Theses and Dissertations (Public Law)

Permanent URI for this collectionhttp://hdl.handle.net/2263/31848

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A comparative analysis of Swaziland’s Environmental Impact Assessment (EIA) laws
Dlamini, Mehluko (University of Pretoria, 2016-10)
N/A
Judicial deference as a lens through which to see the application of the principle of complementarity under the rome statute
Ncame, Noluthando (University of Pretoria, 2019-10)
This dissertation sets out to achieve an alternative approach to assessing complementarity. In this respect, it seeks to provide a new approach for the Court to follow to ensure that it complies with the complementarity regime of the Court. The core content, from a legal perspective, of the principle of complementarity in the Rome Statute is identified and explored. This is achieved by looking at how previous international tribunals have addressed the distribution of jurisdictional competence between international and domestic jurisdiction. This essence of the principle of complementarity as it stands in article 17 of the Rome Statute, which is the heart of the Court’s complementarity regime, is set out. The study addresses the situations in Libya, Kenya, Uganda and the Sudan. In addressing these situations an attempt will be made to establish the manner in which the ICC applies the principle of complementarity. A critically analyse the judgements delivered by the Court on admissibility in the context of these situations is carried out. In the situation in Sudan, there has not been a formal admissibility challenge brought before the Court. However, even there the tensions arising from the distribution of jurisdictional competence also plays itself out in the rhetoric relating to the ICC’s exercise of jurisdiction in that situation. These are distilled principally from the AU High Level Panel report on Sudan. This paper proposes that the judges of the Court need to embrace a deference doctrine to assist them in the task of realising the complementary nature of the Court. The following deference doctrines are set out: exhaustion of domestic remedies, margin of appreciation, proportionality, rationality, reasonableness and judicial deference. These doctrines are then tested against the four situations. It is concluded that the ideal deference doctrine for the ICC is one that has a supervisory element to it. It is recommended that this doctrine should be incorporated into the system by the judge through their inherent powers rather than by an amendment of the Rome Statute, as that would be unrealistic.
The interaction between medical ethics, case law and the National Health Insurance : a discussion of the South African health care crisis
Beukes, Eunette (University of Pretoria, 2016-11)
N/A
Illegal mining in South Africa and Peru: a comparative analysis of policy, enforcement and socio-economic impacts
Shaba, Reatlegile (University of Pretoria, 2025-11-30)
Illegal mining poses a substantial threat to the economies, environments and social fabrics of mineral-rich nations. This dissertation contends that South Africa’s illegal mining issue is not solely due to inadequate enforcement but also results from deficiencies in the legislative and regulatory framework, especially the lack of formalisation pathways for artisanal and small-scale mining (ASM). This research utilises a comparative legal analysis with Peru, exploring the policy frameworks, enforcement practices, and socio-economic impacts in both countries. South Africa’s response to illegal mining has been reactive and punitive, characterised by criminalisation without sustainable solutions and a failure to differentiate between subsistence-driven artisanal miners and profit-motivated criminal organisations clearly. The study finds that the Mineral and Petroleum Resources Development Act (MPRDA) remains uncertain and ambiguous owing to burdensome mining licensing procedures that often disadvantage subsistence miners from marginalised communities, driving them towards illegal mining. Peru has seen partial success through legal reforms that not only recognised ASM, but also differentiates between informal ASM and illegal mining. These reforms are complemented by the creation of the Integral Registry of Mining Formalisation (REINFO) and the criminalisation of various supply chain actors engaged in illegal mining. The study offers recommendations, including legislative amendments to formally recognise ASM, the establishment of a formalisation registry to help distinguish between informal and illegal miners, criminalisation of the illegal mining supply chain, and improved intergovernmental agency collaboration.
