no state should be excluded.
- ItemOpen AccessThe impact of electoral gender quotas on women’s representation in legislative decision-making bodies(2019) Demir, Didem; Manjoo, RashidaTo overcome gender bias and long-standing inequalities, more than 110 countries worldwide are reported to practice gender quotas in some form. Nonetheless, electoral quotas are not uncontroversial, despite their political appeal and common adoption. Critics note that such measures run a danger of bringing to office individuals who lack the necessary qualifications and who may then be easily manipulated. Supporters in comparison argue that empowering members of groups who have historically been disadvantaged can result in more inclusive processes of policy-making - drawing in those previously excluded and enhancing the universality of legislative perspectives. This can change the outcomes from political decision-making to the extent that it improves access to public goods by those who had earlier been excluded or marginalised. The majority of comparative literature on women’s representation has argued that more inclusive and diverse legislatures are fundamental for the democratic legitimacy of elected bodies, primarily because they provide a voice for historically underrepresented groups. Studies also suggest that female participation in legislative processes helped to overcome gender bias in access to specific services and that female legislators tended to allocate more funds to causes important to women. In light of these arguments, the question remains one to discuss and opine on: are specific gender quotas the adequate instrument to give women access to power in order to achieve the ultimate goal of gender equal participation in decision-making processes? Furthermore, this dissertation aims to answer the question whether electoral gender quotas have an impact on policy outcomes enhancing women’s life and on women’s representation in a broader sense.
- ItemOpen AccessThe language of racism and the criminal justice system(1995) Koen, Raymond Anthony; Murray, ChristinaThe question of racial bias in the criminal justice system has long been a controversial one in South African legal, sociological and political discussion. This thesis is an intervention in the discussion, in favour of the argument that the criminal justice system is a site of racial and other forms of bias. Whereas the conventional emphasis has been on the structures of bias, the focus here is upon the language of bias in the criminal justice system, that is, upon the way in which white judicial officers speak to or about working-class people of colour. Traditionally, the analysis of biased language has been concerned with the patent racist utterance or opinion, identified according to the positivist techniques of content analysis. However, of late an important shift has taken place in the language of racism, to a discourse formally free of blatant racist insults. The analysis of the language of this "new racism" in the criminal justice system is the central focus of this thesis.
- ItemOpen AccessThe need for harmonisation of wildlife crime laws in the Southern African Development Community (SADC) A case study of the illicit abalone trade(2019) Cohen, Chelsea; Hübschle, AnnetteThe illicit wildlife trade (IWT) is the fourth most lucrative form of organised crime globally (Donnenfeld & Aucoin, 2017:1). The Global Financial Integrity (GFI) reports that IWT is one of the most profitable and illicit economies with a profit margin of US$ 23 billion annually (May, 2017:np). It has developed into one of the most expensive security challenges. Affecting a broad range of plants and animals, the illegal trade in wildlife deprives nations of their biodiversity, income opportunities, natural heritage and capital (Nowak, 2016:1). Although governments, non-governmental organisations (NGOs) and locals have sought to protect wildlife in the past, entire species of animals and plants are still in danger. To complicate matters, wildlife crime is no longer nationally bound and has moved to a highly sophisticated and a transnational problem (Steyn, 2017:np). Wildlife criminal syndicates exploit weaknesses in neighbouring countries criminal justice systems and porous borders amongst other elements making it easier for the crime to be transboundary in nature (Pienaar, 2014:2; Steyn, 2017:np), through loopholes derived from inconsistent neighbouring countries’ wildlife laws. This is due to each country listing country-relevant species and developing legislation suitable to their needs. However, the dynamics of wildlife crime being transnational and perpetrated by organised criminal networks cannot only be dealt with at a national level, as this may aid in the exploitation of wildlife crime laws and the above-mentioned loopholes (Warchol & Harrington, 2016:25). IWT has become a serious and global problem and has developed into a well organised criminal activity, involving multiple TCN’s. Its clandestine nature, coupled with it being deemed as a low risk crime has allowed it to extend into other forms of TOC’s in the SADC region. South Africa’s abalone crisis has moved from a national wildlife crime to that of a regional one. This is as a result of the TCN’s being involved in the poaching and smuggling of the marine mollusc at a rapid rate. Furthermore, East Asian criminal groups in collaboration with local Cape Flats gangs have successively used the illicit abalone trade to facilitate the drug trade in Cape Town. Although great efforts have gone into the protection of wild fauna and flora there the low risk of detection and weak deterrence due to low penalties in neighbouring SADC countries aid in the illicit trade. International regulatory frameworks such as CITES have undoubtedly been a key factor both in terms of raising awareness and developing collective responses and strategies to control the wildlife trade. However, like that of CITES, most international and regional treaties are only regulatory and require domestic laws to regulate the regional trade in endangered species. Ultimately, what is required is a domestic consensus in neighbouring countries laws to stop IWT.
