UWCScholar :: Browsing by Author "Kondo, Tinashe"

Browsing by Author "Kondo, Tinashe"

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Alternative dispute resolution in medical malpractice in south Africa
(University of the Western Cape, 2020) Nwedamutsu, Tsepo; Kondo, Tinashe
South Africa has seen a spike in medical malpractice litigation, including the number and size of claims instituted against healthcare practitioners. This has led to a backlog in medical malpractice court cases throughout South Africa and a strain on both the public and private healthcare sectors, affecting an already burdened healthcare system. The surge in medical malpractice litigation is not a new phenomenon in developed countries. Most have curbed this through alternative dispute resolution (ADR). This has been facilitated by effectively introducing efficient legal frameworks that promote ADR. Unfortunately, this is not the case in a developing country such as South Africa. To date, much research and literature has attributed blame for the large-scale increase in medical malpractice litigation to legal practitioners. This has been aided by comments made by the former Minister of Health, Dr Aaron Motsoaledi (Dr Motsoaledi). In as much as this may be the common perception, there appears, to the contrary, to be systematic problems in the South African healthcare system. The legal profession is only a minor contributing factor to the increase in medical malpractice litigation. The strained financial resources and shortage of healthcare staff in public hospitals contributes to the increased risk of medical malpractice cases. Furthermore, when considering the South African legal system, contingency fee arrangements have, in certain circumstances, increased vexatious litigation and, as such, it is on this basis that medical malpractice litigation has been on the increase in South African courts. This study seeks to analyse the current state of the South African healthcare system, and in light of the increasing number of medical practice claims and litigation, propose ADR mechanisms that offer efficient, cost effective, and expeditious channels to resolving these issues and to ensure that parties recognise the full benefits of ADR. This study proposes legal reform in medical malpractice litigation in South Africa. This thesis compares the experiences, legislative and policy frameworks in Australia and the United States of America (USA), in order to learn lessons that could assist South Africa in framing legislation and best practices for ADR. It contends that, in order to effectively develop and implement ADR to address medical malpractice litigation, it requires the involvement of the government, legislature, judiciary, legal profession and the public. It has identified court- iv annexed mediation as the appropriate ADR mechanism in addressing medical malpractice litigation.
Constitutionalising socio-economic rights in SADC: An impact assessment on judicial enforcement in South Africa, Zimbabwe, Botswana, Lesotho and Zambia
(Nelson R Mandela School of Law, 2020) Kondo, Tinashe
This paper assesses the manner in which socio-economic rights have been incorporated into the constitutions of selected countries in the Southern African Development Community. This debate is particularly important because, in the last decade, there have been changes or attempted changes to constitutions in some member states of this subregional community. However, much of the comparative work on socio-economic rights in the region predates these changes and is therefore, largely, no longer relevant. Accordingly, the constitutions of South Africa, Zimbabwe, Zambia, Botswana and Lesotho are surveyed. It was found that the state of socio-economic rights in these countries could be divided into three categories: those that have constitutionalised socio-economic rights, those without socio-economic rights in their constitutions, and those that have socioeconomic rights as directive principles of state policy. To understand the implications of these categories, an investigation was undertaken into whether a specific category undermines the enforcement, and subsequently, the realisation of these rights.
Invesment law in a globalised enviroment: A proposal for a new foreign direct invesment regime in Zimbabwe
(University of the Western Cape, 2017) Kondo, Tinashe; Lenaghan, Patricia
Most developed countries that enjoy the lion's share of foreign investment do not have domestic legal frameworks on foreign direct investment. This is because investors are attracted by a holistic picture of these countries. Such countries have strong institutions of governance, enjoy political and economic stability, embrace democracy, have respect for rights, and have high levels of development - factors which attract investors. In terms of regulation, many of these countries are heavily reliant on bilateral investment treaties. However, this is not the case in developing countries such as Zimbabwe. The existence of an effective and efficient legal framework on the governance of foreign direct investment is an important consideration for investors. This emanates from the fact that developing countries often have weak legal systems, shaky economies and uncertain political environments.