The International Criminal Court sentencing decisions to persons convicted of international crimes in accordance with Articles 76-78 of the Rome Statute
Magobotiti, Chris (University of Pretoria, 2026-02-20)
This study examines the sentencing decisions of the International Criminal Court (ICC) in relation to individuals convicted of international crimes. It explores the development, trends, patterns and shifts in sentencing practices from 2012 to 2025, focusing on key historical moments that have shaped the ICC’s approach to punishment. While not a comprehensive historical account, the study situates the ICC within the broader evolution of international criminal justice, tracing its roots from the post-World War II tribunals (Nuremberg and Tokyo), through the ad hoc tribunals for the International Criminal Tribunals for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) to the establishment of hybrid courts and the ICC itself. These developments have contributed significantly to the growth of International Criminal Law (ICL) jurisprudence. Using an exploratory desktop research methodology, the study draws on primary sources such as ICC case law, penal statistics, and the Rome Statute, complemented by secondary literature. Quantitative data were derived from sentencing figures, while qualitative insights were obtained through analysis of judgments and legal commentary. The findings reveal that ICC sentencing decisions are shaped by complex penal philosophies and judicial discretion, with the gravity of the crime emerging as the principal factor in sentencing determinations. The study concludes that while the ICC has developed a structured sentencing framework, its decisions often reflect leniency and variability. It recommends that the court strive for greater balance in its sentencing practices by consistently applying the factors outlined in the Rome Statute and Rules of Procedure and Evidence (RPE). Furthermore, the study suggests that the ICC’s discretionary powers should be exercised transparently and effectively, and that future reforms, particularly the development of sentencing guidelines, could enhance consistency and predictability. These recommendations are intended not only for judicial application but also to contribute to ongoing academic discourse on international criminal sentencing law.
Assessment of the African Union regime on environmental democracy
Owuor, Martin Shikuku (University of Pretoria, 2026-02-20)
Although the right to a generally satisfactory environment conducive to development is enshrined in the African Charter on Human and Peoples’ Rights (Banjul Charter), the Maputo Protocol on the Rights of Women in Africa, and the Revised African Convention on the Conservation of Nature and Natural Resources (Maputo Convention), the enforcement of this environmental right within the African Union’s environmental governance framework has not been optimal. The lack of a robust legal framework for the exercise of procedural environmental rights – specifically, access to information, public participation in decision-making processes, and access to justice in environmental matters – which are vital for the realisation of the right to a clean and healthy environment, has hindered and undermined the full realisation of environmental rights in Africa. This thesis examines how the exercise of environmental procedural rights in Africa could be revitalised through effective environmental democracy, as outlined in Principle 10 of the Rio Declaration, drawing on lessons gleaned from a comparative analysis of both the Aarhus Convention, adopted in 1998 by European states, and the Escazú Agreement, adopted in 2018 by countries in Latin America and the Caribbean. Based on an analysis of the structures of various multilateral environmental agreements (MEAs), the thesis proposes the negotiation of an annex to the Maputo Convention to provide for the right of access to information, public participation in decision-making processes, and access to justice in environmental matters in Africa. The annex should also include provisions for the protection of environmental human rights defenders, who are increasingly under threat in Africa, and incorporate a non-compliance mechanism (NCM) that is accessible to both civil society and individuals issuing binding legal decisions, thereby overcoming the current barriers created by the requirements for a declaration under Article 34(6) of the Protocol to the Banjul Charter establishing the African Court on Human and Peoples’ Rights. The preference for using an annex to establish a regime for environmental democracy in Africa is based on the fact that the process for its negotiation and entry into force is not as protracted, both legally and politically, as either a treaty or a protocol would be. Additionally, sufficient precedent already exists in international organisations for the use of annexes in multilateral treaties, such as the Chicago Convention of the ICAO, the Cartagena Protocol on Biosafety to the UN Convention on Biological Diversity, and the IMO MARPOL Convention, among many others.
Unenforced anti-sodomy laws as a tool against advocacy for LGBTQI+ rights in Africa
Moshira, Koketso Bontle Boitumelo (University of Pretoria, 2025-11-05)
This dissertation examines the political nature of anti-LGBTQI+ laws in the African region. Although many African countries retain these laws on the statute books, they rarely enforce them, while remaining resolute against repeal or decriminalisation. Departing from a human rights perspective, this study first investigates the frequency and modalities of enforcement, analyses the socio-political dynamics that underpin their retention, including how human rights aid conditionality and international donor relations interact with LGBTQI+ issues. It contends that the legal framework functions as a vehicle for political self-definition, permitting governments to project strength, mask weakness, and sidestep necessary socio-economic reforms. Through scapegoating the LGBTQI+ community and invoking African sovereignty against Western human rights regimes, political elites amass considerable capital. Ultimately, these laws endure as instruments of financial exploitation and harassment, while bolstering national cohesion via the symbolic exclusion of a minority deemed "un-African". Thus, they constitute potent political currency, conferring legitimacy on state authority through exclusion.