- ItemOpen AccessThe powers, duties and control of persons participating in a compulsory winding-up of companies: some comparative aspects between the liquidation of a private company in South Africa and the "Gesellschaft mit beschraenkter Haftung" (Company with limited liability) in Germany(1990) Gradel, Christian Georg; Blackman, M. SThis dissertation deals with the powers, duties, -and control of persons participating in a compulsory winding-up of a private company in South Africa and a "Gesellschaft mit beschraenkter Haftung" (Private company with limited liability) in Germany. At the outset it is therefore necessary to give a short description of the private company and to outline the different grounds for a winding-up in both countries, thereafter only the winding-up _grounds relating to insolvency will be discussed. Special emphasis will be placed on an explanation of the position of the liquidator and the "Konkursverwalter" (trustee in bankruptcy) in South African and German Law.
- ItemOpen AccessThe right to fair compensation for land acquired for petroleum activities: a critique of law and practice in Tanzania(2021) Rugazia, Aloys R; Chirwa, Danwood MzikengeCompensation for land acquired for petroleum exploitation can be highly contentious. Often, the discovery of petroleum in a locality raises the landholders' expectations about the net benefit that the resources will bring their way. These expectations collide with the state's interest to exploit the discovered petroleum resources for the benefit of the whole nation. This brings to the fore the clash between the right of the landholders to their property and the right of the general public to natural resources. To resolve the clash, international human rights law requires the state to pay fair compensation for the land it acquires for petroleum projects. The main question this study asks is: to what extent is the Tanzanian petroleum legal framework for land compensation fair? To answer this question, the study draws on Rawls' theory of fairness, and analyses the jurisprudence of international human rights law, which helps to identify the elements of a fair land compensation regime in the context of petroleum projects. The study shows that, at the international level, the legal instruments and jurisprudence largely incorporate Rawls' theory of fairness by demanding that in acquiring land for petroleum projects the state must approach the landholders as equals. As such, the state must employ a participatory approach, which calls for consultation with the affected people, obtaining their consent, make decisions by consensus where possible, and considering their livelihood situations in calculating compensation. While Tanzanian petroleum laws and practices recognise the duty to give fair compensation to the people affected by petroleum activities before acquiring their lands, the study highlights numerous shortcomings in these laws and practices that prove that the land compensation scheme for petroleum projects in Tanzania fails to meet all the requirements of fairness. The study makes several key recommendations that could ensure that Tanzania fully complies with such requirements of fairness.
