Doctor Legum - LLD

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The 1996 Constitution and the Tax Administration Act 28 of 2011 : balancing efficient and effective tax administration with taxpayers' rights
(University of the Western Cape, 2016) Moosa, Fareed; De Ville, Jacques R; Croome, Beric J
Taxation is fundamental for development in South Africa (SA), a developing country with an emerging economy in which taxation is essential to capacitate the government so that it can fulfil its mandate under the Constitution of the Republic of South Africa, 1996 (Constitution). This mandate includes bringing about socio-economic transformation, part of transformative constitutionalism, through progressively realising socio-economic rights. This dissertation examines the way in which tax administration may take place efficiently and effectively with due respect for taxpayers' rights. A clear link is shown between taxation, human rights and the South African government's responsibilities to attain its transformation targets. To facilitate this process, the Constitution creates a legal framework for the imposition of tax and for the equitable distribution of tax revenue among the three spheres of government. For historical, political and other reasons, South Africans generally, as happens elsewhere in the world, lack a strong culture of voluntary tax compliance. Wilful non-payment of tax is antithetical to the values of democracy, ubuntu and the rule of law. Tax non-compliance minimises revenue collected from taxation. This, in turn, hinders the attainment of transformation in all its facets. A pressing need exists for laws that, on the one hand, promote tax morality and, on the other, strengthen the South African Revenue Service (SARS) so that it can effectively administer SA's national tax system (or grid). To this end, the Tax Administration Act 28 of 2011 (TAA) is pivotal. It regulates tax administration, a part of public administration. Under the Constitution, SARS is obliged to execute its functions in a manner respectful of taxpayers' rights and that upholds the Constitution’s values and democratic principles. Consequently, the TAA must strike a fair balance between, on the one hand, protecting taxpayers' rights and, on the other, arming SARS with adequate powers with which it can effectively combat the mischief of tax non-compliance. This dissertation shows that, when viewed through the prism of s 36 of the Bill of Rights (BOR), the powers conferred on SARS by ss 45(1), (2), 63(1) and (4) of the TAA to conduct warrantless inspections and searches, as the case may be, limit taxpayers' rights to, inter alia, privacy. It concludes that, whilst ss 63(1) and (4) ought to pass muster, ss 45(1) and (2) are susceptible to a declaration of invalidity under s 172(1) of the Constitution.
Access to reproductive health and rights for indigenous women in Zimbabwe: A case of the San community in Tsholotsho and Plumtree
(University of the Western Cape, 2023) Nkomo, Sindiso Nozitha; Durojaye, Ebenezer
Access to healthcare, including reproductive health, is an essential human right that necessitates the attainment of human development, non-discrimination between genders, and promotes women’s rights. Reproductive health and rights enable women to make independent decisions and choices relating to their bodies and make it possible to keep women healthy, safe, and dignified. Despite this importance, indigenous women often struggle to have access to satisfactory reproductive health services and have poorer outcomes compared to the general populace. Indigenous women from Zimbabwe are not exempt from this predicament. It is against this background that this study aims to interrogate the extent to which San indigenous women in Zimbabwe enjoy access to reproductive health and rights. The elements of reproductive health and rights which are the main focus of this study are: “prevention and treatment of sexually transmitted infections (STIs), including HIV and AIDS and cervical cancer; maternal health; and voluntary informed and affordable family planning services.” Studies have been conducted on access to other rights by San people, such as their right to education and to decide their cultural and ethnical integrity.
The accountability of juveniles for crimes under international law
(University of the Western Cape, 2016) Nortje, Windell; Werle, Gerhard
Children have been committing crimes during times of war and other armed conflicts since time immemorial. Yet, it is only over the last few decades that cognisance is being taken of child soldiers as a type of juvenile. The unfortunate sight of a child holding a gun has become a familiar picture throughout armed conflicts, especially in Africa. Both boys and girls are used as child soldiers and they can be as young as 5 years old. They are mainly regarded as victims of crimes under international law and are therefore usually rehabilitated once they have been disarmed and demobilised. Notwithstanding their need for rehabilitation, it is a fact that child soldiers commit some of the most egregious crimes under international law. They receive military-style training and are presumably not afraid of killing and carrying out orders. Yet it is recognised that generally they do not have the same level of maturity as adults. The reality of child soldiers who join armed forces therefore presents complex legal questions in the face of contemporary international criminal law principles which, on the one hand, afford protection to all children, and on the other, unequivocally call for the prosecution and punishment of those who are individually responsible for committing crimes under international law. Consequently, various safeguards need to be upheld to ensure that the best interests of the child are maintained once a child soldier is held criminally responsible. This thesis analyses the extent to which child soldiers can be prosecuted under domestic and international law, as well as the implementation of alternative measures to prosecution. The thesis proposes that a case-by-case approach should be considered when child soldiers are prosecuted for crimes under international law, thereby investigating and analysing the often distinctive circumstances related to their crimes.
