Theses and Dissertations (Public Law)

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Evaluating the regulatory alignment between special economic zones and governmental beneficiation objectives in South Africa
(University of Pretoria, 2024-12) Rantlo, Tiisetso John; karin.strydom@googlemail.com; Strydom, Karin
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
(University of Pretoria, 2024-09) Radebe, Martha Keneilwe; moshoeshoe.monare@gmail.com; Monare, Nkgakga Moshoeshoe
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
(University of Pretoria, 2024-10-30) De Gama, Rafia; u19114088@tuks.co.za; Caunhye, Aeglesia Maria
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.
Between self-determination and the African union's position on uti possidetis : a legal analysis of Somaliland's secession claim
(University of Pretoria, 2024-10) Fagbayibo, Babatunde Olaitan; u23924617@tuks.co.za; Mbewe, Nelani Yves
This dissertation explores the complex legal tension between the right to self-determination and the African Union’s (AU) principle of uti possidetis, with Somaliland’s secessionist claim as the focal case. Since declaring its independence from Somalia in 1991, Somaliland has functioned as a de facto state with its own governance structures, yet it remains unrecognised internationally. The dissertation examines whether Somaliland’s pursuit of self-determination under international law justifies its bid for statehood and assesses the AU’s approach to territorial integrity as a significant obstacle to its recognition. In Africa, the AU upholds uti possidetis, a principle originally applied to post-colonial Latin America, which maintains colonial borders to preserve regional stability. This principle challenges movements like Somaliland by prioritising the inviolability of borders over the right to self-determination, especially when such claims threaten existing state boundaries. To understand the AU’s stance, this dissertation reviews foundational documents such as the AU Constitutive Act, which stresses territorial integrity, and significant case law from the African Commission on Human and Peoples’ Rights. The AU has consistently emphasised solutions that uphold existing borders, supporting internal autonomy but rarely endorsing secessionist movements. Examples from African cases, such as the Katanga separatist movement in Zaire, demonstrate the AU’s reluctance to recognise claims that risk fragmenting member states. Somaliland’s case for recognition is rooted in historical factors, including its brief period as an independent state before voluntarily uniting with Somalia in 1960. Its self-determination claim highlights a unique scenario: a stable, democratically governed region seeking recognition due to systemic repression and human violations in its past. However, the AU remains wary, as recognising Somaliland might set a precedent that could encourage other secessionist movements across the continent. In summary, while Somaliland meets the criteria for statehood, its quest for recognition faces substantial challenges due to the AU’s strict adherence to the principle of uti possidetis and territorial integrity, necessitating a nuanced approach that accommodates both stability and the aspirations of self-determination.
African regional remedies for violations of socio-economic rights
(University of Pretoria, 2024-12) Killander, Magnus; asiyah.thoken@gmail.com; Sheik Ahmed Thoken, Asiyah
The study examines the regional protection of socio-economic rights on the African continent, focusing on the normative and institutional frameworks. At the heart of this research paper is the African Charter on Human and Peoples Rights, which provides the basis for the protection of socio-economic rights. Unlike other regional human rights systems, the African human rights system is unique in that it places the protection of civil and political rights on the same footing as socio-economic rights, reflecting the interdependence of these rights. The study further examines the roles that the African Commission and the African Court on Human and Peoples’ Rights play in the protection of socio-economic rights on the continent. Through a detailed analysis of these regional institutional bodies' jurisprudence, activities, and reports, the dissertation evaluates the progress that has been made in the advancement of socio-economic rights protection. Further, the dissertation examines the challenges and barriers these regional institutions face in implementing their protective mandate. These challenges take the form of political resistance, budgetary constraints, and broader structural challenges within the African regional human rights system. The dissertation finds that although the African regional human rights system does have the procedural capabilities to protect socio-economic rights through its institutional bodies, due to various challenges, especially the lack of political will, the regional human rights system lacks the ability to effectively improve the lives of the victims affected by these violations.