The impact of blockchain technology on international trade in the supply chain industry
Naidoo, Kereece (University of Pretoria, 2025-10-12)
This dissertation focuses on the use of Block chain technology on international trade in the supply chain industry. This paper sets out the definition of Blockchain, and its relationship with smart contracts. This paper, further investigates common non-tariff barriers faced in international trade, within the supply chain industry, and identifies block chain, as an effective mechanism to reduce these issues. The paper further highlights the limited recognition of this technology in international law, however, it emphasises that there are a few international legal instruments which recognise the potential benefits and uses of this technology in international trade law, within the supply chain industry. One particular legal instrument highlighting the significance of block chain technology, is the World Trade Organisations’, Trade Facilitation Agreement. This Agreement does not directly mention blockchain, however, the aim of the Agreement is to enhance trade facilitation, through streamlining the customs process, and promoting the use of digitally advanced technologies to do so. This paper makes mention of a certain provisions in the Trade Facilitation Agreement, which promote the use of BCT, further highlighting its advantages in international trade. Many of the advantages of blockchain, promoted by the Trade Facilitation Agreement are due to its unique ecosystem like features. This paper explains the layers of blockchain, and how each layer can be used to enhance the previous layer, ultimately allowing for enhanced customisation, which can be used for a specific purpose. This paper elaborates on the Trade Trust which is an example of a customised blockchain, created by a specific country to facilitate their international trade in the supply chain industry. This dissertation, thereafter, exposes the common non-tariff barriers faced in intra African trade. It further emphasises that while this technology is not fully recognised by African countries, intra African trade can benefit immensely it. This dissertation thereafter, explains how it can be used to facilitate internal collaboration. This paper highlights the potential opportunities provided by block chain, and other technologies, which can be used to facilitate international trade, and further explains it’s the potential benefits for South Africa. Common areas of concern, both in intra African trade, and identified in other countries, are the customs process, and logistics stage. These processes are stagnated due to factors such as corruption, the use of paper based systems, lack of transparency and standardisation, as well as a lack of recognition and implementation of digital systems such as blockchain technology.
An analysis of the application of international human rights law to content moderation on social media platforms
Ndyulo, Neliswa Lisa (University of Pretoria, 2025-10-03)
Content moderation is a vital component of the business model utilised by global social media platforms. These internet-based services offer entertainment, news, and a space for sharing ideas and information. Platforms regulate which information and ideas, as well as which users and the extent to which they can access, receive, and share them. This is achieved by defining the scope of permissible content through rules outlined in service agreements and community guidelines and enforcing these rules by making value judgments about content visibility, removal, and user access. Ultimately, platforms define the scope of the exercise of the right to freedom of expression online without regard to the laws of any State. However, it is presumed that the laws of a platform’s State of origin determine the limits of the authority platforms have over the exercise of the right to freedom of expression online. Under international law, States are required to regulate social media platforms and must protect human rights from adverse effects arising from the operations of platforms. According to the International Covenant on Civil and Political Rights, States must promulgate laws that safeguard the right to freedom of expression. Additionally, States must exercise due diligence when they regulate social media platforms. According to Article 19(3) of the ICCPR, while freedom of expression can be restricted, any restrictions imposed must comply with the standards set in the Article. States regulate social media through intermediary liability laws that permit self-regulation and shield platforms from legal liability for the decisions they make regarding user expression online. The conventional construction of treaties suggests that they do not apply to non-State actors and are thus not applicable to social media platforms. Therefore, this study critically assesses the applicability of international human rights law, particularly Article 19 of the ICCPR, to social media. This study shows that Article 19 of the ICCPR and the obligations derived from it apply to social media platforms and are enforced indirectly through the traditional framework. Alternatively, Article 19 is directly applicable, and platforms must abide by its obligations when moderating content.