- ItemOpen AccessTransparency and accountability in the legal framework governing the upstream hydrocarbon industry in Tanzania mainland(2020) Mushi, Shirley Baldwin; Chirwa, Danwood MzikengeIt is widely believed that the slow socio-economic development of resource rich countries may be curbed by the promotion of transparency and accountability in resource governance. There is a universal consensus among politicians, multilateral institutions, corporations, and civil societies that the ‘paradox of plenty' and its associated social ills of corruption, poverty and conflict are mainly due to the lack of transparent and accountable resource governance. Nations have thus adopted policies and legal frameworks on resource governance that seek to codify and implement the principles of transparency and accountability. Even so, transparency and accountability are still far from being realised in most developing nations. This thesis argues that transparency and accountability may only be realised in practice if their aspects are duly incorporated in the law. Using the conceptual foundations on the governance principles of transparency and accountability, the thesis identifies four components that a legal framework ought to incorporate to foster transparency and accountability in practice. First, there has to be clear provisions establishing accountability relationships in the legal framework. Questions on who the actors are, who is to be called to account, who is entitled to hold another to account, and for what could one be held accountable have to be made very clear in the law. Even within the framework of multiple accountability mechanisms clarity of the circumstance the various mechanisms function is key. Equally, transparency relationships have to be clear on the kind and nature of the information to be disclosed, to whom it may be disclosed, at what time and in which manner such information may be disclosed. Second, the legal framework must provide for suitable accountability implementation mechanisms that give the accountor the required independence and mandate to inquire, render judgment and have the capacity to put its decisions to effect. Third, the legal framework ought to be able to create a well-coordinated web of accountability structures to provide for checks and balances. The legal framework should be able to ensure that actors given authority to fulfil their obligations are able to answer and face vigorous scrutiny and verification processes by independent actors. Lastly, the legal framework has to facilitate access to clear, reliable and complete information by interested parties and the public to promote transparency. The thesis uses these components to conduct an appraisal of the legal and institutional framework governing hydrocarbons in Tanzania. It establishes whether the governance aspects of transparency and accountability are duly incorporated in the legal framework to ensure their implementation in practice. It concludes that Tanzania's legal framework on hydrocarbons recognises on paper the value of transparency and accountability, but it largely fails to incorporate them sufficiently in a way that ensures they are fully implemented.
- ItemOpen AccessUnlawful sale of state-subsidised houses by the Cape Town community housing company(2022) Mathiso, Chwayita; Lutchman, SalonaThis dissertation clarifies the protections available to housing subsidy beneficiaries who purchase houses through credit agreements. I look at the legislative framework that protects the right to access to housing in terms of section 26 of the Constitution. I consider a Constitutional Court case Amardien and Eleven Others v Cape Town Community Housing Company 2019 (2) BCLR 193 (CC) which established that sections 19 of the Alienation of Land Act and 129 of the National Credit Act give the procedural steps that a developer needs to take before it can cancel the sale agreement with subsidy beneficiaries to lawfully cancel such agreements giving effect to the right to housing. The case study determined that where disputes arise, both the National Credit Act and Alienation of Land Act provisions apply in the enforcement of the agreements. The beneficiaries' purchases of their houses must be registered to protect them from the seller selling their properties to third parties. The seller does not remain the property owner and is precluded from repossessing the houses and selling them to third parties without a court order. I argue that such conduct amounts to an unjustified infringement of their housing rights and constitutes an arbitrary deprivation of property. Judicial oversight is required in determining whatever enforcement mechanisms that are appropriate in the circumstances of default by the beneficiaries. I discuss the State's obligations in terms of the Housing Act and international law in the enforcement of the subsidy agreements by the Company relating to the beneficiaries' right to housing. I discuss how the State breached its obligations by failing to fulfil its obligations and the impact of such failure on the beneficiaries.
- ItemOpen AccessUnlawfully occupying the bridge to transformation: a case for judicial exploration when evictions are unjust and inequitable(2021) Jeewa, Tanveer Rashid; Lutchman, SalonaUnlawful occupation has recently peaked due to the slow pace of the State's provision of housing, coupled with the private housing market's inability to cater for poor and vulnerable people in society. As unlawful occupation happens on an indiscriminate basis, privately owned land also falls prey to it. In those instances, two core rights operate at odds with each other: the right of unlawful occupiers not to be arbitrarily evicted per section 26(3) of the Constitution, and the right of property owners not to be deprived of their property, except through the operation of a law of general application as per section 25 of the Constitution. When the unlawful occupation of private land is not contained, the number of unlawful occupiers grows rapidly, making immediate evictions impossible as they would be unjust and inequitable as per the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The Constitutional Court has previously awarded constitutional damages in a similar case (President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd [2005] ZACC 5). Damages were to be paid until evictions have been completely carried out. Yet 15 years later, it is clear that the informal settlement on Modderklip's land has grown in size and acquired some level of permanence. This dissertation argues that such cases amount to an unjustifiable limitation of the land owner's right to not be deprived of property. Consequently, the dissertation makes a case for judicial expropriation as a just and equitable order under section 172(1)(b) of the Constitution. The effect of such an order on the principle of separation of powers is also considered and it is contended that, in such exceptional circumstances, the courts should not shirk away from the duty of holding the State accountable and dispensing justice to the parties by expropriating the land, even if it tests the flexibility of the principle of separation of powers.