The implementation and efficacy of the responsibility to protect doctrine in contemporary armed conflicts : the case of Gaza
(University of Pretoria, 2024-11) Dyani-Mhango, Ntombizozuko; u19075368@tuks.co.za; Mbedzi, Gundo Oscar Junior
The world is currently facing unprecedented humanitarian crisis and this has larger global implications. The Responsibility to Protect doctrine (R2P), has faced considerable criticisms because of the way it has been implemented in Libya, and its inaction in Syria. The destruction that resulted from the NATO intervention in Libya led to a lot of varying reactions from the international community and divisions in the UN Security Council. Given the extent of gross human rights violations Gaza is currently facing in the wake of October the 7th attacks, it will be interesting to look at whether R2P can be invoked to protect the people of Gaza.
Commentary on case law arising from COVID-19 legislation
(University of Pretoria, 2024-12) Grobbelaar Du Plessis, Ilze; bgmstrydom@gmail.com; Strydom, Beatrix Gertruida Magdalena
Discussion of courts' approach to the rule of law during the pandemic, the protection of fundamental rights and the standards of scrutiny and deference to be applied
An expansive interpretation of the water rights of black dispossessed communities in South Africa
(University of Pretoria, 2024-10) Fokala, Elvis; Radebe, Martha Keneilwe; u18098356@tuks.co.za; Tshamano, Ompha
The study provides an expansive interpretation of the right to water for black dispossessed communities in post-apartheid South Africa, arguing that the current interpretation of the right to water is insufficient as it does not acknowledge the vital role of water for black dispossessed communities. Drawing on the experiences of the Vhavenda people in the Vhembe district, the study examines water as a focal point of exclusion in traditional water governance, as well as a source of violence through the construction of dams, and as a tool for dispossession and displacement. In this context, water is seen not only as a physical resource but also as a social and symbolic one, with multifaceted associations and implications. The dissertation seeks to advocate for the right to access water and the preservation of the cultural practices of black dispossessed communities in post-apartheid South Africa. It recognises that water is a scarce resource, yet an integral part of people’s identities, culture, and religious beliefs. Therefore, it argues for a broad definition that acknowledges the anthropocentric elements and esoteric dimensions of water in relation to black dispossessed communities.
Remedial secession : the legitimisation of a separatist quest
(University of Pretoria, 2024-11) McKay (Nienaber), Annelize; miadp@rsabar.com; Du Plessis, Mia
This study examines the moral and legal justifications for remedial secession, which could be pursued by a region or group seeking to form a separate state without the parent state's consent. There are differing opinions on secession in international law, with some scholars arguing that it relates to colonialism only and others highlighting the tensions it can create. The dissertation examines the scope of the right to self-determination, territorial integrity, and remedial secession through self-determination in cases of persecution of human rights. The study will illustrate that although a right to remedial secession is not guaranteed in all circumstances, it is of considerable relevance for protecting human rights in the future. The method adopted in the text is by weighing territorial integrity against self-determination to illustrate that the latter should prevail when a minority group suffers persecution at the hands of the parent state. This approach implies that secession should only be permitted after peaceful resolution methods have been futile. The dissertation concludes by building upon a proposed framework for implementing and structuring a remedial right to secede in international law. While remedial secession remains a contentious issue, it could be a practical solution for addressing human rights violations. If a legal framework for remedial secession exists, the international community could offer a consistent approach to secessionist movements.