The African Court on Human and Peoples’ Right: A test of African notions of human rights and justice
(University of the Western Cape, 2019) Aliu, Bello Ayodeji; Mujuzi, Jamil
The African Court on Human and Peoples’ Right (the Court) is the most recent of the three regional Human Rights Bodies. Envisioned by the African Charter on Human and Peoples’ Right, its structures was not planned until the Organisation of African Unity (OAU) promulgated a protocol for its creation in 1998. The Court complements the protective mandate of the African Commission on Human and Peoples’ Rights (‘The Commission’) and the Court has the competence to take final and binding decisions on human rights violations. Unlike its European and inter-American versions where their courts are integral parts of the cardinal instrument of the system ab initio, the establishment of the African Court was merely an afterthought. At the initial, protection of rights rested solely with the Commission upon African justice system which emphasises reconciliation as it is non-confrontational method of settlements of. The Commission is a quasi-judicial body modelled after the United Nations Human Right Committee without binding powers and with only limited functions covering examination of State reports, communications alleging violations and interpreting the Charter at the request of a State, the OAU or any organisation recognised by the OAU. The thesis answers the question whether the adoption of the African Court means that the African model of enforcing human rights has failed or whether having the Court constitute a concession to the triumph of the western model of law enforcement. The imperative of the 30th Ordinary Session of the OAU in 1994 where the creation of an African Court of Human and Peoples’ Rights was viewed as the best way of protecting human rights across the region would be treated. The relevance of such an examination is highlighted by the fact that the African Charter did not make any provision for the establishment of a Court to enforce the rights guaranteed thereunder. If we are to assume that justice by reconciliation has failed and should be replaced by or complimented with justice by adjudication as the primary means of conflict resolution, what guarantees are there that the latter form of justice will not also fail? This thesis therefore will critically evaluate the African Court on Human and Peoples’ Rights and assessed its potential impact on the African human rights system. It will also probe the power of the Court and see whether a clear and mutually reinforcing division of labour between it and the African Commission can be developed to promote and protect human rights on the continent. This research brings to focus an area that requires attention if the African human rights regime is to be effective. It put to test the criticism against the African Charter and the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights and also identified the present existing flaws in the African regional system. Furthermore, it ascertained whether or not, given the availability of other options, a regional Court is, in fact, the ideal mechanism for the protection of human rights in Africa.
The African court on human and peoples’ rights: a test of African notions of human rights and justice
(University of the Western Cape, 2019) Bello, Ayodeji Aliu; Mujuzi, Jamil Ddamulira; Durojaye, Ebenezer
The African Court on Human and Peoples’ Right (the Court) is the most recent of the three regional Human Rights Bodies. Envisioned by the African Charter on Human and Peoples’ Right, its structures was not planned until the Organisation of African Unity (OAU) promulgated a protocol for its creation in 1998. The Court complements the protective mandate of the African Commission on Human and Peoples’ Rights (‘The Commission’) and the Court has the competence to take final and binding decisions on human rights violations. Unlike its European and inter-American versions where their courts are integral parts of the cardinal instrument of the system ab initio, the establishment of the African Court was merely an afterthought. At the initial, protection of rights rested solely with the Commission upon African justice system which emphasises reconciliation as it is non-confrontational method of settlements of. The Commission is a quasi-judicial body modelled after the United Nations Human Right Committee without binding powers and with only limited functions covering examination of State reports, communications alleging violations and interpreting the Charter at the request of a State, the OAU or any organisation recognised by the OAU. The thesis answers the question whether the adoption of the African Court means that the African model of enforcing human rights has failed or whether having the Court constitute a concession to the triumph of the western model of law enforcement. The imperative of the 30th Ordinary Session of the OAU in 1994 where the creation of an African Court of Human and Peoples’ Rights was viewed as the best way of protecting human rights across the region would be treated. The relevance of such an examination is highlighted by the fact that the African Charter did not make any provision for the establishment of a Court to enforce the rights guaranteed thereunder. If we are to assume that justice by reconciliation has failed and should be replaced by or complimented with justice by adjudication as the primary means of conflict resolution, what guarantees are there that the latter form of justice will not also fail? This thesis therefore will critically evaluate the African Court on Human and Peoples’ Rights and assessed its potential impact on the African human rights system. It will also probe the power of the Court and see whether a clear and mutually reinforcing division of labour between it and the African Commission can be developed to promote and protect human rights on the continent. This research brings to focus an area that requires attention if the African human rights regime is to be effective. It put to test the criticism against the African Charter and the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights and also identified the present existing flaws in the African regional system. Furthermore, it ascertained whether or not, given the availability of other options, a regional Court is, in fact, the ideal mechanism for the protection of human rights in Africa.
