Doctoral Degrees (Public Law)

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Browsing Doctoral Degrees (Public Law) by browse.metadata.advisor "Botha, Henk"

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    Constitutionalising copyright : a principled normative theory for transformative copyright adjudication
    (Stellenbosch : Stellenbosch University, 2023-03) Shay, Richard Michael; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: This dissertation investigates South African copyright law from a constitutional vantage point, specifically the role of adjudicators in effecting transformation of this realm of statutory law. Copyright law in South Africa long predates the advent of the Constitution of the Republic of South Africa, 1996, and the Copyright Act 98 of 1978 has seen sparse revision since its initial promulgation. While the constitutional mode of adjudication requires substantive reasoning and value-based interpretation to facilitate the transformation of all law under the single-system-of-law principle, this modality has yet to permeate the copyright context. The formalistic mode of reasoning employed in copyright adjudication arguably perpetuates an independent normative sphere in which property and trade looms large, accompanied by an array of interpretive canons and conventions that are a product of the erstwhile conservative legal culture that characterised South African legal interpretation prior to the constitutional era. Ronald Dworkin’s theory of Law as Integrity is discussed as a candidate reading strategy for courts engaged in transformative interpretation of South African law. Dworkin’s interpretive model of constructive interpretation is found compatible with the constitutional mandate to adopt a value-based strategy intent on “promot[ing] the spirit, purport and object of the Bill of Rights, as section 39(2) instructs. Furthermore, Dworkin’s dignity-based theory comports with the South African iterations of the fundamental triumvirate of “[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms”, entrenched in section 1(a) and reinforced by section 39(1). Likewise, the Constitutional Court jurisprudence on the question of direct horizontal application of the rights in the Bill of Rights could be read to suggest that Dworkin’s normative approach may assist in defining the scope and ambit of duties between private parties, notably when the legal relationship is mediated by copyright law. Dworkin’s view of law as fidelity to the mandate of dignity through interpretation is ported to the copyright setting by relying on the taxonomical theory of intellectual property propounded by Robert Merges, comprising the trichotomy of justificatory foundations, midlevel principles, and practical doctrine. These concepts are reformulated to reflect a normatively responsive, principled account of adjudication in the South African situation.
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    The courts, national security and the free flow of information
    (Stellenbosch : Stellenbosch University, 2020-03) Ramages, Justin Ray; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: National Security and the free flow of information are both vital to the preservation of South Africa’s open democracy. However, the two are often in tension, as the protection of National Security requires secrecy. This places it at odds with the rights to access, receive and impart information. In adjudicating this tension, the courts are hampered by the lack of a clear definition of National Security. The imprecision of this term could result in state abuse, or in leaving important security interests unprotected. Against this background, the thesis examines the constitutional rights to access, receive and impart information in view of the values that underlie them. It also explores the meaning of National Security with reference to legislation, case law, academic literature, and international and comparative law. On the basis of this study, it proposes a definition of National Security, which identifies the security interests that are to be preserved and the kinds of threats against which they must be safeguarded. Next, the thesis examines the tension between openness and secrecy within the judicial process in cases involving conflicts between the free flow of information and National Security. To that end, it considers the requirements of the constitutional principle of Open Justice with reference to case law. It examines legislative provisions which limit Open Justice in cases in which the disclosure of sensitive information in open court could compromise South Africa’s National Security, analyses the constitutionality of those measures, and proposes legislative amendments which would remedy the constitutional defects. Finally, the thesis examines the capacity of the judiciary to adjudicate, in a principled manner, conflicts between the free flow of information and National Security, in view of debates about courts’ institutional capacity and the perceived need for judicial deference in areas in which the executive, and not the judiciary, has special expertise. It also asks whether the procedures used to adjudicate conflicts between the free flow of information and National Security enable courts to decide these cases in a principled manner, and to avoid overstepping the bounds of the judicial function.