Examining the justice paradigms for African feminists in traditional dispute resolution mechanisms : a case study of Nyando Sub-County, Kenya
(University of Pretoria, 2024-08) Killander, Magnus; Murungi, Nkatha; africanwomencentre@gmail.com; Nyanjong, Anita Achieng
There appears to be a disjoint between the everyday experiences of justice by rural women justice seekers and what is primarily regarded as progressive jurisprudence by feminist liberal theorists. This disjoint has its genealogy in the global discourse on justice, which presupposes the universalism of justice. Feminist liberal theorists are central in this debate for advancing the idea of the universalism of justice without due regard to the everyday experiences and the power differentials of a diversity of women justice seekers. The idea of the universalism of justice emerges from liberal feminist scholars who criticize the inadequacy of the centrality of women's voices in John Rawls's justice as fairness in the exposition of the original position. This thesis departs from the predominance of male-led and western feminist discourses on justice. It relies on narrations of the lived realities of justice from ordinary women, more so, rural widows in the Nyando sub-county in Kenya who have resolved land and property rights disputes through cultural justice structures, considered by feminists as agents of reinforcing gendered hierarchies. This thesis reveals that traditional dispute resolution mechanisms can provide justice to rural women justice seekers in a manner that is protective of their rights. Relying on the diversity of African feminisms, which are predicated on multiple indicators, this thesis reveals the intersectionality of widows’ identities and their oppression within the context of the study. This thesis argues that the use of western universal ideas of justice as a paradigm for understanding women's oppression isolates the experiences of other women. This thesis argues for an approach which engages with the indigenous or local ideas of justice, focusing on the narratives of justice from the widows’ who are the subjects of this study. This thesis adopts feminist narratology as a methodology and illuminates the dominant individual and group narratives of widows’ pursuit of justice within the Nyando sub-county in Kenya. Paradigms of justice were identified based on recurring motifs during the interviews, including justice as recognition of a right, justice as truth and justice as peace. This thesis recognizes that while justice is not universal but contextual, the paradigms of justice identified may resonate in other similar settings. Finally, although this thesis finds that the traditional dispute resolution mechanisms can provide justice to rural widows, it makes recommendations from its analysis of the context of the justice mechanism in Nyando sub-county. Finally, this thesis argues that African feminist justice paradigms must be seen from the lens of the realities of African women who are at the margins, just like the widows in this study, whose ideas of justice are practical – and where human rights standards materialize in the vernacular.
Regulation of medical tourism in international law
(University of Pretoria, 2023-10) Dyani-Mhango, Ntombizozuko; u18132082@tuks.co.za; Patel, Saajidah
This paper explores the growing phenomenon of medical tourism, where people travel abroad for healthcare, and the legal challenges this creates due to differing regulations between countries. It examines the effectiveness of existing international legal frameworks governing medical tourism. Key challenges identified include varying standards, enforcement issues, limited legal recourse, and inequalities in access to healthcare. The paper points out gaps in current literature, such as the fragmented nature of legal solutions and the inadequate role of international organisations in regulating medical tourism. The paper critiques international bodies like the WHO, WTO, and WMA for their non-binding nature and lack of enforcement power. In response, it proposes the creation of a new regulatory body, the International Medical Tourism Organisation (IMTO), governed by an International Medical Tourism Treaty (IMT Treaty). This treaty would set standard regulations for medical facilities, including accreditation, patient protection, and mandatory insurance, with mechanisms for handling claims and resolving disputes. The paper also discusses the negative impacts of medical tourism on local healthcare systems, such as resource diversion, price inflation, and the loss of medical professionals. It also considers the potential challenge of foreign investors using Investor-State Dispute Settlement (ISDS) mechanisms to undermine national healthcare regulations. Ultimately, the paper argues that the current legal framework is insufficient and calls for a new, globally recognised regulatory system to ensure safer, more ethical, and equitable medical tourism practices.