Strengthening the mandate of the Pan-African Parliament towards improved Regional integration
Sekeramayi, Tariro (University of Pretoria, 2025-03-30)
The mini-dissertation explores the role of the Pan-African Parliament (PAP) in enhancing regional integration in Africa. The research aims to assess the extent to which the PAP has fulfilled its objectives and to propose measures to strengthen its mandate. The mini-dissertation provides a background on the PAP and its formation as well as highlighting that the PAP as one of the key organs formed during the transition from the OAU to the AU and the PAP’s function as one of the organs earmarked to achieve the objectives of the AEC. The mini-dissertation gives an overview of the organs of the PAP as well as its structure in order to provide insight into how the PAP is able to discharge its functions through these organs. The mini-dissertation locates the PAP within the regional integration agenda of the AU and highlights specific elements of the PAP and AU architecture that can be utilised to further this objective of the PAP. The research discusses the extent to which the PAP has been able to discharge functions such as facilitating and overseeing the implementation of AU policies, objectives and programmes as well as promoting human rights and consolidating democratic institutions and culture, good governance transparency and the rule of law. The dissertation emphasizes the need for improved institutional capacity, technical resources, and political commitment to enhance the PAP's role in regional integration. The study concludes with recommendations for bolstering the PAP's capacity to effectively discharge its functions and contribute to the AU's integration agenda.
Peremptory norms of general International Law (Jus Cogens) and the obligation to mitigate climate change : assessing the prospects for the emergence of a Jus Cogens obligation to mitigate climate change
Luhandjula, Yasmine (University of Pretoria, 2025-05-01)
This study examines the evolving relationship between jus cogens norms and the international obligation to mitigate climate change. Jus cogens norms are defined as peremptory norms of general international law “accepted and recognized by the international community of States as a whole as norms from which no derogation is permitted, and which can be modified only by a subsequent norm of general international law having the same character.” In essence, jus cogens norms represent the most fundamental and hierarchically superior rules of the international legal order. Their non-derogable nature renders them universally binding on all States, irrespective of consent, thereby reflecting and protecting the most fundamental values of the international community.Against this backdrop, the study investigates whether the obligation for States to reduce greenhouse gas emissions has attained, or may in the future attain, a jus cogens status under international law. The inquiry was grounded on the increasing recognition among States that climate change is an “existential threat to humanity,” with consequences severe enough to endanger the continued survival of humankind. Applying an established criteria for the identification of jus cogens norms, the study systematically assessed the legal foundations, scope, and normative character of States’ mitigation obligations as reflected in treaty and customary international law.The findings demonstrate that States are legally bound, both through treaty-based obligations and customary international law, to take measures to mitigate climate change. However, the study concludes that while these obligations have not yet attained a jus cogens status, the study argues that the universal threat posed by climate change and the moral imperative to prevent catastrophic harm strongly support the gradual elevation of this obligation to a peremptory norm of general international law (jus cogens).
Social media's double-edged sword : freedom of expression versus hate speech
Mphuthi, Masego Entle Palesa (University of Pretoria, 2025-07)
Social media platforms have become an imperative part of modern life, allowing people to convey not only their thoughts but also exercise their right to freedom of expression. International human rights laws espouse the right to freedom of thought and expression for everyone. However, many countries, under certain circumstances, have laws that restrict or outrightly ban social media expression, particularly of a type that is deemed to incite hatred and violence. Just as all eyes are meant to see, speech is meant to be heard and words are meant to be written, but it must also be prudently balanced with the right to equality and dignity. The need to balance the recurrent overlap between freedom of expression and what is perceived as hate speech creates a crucial question; where do we establish a boundary between legitimate expression and harmful speech? This analysis focuses on the legal frameworks, policies, and approaches to strike a balance between protecting freedom of expression and addressing potential social harms (being hate speech) on these platforms.