The Allocation and Administration of Land by Traditional Leaders in the Republic of South Africa
(University of the Western Cape, 2021) Mtengwane, Akhiwe; Viljoen, S M
Land allocation and administration is a crucial role for traditional leaders, because it has remained one of the few de facto powers and sources of influence still available to them in their areas of jurisdictions.1 This role has been played by traditional leaders from time immemorial. Furthermore, the Constitution of the Republic of South Africa recognises the existence of traditional leaders.2 Moreover, the Constitution seeks to integrate the institution of traditional leadership by expecting national legislation to be put in place so that the roles of traditional leaders are known in society.3 However, roles with regard to the allocation and administration of land by traditional leaders have not been promulgated in legislation. Therefore, this research will look at the issues of land allocation and administration by traditional leadership in the democratic dispensation.
Analysing human rights accountability towards ending preventable maternal morbidity and morality in Uganda
(University of the Western Cape, 2017) Kabagambe, Agaba Daphine; Durojaye, Ebenezer
The persistence of preventable Maternal Morbidity and Mortality (hereafter MMM), in the developing world, despite ground breaking technological and scientific advances, is unacceptable. There is no cause of death and disability for men between ages 15 and 44 that comes close to the large scale of maternal mortality and morbidity. Thus, the prevalence of high MMM ratios indicates the side-lining of women's rights. Surprisingly, the causal factors of preventable MMM and interventions needed to reverse the pervasively high numbers are now well known. Yet, hundreds of women continue to die daily and to suffer lifelong illnesses while giving birth. In Uganda, despite various regulatory, policy and programmatic strategies, the most recent survey revealed that the maternal mortality ratios were at a staggering 438 per 100,000 live births.
Analysing human rights accountability towards ending preventable maternal morbidity and mortality in Uganda
(University of the Western Cape, 2018) Kabagambe, Agaba Daphine; Durojaye, Ebenezer
The persistence of preventable Maternal Morbidity and Mortality (hereafter MMM), in the developing world, despite ground breaking technological and scientific advances, is unacceptable. There is no cause of death and disability for men between ages 15 and 44 that comes close to the large scale of maternal mortality and morbidity.1 Thus, the prevalence of high MMM ratios indicates the side-lining of women's rights. Surprisingly, the causal factors of preventable MMM and interventions needed to reverse the pervasively high numbers are now well known. Yet, hundreds of women continue to die daily and to suffer lifelong illnesses while giving birth. In Uganda, despite various regulatory, policy and programmatic strategies, the most recent survey revealed that the maternal mortality ratios were at a staggering 438 per 100,000 live births.2 This study attributes the continued prevalence of high MMM rates to lack of accountability that would ensure services and resources are being maximized and redistributed equitably. Lack of effective accountability mechanisms in place encourages unbridled financial, human and technical resource wastage, diversion, non-utilization and embezzlement of funds. It is not enough that medical equipment, personnel and finances are increasingly being allocated to the health sector by the Government. Without effective tracking and supervisory mechanisms, these additional financial, technical and human resource allocation will most likely not translate into reduced MMM rates. Sadly, in Uganda, the role of accountability towards the operationalization of human rights is underappreciated. In fact, many health sector practitioners are unaware of the ways in which accountability can be implemented. Despite the recent infiltration of the term 'accountability' into laws and policies, it remains an elusive and fuzzy concept. Further still, as demonstrated throughout the study, accountability has been popularized by international and regional human rights monitoring mechanisms such as the UN treaty bodies, African Commission but at the domestic level, great strides have yet to be made in infusing human rights accountability into laws, policies, programs and practices in a way that will reverse the high MMM. The domestication of accountability is vital because human rights ideals are only turned into actual implementable strategies at the national level. A direct focus on Uganda would allow for the undertaking of the country's own specific challenges within its domestic context.