South Africa’s space odyssey : to the moon and beyond
(University of Pretoria, 2024-12-07) Hobe, Stephan; u16051310@tuks.co.za; Mamafha, Phindulo Maureen
The concept of outer space exploration has always been perceived as an abstract idea explored through sci-fi movies and comics. Over the years, this abstract idea seems to have developed into reality. With the emergence of new research by the National Aeronautics and Space Administration (NASA) and the recent technological advancement by aerospace companies such as SpaceX, Blue Origin, and Virgin Galactic, not only has outer space exploration become topical, but it has also sparked different views within the legal fraternity. Since the first Outer Space Treaty was signed in 1967, outer space research has advanced tremendously through outer space exploration. As worldwide research uncovers the benefits of outer space exploration and technology, it is imperative that the regulations of the outer space exploration industry be updated to regulate these new possibilities. As the spacefaring nations develop their policies to allow for current and future possibilities such as asteroid mining, it may seem as though African states such as South Africa have been left behind. Not only has the involvement of African states in outer space exploration become critical to fostering economic development, but it has also presented the opportunity for African states to contribute strategically to global legal and economic debates. This begs the question of the involvement of African states in space exploration activities, particularly South Africa, which is one of the leading economies on the continent. What legislation is South Africa developing to gain investor security and to encourage space exploration activities? What can South Africa learn from other countries that have been leading research in the aerospace industry, such as the USA, Russia and China? What value can be extracted from the collaboration of African countries through the African Union? Lastly, what socio-economic issues may be solved by space exploration and the possibility of space mining? With these key questions in mind, this study seeks to investigate the development of policies by South Africa that conform to international law. It investigates how South Africa may improve its policies to take full advantage of the freedoms granted in Article I of the Outer Space Treaty, and the socio-economic issues that may be solved by space exploration and the possibility of space mining.
Maritime boundary delimitation in Africa : developing a normative and institutional approach for the African Union Border Programme to manage maritime boundary delimitations
(University of Pretoria, 2024-03-29) Tladi, Dire; u28346302@tuks.co.za; Ntola, Siqhamo Yamkela
Jurisdictional certainty in Africa’s ocean spaces, as indicated in the 2050 Africa’s Integrated Maritime Strategy (AIMS), is essential if the continent’s oceans economy is to make a meaningful contribution towards socio-economic development. Indeed, the AIMS directs the Africa Union (AU), through its Border Programme (‘the AUBP’) to ‘make an assertive call to peacefully solve existing maritime boundary issues between Member States […]’ in accordance with the 1982 United Nations Convention on the Law of the Sea (LOSC). The AU Strategy for Better Integrated Border Governance (AU-BIBG) is the AUBP’s strategy for, among other things, resolving boundary issues in Africa. Contributory to the Strategy’s efficacy in this regard is the development of a model by the AUBP from which AU Member States can draw. The basis for inviting the AUBP to develop such a model is because AU Member States, as part of the Strategy’s rollout, are encouraged to develop a comprehensive national Border Governance Policy inclusive of normative, institutional, collaborative and financial frameworks with strategic partnership and communication components that take AU and [Regional Economic Communities (RECs)] policies and legislative blueprint documents [into] account. In a normative and institutional sense, the aim of this study has been to develop, within the continent’s regional and subregional legal infrastructure, approaches to aid the management of maritime boundary delimitations involving AU coastal Member States for the AUBP. Such development represents, in part, the model envisaged by the AU-BIBG from which AU coastal Member States can draw for delimiting their maritime boundaries and/or resolving disputes concerning delimitation, should they arise. Included in the study are discussions on ‘mixed disputes’, which are maritime boundaries that are undelimited owing to an undelimited land boundary or territorial sovereignty dispute over a coastal terrestrial territory. Achieving this study’s objective hinged on developing a normative framework for analysis and applying it to Africa’s factual and legal context. Four undertakings were thus integral in this regard. The first is an understanding of the circumstances and/or issues affecting the lack