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    Inconvenient identities : the recognition of a non-binary gender in view of the constitutional values of human dignity, equality and freedom
    (Stellenbosch : Stellenbosch University, 2024-03) Barnes, Johndré; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: Central to this study is the need to recognise the right to be different. The Constitution of the Republic of South Africa, 1996 (“Constitution”) affirms the democratic values of human dignity, equality and freedom. It further strives towards a transformative and egalitarian society wherein diversity and plurality are valued, and entitles everyone to respect for and protection of their rights to human dignity, equality and freedom. However, in certain circumstances, the actualisation, interpretation and application of these rights and values demonstrate a troubling trend, especially concerning claims that represent a challenge to the conventional structures, (hetero)normative standards and presumptions that are deeply embedded in society. The South African legal framework incorporates a binary system that presumes that all persons are born as either female or male. The formal assignment of gender and sex on an individual’s identification documents can affect their whole life. It functions as a mandatory element of an individual’s legal status and identity since legal frameworks – in terms of both private and public law, as well as domestic and international law – require gendered subjects. Against this backdrop, the primary objective of this study is to establish whether and to what extent the constitutional rights and values of human dignity, equality and freedom require the legal recognition of a non-binary gender. To this end, a substantial part of the study entails a critical analysis of the constitutional rights and values of human dignity, equality, and freedom. The study engages with the relevant constitutional provisions, legislation, case law and academic literature and uses queer theory to analyse and critique legislative and judicial responses to the Constitution’s call for inclusion, mutual respect and recognition of diversity. The study further uses queer theory to contextualise and frame the need for a more generous and transformative interpretation of these rights and values and to imagine a society where individuals are not required to fit within strict binaries, and where the humanity and dignity of individuals are not conditioned on their ability to conform and assimilate to rigid categories. It argues that such a reading can provide the basis for a responsive framework that: (i) recognises the diversity of individuals worthy of respect and protection (dignity), (ii) is suspicious of approaches which celebrate and uphold conventional forms of being while disciplining or containing attempts to move beyond such conceptions (freedom), and (iii) resists attempts to make the norms of heteronormativity into the standards by which queer or diverse identities should be measured (equality).
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    The justifications and limits of affirmative action : a jurisprudential and legal critique
    (Stellenbosch : Stellenbosch University, 2011-12) Nel, Erin Leigh; Botha, Henk; Dupper, O.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: Affirmative action with its wide array of manifestations, ranging from BEE (Black Economic Empowerment) to special measures within the Public Procurement sector, was intended to aid South Africa in redressing past patterns of disadvantage and realising a more equal society and economic dispensation. Whether the present policy has achieved this goal or is capable of doing so has been the subject of much controversy. The aim of my thesis is to rethink the justifications and limits of the current race-based affirmative action policy of South Africa in view of current debates, in which both its potential as a tool for eradicating inequality at the individual and systemic levels and the constitutionality and viability of different policy options are contested. In my thesis, a range of conceptual and theoretical tools are employed which are not only derived from the constitutional law literature, but also from jurisprudence, moral philosophy and political theory. Compensatory and distributive theories of justice are analysed and juxtaposed to each other, as are substantive and remedial conceptions of constitutional equality and recognition-based and redistributive notions of politics. Throughout, my focus is on the perspectives that these theories can bring to bear on the justifications and limits of affirmative action. It is also asked whether a re-crafted affirmative action policy would not be better able to reach the intended goals. With this end in mind, alternative affirmative action policies are analysed, namely, a class-based affirmative action policy which uses socio-economic standing as a measure for identifying beneficiaries and an affirmative action policy based on Sen‘s capability approach. The thesis also contains a comparative analysis of the affirmative action policies of Malaysia, Brazil and India. The aim of this study is to ascertain whether there are any valuable lessons to be learnt from their respective successes and failures. It is argued that affirmative action as currently applied has an assortment of negative consequences, ranging from stigmatization of beneficiaries as incapable individuals, the perpetuation of racial division and a detrimental impact on the South African economy as a result of a loss in efficiency. These issues could possibly be better addressed if the specific beneficiaries of affirmative action are rethought. In this regard, it is suggested that, if a class-based affirmative action policy is thought to be too radical, South Africa should follow India‘s example of excluding the ―creamy layer‖ from the current affirmative action beneficiaries. This should ensure that affirmative action benefits are not continually distributed and redistributed to the same individuals, whilst also ensuring that a wider range of individuals do in fact benefit. However, it must be borne in mind that transformation will always be stifled if educational resources and policies do not keep up with social and political policies.
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    Refugees’ access to socio-sconomic rights: Favourable treatment for the protection of human dignity
    (Stellenbosch : Stellenbosch University, 2018-12) Kavuro, Callixte; Botha, Henk; Stellenbosch University. Faculty of Law. Department of Public Law.