Analysing the transfer of ownership in the case of suspensive instalment agreements – a causal or abstract system and the implications thereof
(University of the Western Cape, 2023) Morgan, Kirsty Kate; Sibanda, Nkanyiso
South Africa follows an abstract system of transfer of ownership, as opposed to a causal system of transfer. Under an abstract system of transfer, the cause of the transfer, the iusta causa, is separated from and abstracted from the transfer of ownership itself. This results in the validity of the transfer of ownership being reliant on a real agreement and conveyance. The validity or invalidity of the underlying cause of the transfer is irrelevant for the purposes of determining whether ownership has passed. Instead, the validity of the transfer is dependent upon the real agreement and conveyance, specifically, delivery in respect of movable property. Delivery may take the form of either real or constructive delivery. In respect of constructive delivery, there is a numerous clausus of constructive delivery modes. In order to transfer ownership through the use of constructive delivery, the requirements of a particular mode must be met. The real agreement is insufficient on its own to affect transfer of ownership. The rigidity of the abstract system of transfer, although beneficial for legal certainty, can result in conceptual challenges at times. This thesis examines the conceptual challenges presented by the case of instalment agreements that reserve ownership until certain obligations are met. Specifically, analysing how and when the transfer of ownership, in the case of these types of credit agreements, takes place. This thesis analyses two approaches, the Lauritzen approach and the Info Plus approach, concluding that the latter approach provides the most equitable balancing of interests. The Info Plus approach allows ownership to transfer immediately, resulting in ownership passing to the transferee for the duration of the instalment agreement. The timing of the transfer, that is immediately, has important implications for other areas of law, in particular credit regulation as well as the law of cession and lease.
An analysis of the human rights and gender consequences of the new South African constitution and bill of rights with regard to the recognition and implementation of Muslim personal law (MPL)
(University of the Western Cape, 1996) Moosa, Najma; du Plessis, L M
Prior to the new constitutional dispensation in South Africa all women had identities of race and gender imposed on them. With a new dispensation in place Muslim women, however, still have to deal with identities attributed to them by religion and culture. The author of this dissertation is herself a Muslim woman who has struggled to reconcile her public life and "new found" equality with these identities. She found it difficult to believe that Islam, the self same religion which had brought seventh-century Arabian society out of its degenerating stupor, could be used to justify behaviour by conservative religious authorities ( Ulama) in South Africa which deny women equality. 1 Earlier research2 partly allayed her suspicions and fears but did not lay them to rest completely. The fact that South Africa was to face a human rights revolution which would ultimately affect the lives of all her citizens for the better, sparked off a desire within the author to establish whether it is not possible to reconcile the undeniable and unalterable spirit of equality within Islam with the implementation of a reformed Muslim Personal Law (MPL)3 so that women can enjoy the best of both worlds. It
An analysis of the legal framework on gender discrimination and women’s rights to property in Nigeria: a case study of the Igala people
(University of the Western Cape, 2023) Achimugu-Opaluwa, Agah Deborah; Durojaye, Ebenezer
Although Nigeria is a signatory to several international, regional, and homegrown legal instruments seeking to promote the rights of women, like; the Convention on the Elimination of all Forms of Discrimination against Women, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, and supported fundamentally by the Constitution of the Federal Republic of Nigeria 1999, which disallows female gender discrimination and also allows women the right to own immovable property. Evidence, however, abounds in most Nigerian communities and ethnic groupings of the flagrant disregard and abuse of the rights of women, especially in reference to property ownership and inheritance during and after marriage. Since the practices that deepen these manifestations of discrimination are supported by age-long traditional beliefs and customs, it seems to thrive without regard to the position of conventions and laws as those aforementioned. It is believed that the patriarchal nature of the Igala (a minority ethnic group, living in Kogi State, North – Central Nigeria and the focal point of this research) provides an enabling environment for women’s exclusion regarding property ownership and inheritance, with culture being used as a tool to justify violations.