of delimited maritime boundaries among or involving AU coastal Member States, which is undertaken in chapter two. In this chapter, delimitations are classified in aid of developing the normative and institutional approach. Key findings in this chapter are that: (i) Africa’s colonial past complicates maritime boundary delimitations as past colonial practices have to be interpreted and considered in effecting delimitation; and (ii) a lack of or insufficient diplomatic relations, which speaks to negotiating delimiting boundaries, inhibit the prospect of delimitation. The second undertaking involved developing a normative framework for analysis by achieving two objectives. First, by isolating the AUBP’s mandate and challenges regarding boundary delimitation. This involved discussions on: (i) the AUBP’s fundamental and implementation principles and their relationship with general international law, as well as the AUBP’s objective; and (ii) the legal substance of the outlined principles together with the legal provisions enabling the AUBP to achieve its objective on the continent. The second objective was to shed light on the extent to which Africa’s legal environment impacts on maritime boundary delimitation on the continent. This is done in order to reveal the available legal avenues useful for executing the AUBP’s mandate. Originating from these discussions is that Africa’s regional and subregional legal environment is generally inadequate for addressing delimitations. In varying degrees however, RECs such as the Economic Community of Central African States (ECCAS), the Economic Community of West African States (ECOWAS), and the Southern Africa Development Community (SADC) have viable legal avenues that can be leaned on to execute the AUBP’s mandate for their Member States, which comprise a majority of AU coastal Member States. Informed by the mandate, its implementing challenges and Africa’s legal environment, a three-tiered normative framework is developed and used to analyse the extent to which the AUBP’s mandate in Africa’s legal environment can be executed in light of the LOSC’s provisions concerning maritime boundary delimitation. The third undertaking pertained to understanding the extent to which the LOSC and other tools of international law (such as advisory opinions sought from the International Court of Justice in terms of article 65 of the Court’s Statute) are useful for the mandate’s execution and implementation, which is undertaken in chapters four and five with regard to non-judicial and judicial methods to affect boundary delimitation, respectively. Herein, two of the three tiers of the normative framework for analysis are engaged. Notable findings are that the AUBP’s mandate can be executed at a regional (AU Commission) and subregional level (ECCAS, ECOWAS, SADC) for non-judicial and judicial settlement for delimitations. Assistance in terms of the mandate concerning the non-judicial methods includes facilitating negotiations, which include negotiations for a provisional arrangement of a practical nature over undelimited ocean spaces whilst a delimitation agreement is pending. Where disputes are mixed, assistance in terms of the AUBP mandate may be granted where the land component of the dispute pertains to the location of a land boundary. On judicial settlements, it is noted that the AUBP’s mandate extends to the method where a third-party has jurisdiction to adjudicate over the submitted dispute. States using third-party procedures provided for in section 1, Part XV of the LOSC, do so when there are general, regional and bilateral agreements to this effect in accordance with article 282. On compulsory procedures entailing binding decisions, the AU Commission as well as RECs like the ECCAS, ECOWAS and SADC are viable avenues through which Member States may obtain assistance pursuant to the AUBP mandate. This assistance extends to those States who may submit a dispute to compulsory non-binding conciliation owing to one of them having raised an exception regarding delimitation, historic bays or titles in terms of article 298(1)(a)(i) of the LOSC. In the fourth undertaking, which reflects the normative framework’s third tier, recommendations for a normative and institutional approach for non-judicial and judicial methods for maritime boundary delimitation are advanced. The recommendations are advanced to aid the AUBP in managing delimitations involving AU coastal Member States. Relying on articles 3(2)(h) of the Statutes of the Commission of the AU, articles 7(b) and (c) read together with article 12(c) of the 2019 Protocol Amending the 2008 Protocol on Relations between the AU and RECs AU-REC Protocol, the recommendations show how the AUBP mandate can be executed in the current regional and subregional legal environment.
Enforcement of victims’ right to reparation for violation of International humanitarian law by peacekeepers
(University of Pretoria, 2024-10) Dyani-Mhango, Ntombizozuko; Bradley, Martha; nnamdiumenze@gmail.com; Umenze, Nnamdi S.S.