The role of awarding new mineral rights as a means of achieving broad-based transformation in the South African mining sector
Ramawa, Mushaathma Aubrey (University of Pretoria, 2025-09)
Transformation in the mining sector remains a problem in South Africa more than 30 years into democratic rule. The marginalisation of historically disadvantaged individuals during the apartheid South Africa is well document. This exclusion was achieved through an apartheid legal system using legislations such as Mines and Works Act that made it illegal for black South Africans to own mines. To address this exclusion, the democratic government introduced transformation legislations aimed at redressing the imbalances of the past and fast-track the participation of black people as owners and skilled labourers in the mining sector. An approach of making funding available for black people to buy shares or outright purchase of existing mines was preferred by government as a means to achieve transformation. This resulted in few black people with political links to the ruling party and some without knowledge of mining benefiting from such funding. Some black mine owners lacked knowledge while others lacked the ability to sustain the declining value of commodities leading to them exiting the mining space. To solve this problem and achieve a meaningful transformation, this study proposes transforming the sector through issuing of new mining rights. Government funding should be made available to black mining rights holders to assist them to start mining operations. This assistance should also include mentorship and access to market. Transforming the sector in this way will lead to the introduction of new mining operations that are black owned, located in areas with sizeable mineral reserves and likely producing minerals of the future.
Wild Coast perspectives on pragmatic approaches to just and equitable remedies in environmental law
Ramdunee, Michaela L. (University of Pretoria, 2025-09)
This study examines pragmatic approaches to just and equitable remedies in environmental law cases where there has been a substantial failure to comply with one or more legal requirements in obtaining oil and gas exploration licences in South Africa. The central aim of the study is to address the question of how just and equitable remedies can be formulated while striking a pragmatic balance between capital and economic opportunities and the protection of constitutional rights. This study employs doctrinal legal research and comparative legal research. This study draws on case law, the Constitution, Statutes, regulations, and academic writings. Doctrinal legal research is employed to discuss the core principles of environmental pragmatism and its underlying theory. Comparative legal research is used to compare the theory of environmental ethics with environmental pragmatism in outlining a framework for environmental pragmatism. The findings of this study suggest that environmental pragmatism has emerged as a guiding theory in the development of environmental ethics and environmental justice. Relief guided by environmental pragmatism will be fair as opposed to relief that is formulated with strict adherence to statutes and legal precedent. As reflected in the Wild Coast (SCA) case, just and equitable remedies in environmental law cases should involve a pragmatic approach. Policymakers in environmental cases must give preference to pragmatism when developing policy, and the judiciary should approach these cases from a pragmatic viewpoint when issuing relief. The conclusions drawn highlight that environmental pragmatism aligns closely with the goals of just and equitable remedies in legal practice.
Assessing the beneficiaries of the broad-based black economic empowerment programme within the normative framework of international law and the constitution
Gerber, Gideon Adolf (University of Pretoria, 2025-07)
John 12:6 “Now he did not say this because he cared for the poor but because he was a thief; and having the bag, he took for himself what was put into it”. The Everyday Life Bible
Expropriation of land against the backdrop of transformative constitutionalism
Mbali, Samkelo (University of Pretoria, 2023-10)
Abstract This study investigates the expropriation of land against the backdrop of transformative constitutionalism in South Africa. I examine the current Expropriation Act (new Act) and focus on section 12(3)(a)-(d) which provides for nil compensation in certain instances of expropriation. The lack of a provision expressly allowing expropriations to be done at nil compensation has necessitated an effort to amend section 25 of the Constitution. On 07 December 2021, a motion was tabled in the National Assembly to amend section 25 of the Constitution to allow for expropriations at nil compensation. The motion did not pass because the African National Congress (ANC) fell short of the required two-thirds majority, as neither the Democratic Alliance (DA) nor the Economic Freedom Fighters (EFF) supported the amendment. This failure and the inherent limitations of the old Expropriation Act gave rise to the new Expropriation Act. The main aim of the new Expropriation Act is to better realise the section 25 obligation to redress the result of a past racial discrimination through the expropriation of land that was taken from the majority of black people by the white minority. The current Expropriation Act seeks to address how the state will expropriate land at nil compensation in certain instances. The primary challenge of the new Expropriation Act lies in section 12(3)(a)-(d), which specifies four circumstances under which nil compensation may be applied. However, it also indicates that it is not ‘limited to’ these instances. The list is consequently not exhaustive and in theory, allows for expropriations against nil compensation under other unknown circumstances not stipulated under section 12(3)(a)-(d). The Act creates legal uncertainty and, if not administered with great oversight and frugality, can create a myriad of social and economic problems which include agricultural sustainability, the loss of employment, homelessness, a reluctance by foreign investors and even the possibility of State abuse and corruption. This study compares the new Expropriation Act to the old Expropriation Act. It investigates whether the new Expropriation Act passes constitutional challenges by analysing the limitation of nil compensation in terms of the section 36 limitation clause. Some of the social and economic issues that may arise from the practical implementation of nil compensation are discussed. Transformative constitutionalism as a possible lens to understand and interpret nil compensation is examined. The new Expropriation Act became law on 23 January 2025. Almost immediately, several political parties criticised the promulgation of this Act and indicated their intentions to challenge its legitimacy. This study was undertaken before the promulgation of the Act. However, many of the criticisms lodged at this Act still align with the concerns raised in this study.