An analytical study of South African prison reform after 1994
(University of the Western Cape, 2012) Muntingh, Lukas M.; Sloth-Nielsen, Julia
The history of prison reform after 1994 was shaped by the relationship between governance and human rights standards; the requirements for both are set out in the Constitution and elaborated on in the Correctional Services Act. Good governance and human rights converge in five dimensions of a constitutional democracy: legitimacy, transparency, accountability, the rule of law; and resource utilisation. The new constitutional order established a set of governance and rights requirements for the prison system demanding fundamental reform. It de-legitimised the existing prison system and thus placed it in a crisis. This required its reinvention to establish a system compatible with constitutional demands. The thesis investigates whether constitutionalism provided the necessary transformative basis for prison reform in South Africa after 1994. The Department of Correctional Services (DCS) senior management failed to anticipate this in the period 1990 to 1994. In the five years after 1994 senior management equally failed to initiate a fundamental reform process. This lack of vision, as well as a number of external factors relating to the state of the public service in the period 1994 to 2000, gave rise to a second crisis: the collapse of order and discipline in the DCS. By the late 1990s the state had lost control of the DCS and its internal workings can be described as a mess – a highly interactive set of problems in causal relationships. In many regards the problems beleaguering the prison system were created in the period 1994 – 1999. The leadership at the time did not recognize that the prison system was in crisis or that the crisis presented an opportunity for fundamental reform. The new democratic order demanded constitutional and political imagination, but this failed to materialise. Consequently, the role and function of imprisonment within the criminal justice system has remained fundamentally unchanged and there has not been a critical re-examination of its purpose, save that the criminal justice system has become more punitive. Several investigations (1998-2006) into the DCS found widespread corruption and rights violations. Organised labour understood transformation primarily as the racial transformation of the staff corps and embarked on an organised campaign to seize control of management and key positions. This introduced a culture of lawlessness, enabling widespread corruption. Under new leadership by 2001 and facing pressure from the national government, the DCS responded to the situation by focusing on corruption and on regaining control of the Department. A number of gains have been made since then, especially after 2004. Regaining control of the Department focused on addressing systemic weaknesses, enforcing the disciplinary code and defining a new employer-employee relationship. This has been a slow process with notable setbacks, but it continues to form part of the Department’s strategic direction. It is concluded that the DCS has engaged with and developed a deeper understanding of its constitutional obligations insofar as they pertain to governance requirements in the Constitution. However, compliance with human rights standards had not received the same attention and areas of substantial non-compliance remain in violation of the Constitution and subordinate legislation. Overcrowding, violations of personal safety, poor services and/or lack of access to services persist. Despite the detailed rights standards set out in the Correctional Services Act, there is little to indicate that legislative compliance is an overt focus for the DCS. While meeting the minimum standards of humane detention, as required by the Constitution, should have been the strategic focus of the DCS in relation to the prison population, the 2004 White Paper defines “offender rehabilitation” as the core business of the DCS. In many regards the DCS has assigned more prominence and weight to the White Paper than to its obligations under the Correctional Services Act. In an attempt to legitimise the prison system, the DCS defined for itself a goal that is required neither by the Constitution nor the Correctional Services Act. Compliance with the minimum standards of humane detention must be regarded as a prerequisite for successful interventions to reduce future criminality. After seven years, delivery results on the rehabilitation objective have been minimal and not objectively measurable. The noble and over-ambitious focus on rehabilitation at policy level distracted the DCS from its primary constitutional obligation, namely to ensure safe and humane custody under conditions of human dignity. Throughout the period (1994 to 2012) the DCS has been suspicious if not dismissive of advice, guidance and at times orders (including court orders) offered or given by external stakeholders. Its relationship with civil society organisations remain strained and there is no formal structure for interaction. Since 2004 Parliament has reasserted its authority over the DCS, not hesitating to criticise poor decisions and sub-standard performance. Civil society organisations have increasingly used Parliament as a platform for raising concerns about prison reform. Litigation by civil society and prisoners has also been used on a growing scale to ensure legislative compliance. It is concluded that prison reform efforts needs to refocus on the rights requirements set out in the Correctional Services Act and approach this task in an inclusive, transparent and accountable manner.