    ENGLISH ABSTRACT: The thesis deals with the question whether and to what extent refugees and asylumseekers are entitled to socio-economic rights and benefits. This is a controversial question, which is complicated by the co-existence of different bodies of law which apply to the treatment of non-citizens, in general, and refugees and asylum-seekers, in particular. On the one hand, South Africa has acceded to international refugee treaties and incorporated these treaties into its legal system through the Refugees Act 130 of 1998 (as amended) (―Refugees Act‖). This Act provides that refugees are entitled to all rights in the Bill of Rights, except those rights that are expressly reserved for citizens. Sections 26 and 27 of the Constitution of the Republic of South Africa, 1996 provide that ―everyone‖ has the right of access to adequate housing, and access to health care services, sufficient food and water, and social security. This seems to indicate that refugees and asylum-seekers are entitled to the socioeconomic rights enshrined in the Constitution. The Refugees Act, read through the lens of these constitutional provisions, signals South Africa‘s intention to offer effective protection to refugees and asylum-seekers, to respond to their suffering and to restore their self-reliance, participation, and agency. It does so, inter alia, by extending to them the right to have access to subsidised socio-economic goods and services. On the other hand, refugees and asylum-seekers are, in practice, excluded from certain socio-economic rights. This exclusion stems from a number of factors. First, they are treated as temporary residents in terms of the Immigration Act 13 of 2002. For this reason, the twin principles of self-sufficiency and exclusivity are often applied to them. In terms of these principles, non-citizens are generally admitted into South Africa on the condition that they are self-supportive and self-reliant. Moreover, they are precluded from accessing socio-economic programmes designed to support citizens who are vulnerable to poverty. Secondly, legislation conferring socioeconomic rights and benefits often restricts those rights to citizens and permanent residents. The legislation is thus not aligned with the Refugees Act. Thirdly, the Convention Relating to the Status of Refugees, 1951 (―the Geneva Refugee Convention‖) provides, in certain respects, for the same treatment of refugees as accorded to non-citizens in the same circumstances as refugees, or as accorded to non-citizens generally. Fourthly, the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 (―the African Refugee Convention‖) requires a host state to alleviate refugees‘ misery and suffering as well as to offer them opportunities to achieve a better life and future. The thesis criticises the idea that refugees and asylum-seekers are entitled to socio-economic rights on the basis of the standard of the same treatment accorded to non-citizens. This standard is problematic, in so far as there is no other group of non-citizens whose circumstances correspond to those of refugees and asylumseekers. Moreover, the standard legitimises the application of the twin principles of exclusivity and self-sufficiency, as contemplated by immigration law, to refugees and asylum-seekers. The thesis criticises the exclusionary approach on the basis of emerging theories, norms, standards and practices, as emanating from international refugee law, human rights law, constitutional law, domestic refugee law and foreign and international jurisprudence. It examines the vulnerability of refugees, and argues that the rights flowing from refugee status demand special and differentiated treatment from that accorded to non-citizens generally. The Refugees Act was specifically adopted to exempt refugees and asylum-seekers from the emphasis, in immigration law, on exclusion and self-reliance, and to afford them special, favourable or differentiated treatment to ensure the protection of their well-being, health and dignity. For that reason, refugee principles should be given priority over immigration principles. The thesis examines refugees and asylum-seekers‘ entitlement to socio-economic rights through the prism of the constitutional rights and values of human dignity and equality, and with reference to the standards of same treatment and favourable treatment, as used in the Geneva Refugee Convention . It argues, first, that the right and value of human dignity requires that all human beings should be in a position to live their lives in accordance with the ends that they freely chose, or as autonomous agents who have the ability to define their own destiny. No-one should be reduced to a mere object of state power, or be left without the resources needed to pursue reasonable choices or to meet their own needs. Given the unique position and vulnerability of refugees and asylum-seekers, the state is under both a negative obligation to desist from conduct that would interfere with the exercise of their rights, and a positive obligation to create conditions in which they can participate in economic and social life. Secondly, the thesis draws on the distinction between formal and substantive equality, and argues that the rights of refugees and asylum seekers should be read through the prism of substantive equality. This could help enable an approach which recognises their vulnerability, and affords them differentiated and favourable treatment. The thesis focuses on three rights: the right of access to public relief and assistance, healthcare and adequate housing. A detailed analysis is offered of the extent to which refugees and asylum-seekers are given these rights, or are excluded from their protection. The national laws granting and regulating these rights are examined, in view of refugee law, international human rights, the South African Constitution, and foreign law. To the extent that these laws exclude refugees and asylum-seekers from socio-economic rights and benefits, the thesis analyses the constitutionality of these exclusions. Recommendations are also made for the amendment of certain distributive laws, to harmonise them with the Constitution and the Refugees Act. These laws include the Housing Act 107 of 1997, the National Health Act 61 of 2003, the Social Assistance Act 13 of 2004, and related policies and strategies.