The (mis)use of self-defence in international law
Potgieter, Rumandi (University of Pretoria, 2024-10)
The principle of self-defence is a fundamental component of the legal framework aiming to protect states from immediate threats and to preserve international peace and security. However, concerns have arisen in years regarding the misuse or misinterpretation of self- defence, leading to its misuse as a justification for the use of force by states. This research paper aims to critically examine the concern regarding the possible misuse of self-defence in international law. The objective is to explore the various dimensions of this issue, to analyse legal provisions and case law and to propose measures to tackle and mitigate such misuse. This mini-dissertation explores the complex landscape of self-defence in international law, specifically focusing on its potential misuse and the associated enforcement and accountability limitations. It starts by examining the history of self-defence and the principles that constitute the foundation of self-defence, and subsequently, the ambiguities that arise from their interpretation. The mini-dissertation analyses a range of case studies, including the U.S. Drone strikes in Yemen and Pakistan, the U.S. Assassination of Qasem Soleimani and the Saudi Arabia and Yemen conflict; just to name a few. These cases shed light on instances where self- defence principles have possibly been misapplied and on their legal implications. The research reveals challenges in enforcing self-defence actions and ensuring accountability, primarily due to factors such as the veto power within the United Nations Security Council (UNSC) and the absence of an international judicial mechanism for resolving self-defence disputes. It particularly examines debates surrounding interventions inclusion within the United Nations Charter, while advocating for a balanced framework that respects state sovereignty and concurrently protecting human rights and fostering global peace. The mini-dissertation emphasises the need for evolution and advancements in law to effectively adapt to evolving conflicts.
Evaluating the regulatory alignment between special economic zones and governmental beneficiation objectives in South Africa
Strydom, Karin (University of Pretoria, 2024-12)
For a long time, South Africa has been leveraging its mineral wealth to obtain national growth and development. However, despite the abundance of minerals, the extraction thereof does not necessarily translate into direct benefit for the South African society as a whole. Local beneficiation has been touted as vital in ensuring that these mineral resources create national value beyond the mere extraction thereof. A plethora of policies have been introduced to foster local beneficiation. However, as these are mere policies, there is little by way of enforceability. This study examines the regulatory instruments governing beneficiation in contrast with the various goals set out in policies for beneficiation. The Musina-Makhado Special Economic Zone (MMSEZ) project is then used as a practical example of how beneficiation is currently being fostered in South Africa. Specific focus is placed on whether the MMSEZ model can achieve the goals for beneficiation as set out in the policies. This is done by doctrinal legal research methodology, using primary legislation policies and commentary on the policies. Additionally, site-specific agreements relating to the MMSEZ aided in the study as practical application. The study raises various issues that can impact how beneficiation should be regulated to ensure benefit. From a review of the legislation and policies providing for beneficiation, it becomes apparent that the definition of beneficiation as contained in the Mineral and Petroleum Resources Development Act No. 28 of 2002 (MPRDA) is narrow in that it only regards downstream linkages within it definition of ‘beneficiation’. When contrasted with the various policies providing for beneficiation, it becomes evident that the meaning ascribed to beneficiation by the various governmental sectors is far broader than as defined in the MPRDA. The study also examines the extent of the Minister of Mineral Resources’ powers to regulate beneficiation and concludes that they are limited to mineral rights holders only. As a consequence, beneficiation plants are effectively unregulated insofar as compliance with the goals for beneficiation is concerned. As an example of the far-reaching effect of the lack of definitive regulation, the MMSEZ's structure and critique thereof are examined. In contrasting the goals for the MMSE and those set for beneficiation, it is clear that there is significant overlap. However, once the critique is examined, the study shows that insofar as the beneficiation plants themselves are concerned, the contribution of these plants to obtaining the goals for beneficiation was dubious at best. The study suggests that there is a missing link between the lofty ideals and assumed benefits arising from local beneficiation and the necessary mechanism to enforce the achievement of such benefit. It suggests that, as the powers of the Minister of Mineral Resources are limited to mining right holders only, while beneficiation affects various governmental departments, a centralised regulatory authority should oversee beneficiation. By broadening the definition of beneficiation, the intrinsic upstream and side stream linkages could also be regulated by this centralised regulatory authority.