An analytical study of South African prison reform after 1994
(University of the Western Cape, 2012) Muntingh, Lukas M.; Sloth-Nielsen, Julia; NULL
The history of prison reform after 1994 was shaped by the relationship between governance and human rights standards; the requirements for both are set out in the Constitution and elaborated on in the Correctional Services Act. Good governance and human rights converge in five dimensions of a constitutional democracy: legitimacy, transparency, accountability, the rule of law; and resource utilisation. The new constitutional order established a set of governance and rights requirements for the prison system demanding fundamental reform. It de-legitimised the existing prison system and thus placed it in a crisis. This required its reinvention to establish a system compatible with constitutional demands. The thesis investigates whether constitutionalism provided the necessary transformative basis for prison reform in South Africa after 1994. The Department of Correctional Services (DCS) senior management failed to anticipate this in the period 1990 to 1994. In the five years after 1994 senior management equally failed to initiate a fundamental reform process. This lack of vision, as well as a number of external factors relating to the state of the public service in the period 1994 to 2000, gave rise to a second crisis: the collapse of order and discipline in the DCS. By the late 1990s the state had lost control of the DCS and its internal workings can be described as a mess – a highly interactive set of problems in causal relationships. In many regards the problems beleaguering the prison system were created in the period 1994 – 1999. The leadership at the time did not recognize that the prison system was in crisis or that the crisis presented an opportunity for fundamental reform. The new democratic order demanded constitutional and political imagination, but this failed to materialise. Consequently, the role and function of imprisonment within the criminal justice system has remained fundamentally unchanged and there has not been a critical re-examination of its purpose, save that the criminal justice system has become more punitive. Several investigations (1998-2006) into the DCS found widespread corruption and rights violations. Organised labour understood transformation primarily as the racial transformation of the staff corps and embarked on an organised campaign to seize control of management and key positions. This introduced a culture of lawlessness, enabling widespread corruption. w leadership by 2001 and facing pressure from the national government, the DCS responded to the situation by focusing on corruption and on regaining control of the Department. A number of gains have been made since then, especially after 2004. Regaining control of the Department focused on addressing systemic weaknesses, enforcing the disciplinary code and defining a new employer-employee relationship. This has been a slow process with notable setbacks, but it continues to form part of the Department’s strategic direction. It is concluded that the DCS has engaged with and developed a deeper understanding of its constitutional obligations insofar as they pertain to governance requirements in the Constitution. However, compliance with human rights standards had not received the same attention and areas of substantial non-compliance remain in violation of the Constitution and subordinate legislation. Overcrowding, violations of personal safety, poor services and/or lack of access to services persist. Despite the detailed rights standards set out in the Correctional Services Act, there is little to indicate that legislative compliance is an overt focus for the DCS. While meeting the minimum standards of humane detention, as required by the Constitution, should have been the strategic focus of the DCS in relation to the prison population, the 2004 White Paper defines “offender rehabilitation” as the core business of the DCS. In many regards the DCS has assigned more prominence and weight to the White Paper than to its obligations under the Correctional Services Act. In an attempt to legitimise the prison system, the DCS defined for itself a goal that is required neither by the Constitution nor the Correctional Services Act. Compliance with the minimum standards of humane detention must be regarded as a prerequisite for successful interventions to reduce future criminality. After seven years, delivery results on the rehabilitation objective have been minimal and not objectively measurable. The noble and over-ambitious focus on rehabilitation at policy level distracted the DCS from its primary constitutional obligation, namely to ensure safe and humane custody under conditions of human dignity Throughout the period (1994 to 2012) the DCS has been suspicious if not dismissive of advice, guidance and at times orders (including court orders) offered or given by external stakeholders. Its relationship with civil society organisations remain strained and there is no formal structure for interaction. Since 2004 Parliament has reasserted its authority over the DCS, not hesitating to criticise poor decisions and sub-standard performance. Civil society organisations have increasingly used Parliament as a platform for raising concerns about prison reform. Litigation by civil society and prisoners has also been used on a growing scale to ensure legislative compliance. It is concluded that prison reform efforts needs to refocus on he rights requirements set out in the Correctional Services Act and approach this task in an inclusive, transparent and accountable manner.