This study explores the scope of the duty to provide reparations, the individual victims' right to reparation and the process to obtain or enforce reparations for misconduct committed by peacekeepers, which constitutes a violation of international law, particularly international humanitarian law. The study is motivated by the increasing reports against peacekeepers for the crimes they commit in their host countries. The achievements and the challenges of peacekeepers are well documented in the literature. However, in several peacekeeping missions, peacekeepers have been reported to have committed such misconduct as murder, torture and sexual exploitation and abuse, particularly rape against vulnerable civilians they are mandated to protect in their host countries. Thus, such misconduct as murder, torture, and sexual exploitation and abuse committed by peacekeepers not only constitute a violation of the prohibited conduct under international humanitarian law but also a violation of the protected rights of the individuals under international human rights law. Under international law, while the international organisations and the states variously bear the responsibility to provide reparations for internationally wrongful acts attributed to them, the victims of such internationally wrongful acts are entitled to reparations for the injury suffered as a right recognised under international law. However, given the nature of peacekeeping operations, requiring collaborations between the United Nations and the member states, there is always an issue in determining the entity to which the conduct of peacekeepers and the responsibility to provide reparations for victims of the misconduct committed by peacekeepers is attributed between the United Nations and the troop-contributing states. Furthermore, in the instances where the conduct of peacekeepers and the responsibility to provide reparations is attributable to the United Nations, the individual victims are faced with another challenge of legal incapacitation to bring legal action against the United Nations to enforce their right to reparations. The individual victims’ challenge in enforcing their right to reparation against the United Nations is in two folds. First, the legal system of the United Nations does not allow individual action against the Organisation. Second, the United Nations enjoys immunity in the legal jurisdiction of the state courts and the regional judicial tribunals. The study examines the relevant provisions of international law to establish the obligation of the state and international organisations to provide reparations for international humanitarian law violations committed by peacekeepers. It also examines the scope of individual victims’ right to reparation for injuries arising from such violations committed by peacekeepers. Given that the legal system of the United Nations precludes individual victims from bringing legal claims to enforce their right to reparation against the Organisation, the study further examines the adequacy of the mechanisms adopted by the United Nations to settle peacekeeping-related third-party claims. The study concludes that the inability of the victims of the internationally wrongful act committed by peacekeepers to enforce their right to reparation against the responsible state or the United Nations through judicial means owing inter alia, to the immunity of the United Nations amounts to a denial of access to justice and frustration of their right to reparations. It notes that the current mechanism adopted by the United Nations to settle peacekeeping-related third-party reparation claims against the Organisation is inefficient and recommends a model mechanism to improve efficiency in the United Nations peacekeeping-related third-party reparation claims procedure.
Adequacy and comprehensiveness of Zimbabwe’s Laws in combating child labour trafficking
(University of Pretoria, 2024-10-23) Lasseko-Phooko, Matilda; Asaala, Evelyne; zoronkomo@gmail.com; Nkomo, Zororai
The ushering in of the new constitutional dispensation in 2013 heralded the dawn of a new epoch in the reinvigoration of the impetus to fight human trafficking in Zimbabwe by trying to domesticate the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the Palermo Protocol) through the enactment of the Trafficking in Persons Act of 2014. The ideological underpinning behind the enactment of the TIP Act was to comprehensively combat human trafficking through the implementation and domestication of the international legal instrument to combat trafficking – the Palermo Protocol – which Zimbabwe is a state party. This research examines the adequacy and comprehensiveness of the TIP Act in combating child labour trafficking. It seeks to explore the scope, magnitude, forms, and causes of child labour trafficking. The research focuses on the principal international legal instrument meant to combat child labour trafficking, the Palermo Protocol, in a bid to find the legal solution to child labour trafficking in Zimbabwe. The research will draw inspiration from best practices from South Africa and Kenya on how to craft adequate and comprehensive legislation to combat child labour trafficking which is congruent to the Palermo Protocol. The study will contextualise child labour trafficking to the exigencies facing Zimbabwe while drawing inspiration from the two mentioned jurisdictions of Kenya and South Africa.
The contemporary complexities affecting the assessment of the legal criterion of a non - international armed conflict under International Humanitarian Law
(University of Pretoria, 2024-09-01) Bradley, Martha; ayodele_ojedokun@yahoo.com; Ojedokun, Ayodele Olubunmi
This thesis analyzed the existing laws relating to non-international armed conflict, namely Common Article 3 and Additional Protocol II, to address the complex nature of contemporary armed conflict which often challenges the traditional framework of assessing the existence of a non-international armed conflict. Two major challenges were considered in this thesis. The challenge affecting the first benchmark test of a non-international armed conflict relates to the assessment of the organization of armed groups in coalitions to qualify such alliance as one party to a conflict. The second test challenge addressed the impediment caused by a coalition of armed groups in assessing the intensity of a conflict. The challenges of multiple armed groups fighting collectively or independently against a common entity, be it a state or another armed group, renders the bi–lateral assessment of intensity inappropriate and makes it impossible to determine the ‘protracted armed violence’ and ‘sustained and concerted military operations’ threshold required to create a non-international armed conflict. In response to this operational assessment challenge, the question of whether the Tadic definition and its threshold criteria are fit for purpose to classify complex non-international armed conflicts was examined.