Interpreting the role of judicial review on executive policy decisions : the case of United Democratic Movement v Eskom
Monare, Nkgakga Moshoeshoe (University of Pretoria, 2024-09)
The South African Constitution, 1996, provides for the separation of powers among the three branches of government (the legislature, the executive, and the judiciary) without definitive contours that define the demarcation features of the doctrine. While each branch is obliged to realise and protect the Bill of Rights, the Constitution equally created obligations for each branch to carry out its duties effectively without unconstitutional restriction. This is a constitutional mechanism that sustains and fuels democracy. Section 85(2)(b) of the Constitution accords the executive branch the power to formulate and develop policy without subjecting such policy to constitutional judicial review unless the policy is inconsistent with the Constitution or violates fundamental rights. Section 172(1) obligates the courts to declare “any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency”. This means that nothing is beyond the scrutiny of the courts. Section 2 also elevates and affirms the supremacy of the Constitution in that any “law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” The courts are therefore permitted to intervene when the policy, the formulation of which is the province of the executive, is inconsistent with the Constitution. Where the policy does not offend the Constitution, the courts are barred from unconstitutional intrusion into the terrain of the other branches. However, the challenge arises in determining whether a policy is inconsistent with the Constitution, thus allowing the courts to constitutionally interfere with the executive’s policy-formulation function. This research examined whether the North Gauteng High Court acted in line with the separation of powers doctrine when it ordered the executive not to load-shed certain public institutions, declaring such conduct as a violation of fundamental rights. The research used the case of United Democratic Movement v Eskom to illustrate that even if a policy appears to be poorly formulated and unpopular, it is not up to the courts to intervene. Rather, it is up to the voters to force policy changes through political and electoral processes. Such judicial intervention, in the absence of constitutional grounds, is an unmandated intrusion. The research recommended judicial caution and restraint when the courts are faced with policymaking cases with budgetary and resource-allocation implications. The research outlines the critical importance of the separation of powers as a doctrinal hygiene of the Constitution to ensure effective, accountable government and the rule of law. The research posits that there must be clear fundamental rights violation and unconstitutionality to warrant judicial intervention in the executive’s policy functions.
Weaponisation of outer space : a potential to transform peaceful purposes into acts of terrorism
Caunhye, Aeglesia Maria (University of Pretoria, 2024-10-30)
With the increasing reliance on space-based technology to assist with quotidian activities, outer space has become a contended but attractive acquisition for states. However, the risks posed by this reliance, specifically in the form of cyberattacks, may create a different threat for states. Space objects form dual-uses for both military purposes and civilian use. While military purposes are limited to the use of space for peaceful purposes only, article IV of the Outer Space Treaty does not define what the term “peaceful purposes entails” nor what a space weapon might be. This research output shares a perspective on how certain acts conducted by states through cyberattacks into other states’ space assets can transform the peaceful military use of a space object into an altered, weaponised space object and its potential to be used to perform acts of terrorism. An analysis will be conducted on the provisions of the Outer Space Treaty against the provisions of the draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (PAROS), and propose amendments which incorporate both legal texts while considering the risk of space terrorism.

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