The appropriateness of equality legislation in addressing the challenges faced by black professional employees in South Africa
(University of the Western Cape, 2019) van de Rheede; Malherbe, K
All employees aspire to work at a place of employment which is free from racial discrimination, where equal opportunity and fair treatment are not merely principles that are promoted and encouraged, but implemented actively by their employers. For a number of black professional employees in South Africa, however, currently this is merely an aspiration. Evidence suggests that black people are still subjected to racial discrimination and that their growth into the ownership and management structures of the enterprises that employ them, is insignificant in comparison to their white counterparts, despite the progressive legislative measures enacted by the legislature to ensure otherwise. The Employment Equity Act 55 of 1998, as amended, was promulgated in order to promote equal opportunities and fair treatment in employment, through the elimination of unfair discrimination and to implement affirmative action measures to redress the disadvantages in employment experienced by designated groups. The Broad-Based Black Economic Empowerment Act 53 of 2003, as amended, was enacted to promote the economic participation of black people in South Africa. The objective of this thesis is to examine the relevant provisions of the Employment Equity Act 55 of 1998, as amended, its Regulations, the Codes of Good Practice enacted in terms thereof, as well as the Broad-Based Black Economic Empowerment Act 53 of 2003, as amended, together with its Codes of Good of Practice to determine whether this equality legislation is the appropriate vehicle to address the challenges experienced by black professional employees in the private sector. The stories of black professional employees’ experiences obtained from academic literature available insofar as it relates to racial discrimination, affirmative action and black economic empowerment is discussed through the lens of Critical Race Theory. This is done with a view to determining whether the slow pace of racial transformation when it comes to black professional employees employed in the private sector is an issue that the law can address. Particular reference is made to two professions: the legal profession and the financial professions. This thesis examines the difference between the minimalist and maximalist approaches to Black Economic Empowerment (BEE). The thesis reveals the limits to the incentive structure that does not place a premium on black ownership and that allows enterprises to benefit from BEE while not really changing management structures. It argues that seen through the lens of critical race theory the current equality legislation discussed in this thesis is based on including black people in a system where privilege and power are asymmetrically distributed. It also argues that legislation in itself is unable to rectify racial injustices. It therefore demonstrates the limitations of the current equality legislation as a vehicle to address the challenges faced by black professional employees in the private sector.
Assessing the effectiveness of the public procurement Act of 2007 in combatting corruption in Nigeria
(University of the Western Cape, 2023) Ayinde, Dare Joseph; Hamman, Abraham
The Public Procurement Act of 2007 (the PPA) was enacted to provide a sound legal and institutional framework for public procurement in Nigeria and prevent and curb corruption in the procurement process. However, although the PPA has been in force for more than 16 years, there is a doubt over its effectiveness as the level of corruption in the procurement process has not significantly reduced. This thesis examines how well the PPA prevents and combats corruption in the procurement process through the lens of game theory, the study of decision-making during which players must decide on strategies affecting the interests of other parties involved. In particular, it evaluates the PPA's suitability for preventing and combating corruption in the procurement process and points out any weaknesses in its provisions that reduce the effectiveness of the PPA in accomplishing so. The thesis establishes that the PPA has detailed provisions on the pre-contract and contract phases of procurement, with the exception of the post-contract phase of procurement, where its provisions are inadequate. It submits that the perceived ineffectiveness of the PPA in preventing and curbing corruption can be traced to two things. First, the poor implementation of its provisions, particularly the ex post facto anti-corruption provisions such as those regarding exclusion and debarment. Another example of the poor implementation of the PPA is the failure of the government to inaugurate the National Council on Public Procurement, one of the regulatory bodies established by the PPA. Secondly, there are gaps and flaws in the provisions of the PPA that make it less effective in preventing and combatting corruption in the procurement process.
Assessing the implementation of the Convention on the Rights of the Child in Lusophone Africa (Angola and Mozambique)
(University of the Western Cape, 2012) Mandlate, Aquinaldo Célio Tomás Samissone; Sloth-Nielsen, Julia
An Assessment of the Significance of the International Labour Organisation's Convention 182 in South Africa with specific reference to the Instrumental use of Children in the Commission of Offenses as a Worst Form of Child Labour
(University of the Western Cape, 2007) Gallinetti, Jaqueline Susan.; Nielsen, Julia Sloth; Faculty of Law
An analysis of the various forms of child labour since the industrial revolution illustrqtes that the primary focus was on working children and regulating their admission to employment and conditions of work, as demonstrated by the eventual adoption of the International Labour Organisation's Convention No. 138 concerning the Minimum age for Admission to Employment in 1973. Although the 20th century also ushered in the International censure for human rights violations in the form of supra-national binding conventions on slavery, forced labour and trafficking, these efforts had no specific focus on children and there was no internationally binding legal instrument that recognised the economic exploitation of children extended far beyond mere working conditions and employment issues to commercial sex exploitation, debt bondage and slavery. This thesis sought to evaluate the theoretical and practical soundness of Convention 182 generally in relation to South Africa more specifically.