Legal and economic uncertainties clouding digital taxation : unpacking and addressing the issues
(University of the Western Cape, 2015) Kondo, Tinashe; Koornhof, Pieter
The digital economy has over the past years developed at a dramatic pace, generating substantial revenues for entities and individuals trading on this platform. This has fuelled vast interest and debate into whether such activity should be taxed. After the turn of the millennium, a lot of research on taxing the digital economy was done, but this was mostly in America and Europe. In South Africa, very little research has been done, most of which was conducted before the enactment of new pieces of legislation regulating digital tax. This study analyses how the South African digital tax framework interlinks with global tax principles. More specifically, the study seeks to clarify the legal and economic uncertainties surrounding the taxation of e-trade. The pertinent issues around this area will then be analysed in depth and potential solutions furnished. The Taxation Laws Amendment Act 21 of 2013 changed the position in South Africa in respect of the supply of electronic services. The definition of ‘enterprise’ was extended to include the supply of electronic services by a person or business outside South Africa, to a recipient in South Africa. Therefore, foreign enterprises could become liable to register as vendors in terms of s 23 of the Act, and become subject to VAT in terms of s 7 (1) (a) of the Value Added Tax Act 89 of 1991. Amongst other implications, the new regulations effectively shift the compliance burden from the local recipient to the foreign supplier in terms of the listed electronic services while at the same time creating compliance costs for the foreign supplier. The study builds on models adopted by other countries on the international scene. The United States and European countries have taken different paths on the matter compared to the one adopted by South Africa. The United States imposed a temporary moratorium on states levying certain taxes on Internet sales, while, on the other hand, the European Union levied different digital tax standards, which depend on whether or not the supplier is based in Europe. The research concludes that the majority of the problems surrounding the taxation of e-trade are not of a sovereign nature but rather of a multi-jurisdictional nature. The study recommends that at a global level, there is a need for the creation of: new e-tax rules in the WTO regime; a central registration portal; a third party collection and payment mechanism, an imbedded audit system in the portal; as well as built-in privacy mechanisms in order cure the existing shortcomings in taxing Internet transactions. For South Africa, the study suggests that the National Treasury create a timeline for the creation of a White Paper on the taxation of electronic commerce and the subsequent creation of more comprehensive Electronic Service Regulations within a reasonable period thereafter.
One step forward, two steps back: A review of Mushoriwa v City of Harare in view of Zimbabwe’s constitutional socio-economic rights
(University of Pretoria, 2021) Kondo, Tinashe; Masike, Shadreck; Chihera, Brian
In 2013 Zimbabwe enacted a new Constitution, introducing a raft of new changes, among them, the introduction of constitutional socio-economic rights. Not soon thereafter socio-economic rights were tested in the case of Mushoriwa v City of Harare in 2014. The High Court made a finding in favour of the applicant, a decision which enforced the right to water in section 77 of the Constitution. The ruling offered the view that the water bylaws used were unconstitutional and contrary to the enabling statute. This judgment was welcomed as a 'first true test' of socio-economic rights under the 2013 Constitution. In Hove v City of Harare the High Court judge agreed with the reasoning of the Court in Mushoriwa v City of Harare that, in the event of a genuine dispute of a water bill, there should be a recourse to the courts for remedies. In 2018, however, the Supreme Court overturned the decision in the Mushoriwa case. It declared that water disconnections in terms of the water bylaw are above board. This raises questions as to the constitutional obligation to protect the right to water imposed upon all organs of the state. It is against this background that this article reviews the case of Mushoriwa and makes comments on the effects of this judgment, specifically about the enforcement of socio-economic rights in Zimbabwe.
One step forward, two steps back: A review of Mushoriwa v City of Harare in view of Zimbabwe’s constitutional socio-economic rights
(African Human Rights Law Journal, 2021) Kondo, Tinashe; Chihera, Brian; Mbonderi, Bright
In 2013 Zimbabwe enacted a new Constitution, introducing a raft of new changes, among them, the introduction of constitutional socio-economic rights. Not soon thereafter socio-economic rights were tested in the case of Mushoriwa v City of Harare in 2014. The High Court made a finding in favour of the applicant, a decision which enforced the right to water in section 77 of the Constitution. The ruling offered the view that the water bylaws used were unconstitutional and contrary to the enabling statute. This judgment was welcomed as a ‘first true test’ of socio-economic rights under the 2013 Constitution. In Hove v City of Harare the High Court judge agreed with the reasoning of the Court in Mushoriwa v City of Harare that, in the event of a genuine dispute of a water bill, there should be a recourse to the courts for remedies. In 2018, however, the Supreme Court overturned the decision in the Mushoriwa case. It declared that water disconnections in terms of the water bylaw are above board. This raises questions as to the constitutional obligation to protect the right to water imposed upon all organs of the state. It is against this background that this article reviews the case of Mushoriwa and makes comments on the effects of this judgment, specifically about the enforcement of socio-economic rights in Zimbabwe.
The protection of personal information in smart cities: lessons for South Africa from the European union and the United States
(University of the Western Cape, 2023) Sheikh, Faisel Idris; Kondo, Tinashe
Innovative technologies are being employed in both public and private sectors alike. Since the beginning of the 21st century, the use of these technologies has grown in both volume and type. E-commerce services have also developed utilising these technologies, complemented by the use of devices such as smartphones, tablets and computers. The integration of these technologies has even moved into homes. Modern technologies are being used to control homes, run appliances, amongst other purposes. Many of the devices in this ecosystem can be connected to the internet. Nowadays, one can switch on their air-conditioning system away from home using a mobile application. The same goes with closed-circuit television systems (CCTV) which can be monitored and controlled remotely using of an application enabled by wireless technologies (for example, WIFI).