Head of state immunity under the Malabo protocol : triumph of impunity over accountability?
(University of Pretoria, 2019) Tladi, Dire; kobbydaniel@yahoo.com; Daniel, Kobina Egyir
At the 23rd Ordinary Session of the African Union’s Assembly of Heads of State and Government held in Malabo, Equatorial Guinea in June 2014, the Assembly adopted, amongst others, the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol). The Protocol would, amongst others, reform the proposed African Court of Justice and Human Rights (which was to be achieved by merger of the African Court of Justice and the African Court of Human Rights) by creating an International Criminal Section. The Protocol also confers on “serving AU Heads of State or Government, or anybody acting or entitled to act in such capacity” immunity from prosecution during incumbency. Predictably, the immunity provision has spawned widespread and trenchant criticism from international criminal justice advocates who claim that the AU seeks thereby to create a culture of and perpetuate impunity. The AU on the other hand asserts not only that it is standing up for itself against neo-colonialist imperialist forces who have perverted international criminal justice and seek subjugation of African States through the International Criminal Court (ICC), but also that it is a champion for the very soul of customary international law on immunities. What this dissertation sets out to do and has sought to achieve has been to undertake a doctrinal study to determine whether the immunity that Article 46A bis of the Malabo Protocol confers on “Heads of State or Government, or anybody acting or entitled to act in such capacity” coheres with international law – lex lata – or represents a retrogression in international law norms that seek to prevent impunity for international crimes. In assessing the oft-made claim about the AU seeking or cultivating impunity thereby, the study has endeavoured to go beyond the self-serving rhetoric of each party in the hero-villain contestation that has characterized AU-ICC engagement over the past several years. It has sought to determine the veracity on the one hand of the claim that the Malabo Protocol’s immunity provision represents an illegal roll-back by the AU of normative gains in international criminal law to ensure accountability for egregious violations of human rights law. It has also sought to determine the legitimacy of the AU’s claims, on the other hand, that Africa has been unfairly targeted by the ICC, that there is no substance to the accusation that it seeks impunity for the category of officials covered by the immunity provision and that its insistence on immunity is but a reflection of its fealty to current international law. Through a review of legal history, case law from national and international tribunals, state practice and academic expositions, this thesis examines the evolution and practice of Head of State immunity as well as recent trends in the practice of the doctrine in light of the countervailing push to establish exceptions to immunity in order to ensure accountability under international human rights and international criminal law. In order to come to conclusions that answer the titular question, this thesis also interrogates the status-inspired dialectics and self-serving hero-villain polemics and consequent actions that fuel contestations of right between the AU and the ICC as well as the worldviews that respectively seek to preserve and overturn the asymmetry of the international legal order. The thesis finds that notwithstanding the lure of the values-laden-normative-hierarchy-inspired push against impunity, values do not international-law make. On the evidence, the immunity clause and undergirding rationale represent neither an illegal rollback by the AU of accountability standards for international crimes nor an altruistic bid by the AU to champion international criminal justice on the continent. The answer to the titular question of this dissertation therefore lies in shades of grey and somewhere in the middle of the respectively indignant and self-righteous stances of the AU and the ICC.
Making a case for the establishment of specialised environmental courts in South Africa
(University of Pretoria, 2024-07-31) Feris, Loretta; bimbola25@gmail.com; Olowa, Abimbola
This thesis considered the benefits of establishing specialised environmental courts in South Africa. The thesis analysed the functioning of four existing specialised courts in South Africa – the Labour Court, the Land Claims Court, the Sexual Offences Court, and the Specialised Commercial Crimes Court and also undertook a comparative analysis of two specialised environmental courts in New South Wales and Kenya to extrapolate useful attributes and best practices that can be adopted in the proposed specialised environmental court in South Africa. Two court models were established as being suitable for South Africa. Recommendations were made for the rollout of the most feasible court model on a pilot basis in Gauteng. Recommendations were further made for new legislation and legislative amendments to current legislation required to establish the two models.