The asset forfeiture regime in Malawi and its implications for the combating of money laundering
(University of the Western Cape, 2015) Phillipo, Jean; Fernandez, Lovell
The international legal framework on money laundering encourages states to put in place effective systems for the identification, freezing, seizure and forfeiture of proceeds and instrumentalities of crime. While the international legal framework obligates countries to adopt conviction-based forfeiture (criminal forfeiture), it only encourages them to consider adopting non-conviction based asset forfeiture (civil forfeiture). This has led to a situation where countries, such as Malawi, adopt only criminal forfeiture and not civil forfeiture. This study analyses the efficiency of the existing Malawian criminal forfeiture regime in curbing and preventing the proliferation of underlying profit-generating crimes and money laundering. This thesis contends, in part, that some countries have not adopted civil forfeiture because there is no international obligation to do so. It argues that the fact that states are not obligated to adopt civil forfeiture by international legal frameworks and national arrangements undermines the deterrent aim of the anti-money laundering and asset forfeiture systems in combating economic crimes. Some justify the casual approach to civil forfeiture by arguing that its implementation harbours the danger of violating human rights and constitutional guarantees. This thesis, however, advocates for the adoption of civil forfeiture within the limits of John Locke’s social contract theory, which guides states on how they can pursue policies and implement laws without limiting the rights of their people arbitrarily.
The centre cannot hold: The role of subnational governments in policing in South Africa
(University of Western Cape, 2019) Redpath, Jean; Steytler, Nico
South Africa continues to experience one of the highest crime rates in the world. Crime is unevenly distributed, and the police are not trusted by the majority of citizens. The power and responsibility for policing lies with the national government, through South Africa’s negotiated constitutional framework. Only a limited form of policing under local government, severely constrained by onerous requirements, is permitted in the legislative framework. Such centralisation of policing in federal states is theorised to be necessary to avoid partisan policing and armed separatism; to prevent local capture of police by local politicians; to ensure uniformity, equity and democratic change, and to ensure equitable outcomes; and to bring efficiencies of scale to policing.
Competition law and cartel enforcement regimes in the global south: examining the effectiveness of co-operation in south-south regional trade agreements.
(University of the Western Cape, 2017) Ndlovu, Precious Nonhlanhla; Lenaghan, Patricia
Competition law and its enforcement have become necessary tools in the face of trade liberalisation. Nowhere is this more evident than in the area of cross-border cartels. The global South is steadily becoming aware of this. With the advent of globalisation and trade liberalisation, individual economies have become intrinsically linked. Anti-competitive conduct in one territory may have an impact in another territory. Therefore, an effective regional competition law framework complements trade liberalisation, especially in light of the principal objective of the South-South regional economic communities: the deepening of regional integration, in order to realise economic development and alleviate poverty. Cartel practices, such as, market allocation cartels, are in direct contradiction to this primary objective. This is when enforcement collaborations in South-South regional economic communities becomes crucial. The regional legal instruments of the Common Market for Eastern and Southern Africa, the East African Community, the Southern African Customs Union and the Southern African Development Community make provision for enforcement collaborations among Member States. To facilitate collaboration, regional competition authorities have been created to investigate, among other things, cross-border cartels. Within these economic communities, there is a strong case for enforcement collaborations, as evidence shows that the majority of the firms engaging in cartels are the so-called Regional Multinational Corporations. They operate throughout the territories of Member States. Additionally, the international nature of cartels, such as, private international cartels and export cartels, provide an opportunity for South-South co-operation to be utilised. However, this co-operation has not been utilised to the fullest extent, especially with reference to cross-border cartel activities. This has been attributed to various factors, such as, institutional incapacities, resource austerity, the absence of common procedural rules, the lack of adequate investigatory tools, and political ineptitude. As a solution, this current study makes specific recommendations that are directed at enhancing the effectiveness of South-South collaborations pertaining to cross-border cartel activities.

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