Providing for the unwanted in a time of crisis: The socio-economic rights of migrant workers in South Africa under covid- 19 pandemic
(Juta, 2020) Kondo, Tinashe
Migrants are amongst the most vulnerable groups in South Africa. They are often subjected to harsh forms of discrimination and excluded from government policy considerations. They have not fared differently under the Covid-19 responses by the government. This is because, while South Africa is a middle-income country, at least half its households struggle to meet their needs, particularly when there are market disruptions. Accordingly, a widely held view is that already sparse government resources cannot be spent on ‘foreigners’ who ‘voluntarily migrated’ to South Africa and ‘take up jobs meant for locals’. Assistance to unemployed migrants is viewed as insensitive to the plight of unemployed citizens who have no access social protection or jobs. Against this backdrop, this chapter assesses the response of the South African government to the socio-economic rights (SERs) of the migrant population. It further interrogates whether the South African government has used best practice labour and humanitarian standards to protect SERs of migrants during the Covid-19 pandemic.
Reforming patent law in South Africa: Social justice, human rights and big pharma
(University of the Western Cape, 2022) Petersen, Aqeelah; Kondo, Tinashe
Intellectual property (IP) can be defined as an idea or material that is legally protected from the unauthorised use thereof by other persons, and a person who has invented a particular pharmaceutical drug or medical product will apply for a patent to protect such an invention against counterfeiting and other infringements, which means that only such an inventor can benefit from the manufacturing of a product for a certain period of time, in exchange for public disclosure of the invention. 1 IP first emerged in South Africa as a result of the colonisation of the country by the English.2 As a result, South Africa’s IP system developed to match up to that of England.3 One of the main aims of the colonisers was to benefit themselves at the expense of the colonised.4 Resultantly, they introduced the concept of exclusive rights and monopolies.
Socio-economic rights in post-Mugabe Zimbabwe
(Dullah Omar Institute, 2018) Kondo, Tinashe
From 1980 to 2017, Robert Mugabe ruled Zimbabwe through a regime that posed as ‘democratic’ but which for all intents and purposes was a dictatorship. The power of the government stemmed not from the will of the people but its control of the armed forces and intelligence operatives. As a result, human rights abuses were commonplace. Poor governance, coupled with sanctions, led to the collapse of social systems. Poverty and hunger were the order of the day, and many basic socio-economic rights (SERs) could not be realised. In 2017, the military intervened and succeeded in pressurising Mugabe into resigning. His former vice president, Emmerson Mnangagwa, took over as president, promising a raft of changes, including respect for human rights. Against this backdrop, we look at developments in human rights, in particular SERs, since Mugabe’s exit.
Socio-economic rights in Zimbabwe: Trends and emerging jurisprudence
(Pretoria University Law Press, 2017) Kondo, Tinashe
In a country such as Zimbabwe where many are deprived of opportunities and resources owing, in part, to injustices of the past, socio-economic rights are of the outmost importance. As a result, the new Constitution of Zimbabwe, adopted in 2013, expressly provides for socio-economic rights. While these are yet to be extensively tested, two cases discussed in the article illustrate the willingness of the courts to enforce these rights. In the Mushoriwa case, it is shown that state as well as non-state actors have to refrain from negatively interfering with constitutionally-protected and enforceable socio-economic rights. The Hopcik case shows that there is a positive obligation on the state, which may involve the allocation of resources, to ensure that socio-economic rights are realised. These two cases serve as a good platform from which the courts can continue to develop the jurisprudence on socio-economic rights in Zimbabwe. It is suggested that guidance in dealing with more complex socio-economic rights cases can also be obtained from South African jurisprudence, particularly from the Grootboom case.
The regulation of social media content personalisation: An international human rights perspective
(University of the Western Cape, 2023) Lewis, Clifford Pierre; Kondo, Tinashe
This mini-thesis critically examines the extent to which existing international, regional, and domestic legal frameworks provide effective mechanisms for preventing social media content personalisation from violating Article 25(b) of the International Covenant on Civil and Political Rights. Through a comprehensive analysis of human rights law and emerging cyber law, the study explores the complex interplay between psycho-social patterns of engagement, social media algorithms, and the human right of democratic participation. The research employs historical, analytical, and comparative methodologies, and draws on literature from law, psychology and technology to evaluate legal instruments and enforcement mechanisms across international, regional, and domestic contexts. It identifies significant gaps in current frameworks, including challenges related to the inter-actor interconnectedness of human rights in cyberspace, jurisdictional issues arising from the borderless nature of social media, and evidentiary difficulties in establishing direct links between algorithmic content curation and human rights violations.

Browsing by Author "Kondo, Tinashe"

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