The significance of the Yamoussoukro Decision in the recovery of the civil aviation market in Africa post the COVID-19 pandemic : a consideration of the meaningful impact of the African airspace
(University of Pretoria, 2023-10) Hobe, Stephan; itumeleng.mogashoa@gmail.com; Mogashoa, Itumeleng
The Yamoussoukro Decision is an air transport framework agreement adopted by 54 African states in 1999 with one of its objectives being the achievement of the gradual yet full liberalisation of scheduled and non-scheduled air transport services on the African continent. The Yamoussoukro Decision was however not borne singularly from the Assembly of Heads of State that took place in Lomé, Togo from 10 until 12 July 2000. Prior to the adoption of the Yamoussoukro Decision, the Organisation of African Unity (OAU), which is the current day African Union (AU), under the auspices of the Economic Commission for Africa of the United Nations Economic and Social Council (UNECA), adopted the Declaration of Yamoussoukro on A New African Air Transport Policy, (Yamoussoukro Declaration) in 1988 which are a set of measures designed to enable signatories thereto to exchange air traffic rights in a liberal manner, address the issue of under-development in the African air transport market and to achieve the integration of African airlines. These were collective measures that were taken to respond to and counter the socio-economic challenges faced by the continent, to be achieved through, at that particular juncture, the integration of African airlines within a period of eight years. This was the beginning of an attempt to liberalise the African airspace, albeit not explicitly expressed as such in the policy document. An expanded policy framework known as the Single African Air Transport Market (SAATM) was launched in Ethiopia as part of the continued efforts by the AU to expedite the liberalisation of the African continent air transportation market. These policy instruments remain critical for the recovery of the African air transportation market from the COVID-19 pandemic.
The appropriateness of child support grants in advancing the socio-economic rights of children in South Africa
(University of Pretoria, 2024-02) Pillay, Rani; ramothwala.attorneys@gmail.com; Ramothwala, Mpho Olivia
This study investigates the appropriateness of Child Support Grants (CSGs) in advancing the socio-economic rights of children in South Africa (SA), as guaranteed in sections 27 and 28 of the Constitution of the Republic of SA, 1996 (‘Constitution’). Having regard to the Constitution, the Children’s Act 38 of 2005, the South African Social Security Agency Act 9 of 2004, the Social Assistance Act 13 of 2004 and other primary sources, the study establishes the nature and extent of children’s socio-economic entitlements. The study investigates the evolution of CSGs, together with the need, purpose and adequacy of CSGs. In relation to the latter, the study unpacks the requirements and criteria to access, and qualify for, CSGs before, and after, the promulgation of the Regulations Relating to the Application for, and Payment of Social Assistance and the Requirements or Conditions in Respect of Eligibility for Social Assistance, which came into effect on 31 May 2022 (‘2022 Regulations’). The study enquires into whether the current means-tested system of CSG is promoting, protecting, respecting and fulfilling the best interests of children in SA. As a related enquiry, the study investigates the extent to which children’s constitutionally guaranteed socio economic rights, together with their right to dignity, is protected within the current social security regulatory system involving CSGs. In particular, the study investigates the current state of poverty and inequality in SA, and evaluates the effectiveness of CSGs in alleviating poverty and reducing inequality. In addition to constitutional and statutory provisions, the study analyses case law, empirical evidence collated by other scholars and recent statistics reports to resolve the research problem identified. It compiles findings and recommendations that will assist the state, specifically the South African Social Security Agency (SASSA) and the Department of Social Development (DSD), together with other stakeholders to ensure the effective use of CSGs to improve the living conditions of impoverished children through good governance, with better checks and balances

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