Doctoral Degrees (Public Law)

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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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    Resocialisation as an obligation, right and remedy under international and African regional human rights law in the fulfilment of African women's rights
    (Stellenbosch : Stellenbosch University, 2023-12) Mahmoudi, Anisa; Rudman, Annika; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT : Women have been considered inferior to men in all aspects of life for centuries. Such relegation has manifested in discriminatory practices, ultimately impacting women’s autonomy and freedom to choose what serves them best. In viewing women as sub-human, society has come to associate certain norms and practices as falling exclusively within the domain of men while creating a discourse that views women as incapable of and prohibited from participating in such domains. The perpetuated narrative of women as lesser than men, based on stereotypes, assumptions, biases, and other socio-cultural norms and practices, will continue to dominate societal discourse, to the detriment of women, unless a meaningful shift in societal conceptions of women occurs. Resocialisation as an obligation, right and remedy finds legitimacy in international and African regional law, instilling the necessity of modifying the underlying determinants of gender inequality. While progressive laws protecting the rights and freedoms of women exist, their utility will always remain subject to the biases, assumptions, and other limitations of those bound to uphold such rights. Similarly, the discrimination women experience at the hands of ordinary individuals in society will remain because of the normalised nature of such socio-cultural assumptions and behaviours, limiting women’s access to domains long deemed male-only. The realisation of substantive and transformative gender equality remains contingent upon adequately implementing resocialisation across society. At the international law level, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides a solid benchmark to analyse resocialisation on an African regional level. Moreover, African women benefit from progressive laws on the continent, providing extensive protections. Indeed, the African regional system’s legislative framework is such that it holds significant potential to spearhead resocialisation in its interpretation and application in practice amongst its regional counterparts and beyond. This research analyses resocialisation on the continent compared to resocialisation on the international level. In doing so, it looks at how the Committee on the Elimination of Discrimination against Women (CEDAW Committee) interprets and applies resocialisation at the international level and compares it to the interpretation and application at the African regional level. The African Charter on Human and Peoples’ Rights (African Charter) provides the benchmark for resocialisation on the continent, with the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) embedding resocialisation on the continent with several of its provisions. The manner in which states and the African Commission engage with resocialisation on the continent provides glimpses into the extent to which resocialisation plays a role on the continent and the seriousness afforded to its implementation. In analysing the state reports and Concluding Observations as well as decisions of the courts, it becomes clear that an adequate understanding and application of resocialisation on the continent is lacking and in need of enhancement. Notwithstanding the recognised challenges that come with the implementation of resocialisation, the law mandates states to modify the underlying socio-cultural norms underpinning discrimination. The triple approach to resocialisation – as an obligation, right and remedy – ensures that modification is not viewed singularly as an obligation on states but as a right owed to women and a remedy available where cases of the violation of rights are heard.
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    An analysis of the regulation of defence procurement in South Africa
    (Stellenbosch : Stellenbosch University, 2023-12) Heydenrych, Ernst; Quinot, Geo; Nel, Michelle; Nel, Michelle (Military lawyer); Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT : There is considerable scholarly work within the context of civil public procurement in South Africa. Currently, public procurement in South Africa also finds itself within a changing regulatory environment considering the replacement of the 2017 Preferential Procurement Regulations with the 2022 Preferential Procurement Regulations in January 2023, as well as the Public Procurement Bill, tabled in Parliament in June 2023. However, a major gap in local literature on public procurement is in the area of defence procurement. This is concerning because of the large defence budget and generally opaque nature of the defence sector. In this regard, the transparency requirement of section 217 of the Constitution of the Republic of South Africa, 1996 stands out and it is vital to interrogate defence procurement in terms of South African public procurement law. The challenges in South African defence procurement are well-known – from the Arms Deal in 1999 through to the procurement of the immune booster Interferon from Cuba in 2020 – thus showing a need for close attention to defence procurement regulation. Accordingly, this dissertation investigates what role the requirement of transparency fulfils within the regulation of defence procurement in South Africa. Will national security and secrecy always prevail, or will there be instances where transparency trumps secrecy? The study starts by carefully explaining the difference between the civilian and military working environments, the impact of military discipline, hierarchies and lines of command and control, as well as certain unique features such as the roles fulfilled by the Minister of Defence and Military Veterans, Secretary for Defence, Chief of Logistics (“C Log”) and Chief of the South African National Defence Force. The study then defines defence procurement, sets out its two categories (category 1 acquisition and category 2 procurement/supply chain management), and compares ordinary South African public procurement with the Department of Defence’s acquisition and supply chain processes. The study also places focus on the role of Armscor, the acquisition agency of the DoD, and the role it plays in conjunction with the Defence Matériel Division within the context of acquisition or category 1 procurement. Hereafter, the study analyses the defence procurement system by identifying seven widely encountered trends or challenges through method triangulation, sets out the Department of Defence’s approach to consequence management and transparency and evaluates the system’s compliance with the requirement of transparency in section 217(1) of the Constitution. Finally, based on this evaluation, the study discusses the concept of civil-military relations and the oversight role fulfilled by, among others, Parliament, the Military Ombud, the Defence Inspectorate and the Auditor-General of South Africa with regard to their ability to extract accountability in respect of procurement by the DoD in terms of both answerability and sanction as constitutive elements of accountability. The study concludes with several findings and recommendations for reform of South African defence procurement regulation, especially within the context of transparency.
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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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    Sustainable development for rural women artisanal miners in Malawi : obligations under the African Charter and Maputo Protocol
    (Stellenbosch : Stellenbosch University, 2022-12) Mkali, Theodora Talumba; Rudman, Annika; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: This research examines the rights of rural women artisanal miners in the artisanal and small-scale mining sector in Malawi. This mining sector is affected by the regulation of this subsector through the Mines and Minerals Act and the National Artisanal and Small-scale Mining Policy (ASM Policy). It thus formulates a matrix of rights to establish whether or not the law and policy framework on ASM in Malawi adequately ‘protect, promote and fulfil’ the rights of RWAMs. In addition, this research also analyses the Africa Mining Vision, the flagship regional policy framework, to assess how states have adopted the matrix of rights to give effect to RWAMs’ rights commitments. In the first instance, the research provides for the Feminist Legal Theory (FLT) methodology, which refers to feminist legal methods and African feminist views to justify the need to address the realities of RWAMs in ASM. In addition, the research expands on the two main organising principles, formalisation and sustainable development, by adopting a feminist lens. Thus, in answering the main research question, the research clarifies how categorising women as a homogenous group shapes the law and policy actions to exclude those with intersecting identities, such as RWAMs. This research also presents the context of ASM in Malawi given RWAMs participation and involvement in this subsector. In addition, this research provides an overview of Malawi’s legal and policy framework, particularly in gender and development. Specifically, this research analyses the standpoint of Malawi’s law and policy framework on mining given RWAMs rights. Finally, this research has conclusions and recommendations. It elaborates on the key findings of each chapter, provides recommendations and insists on future research. The recommendations made in this research dwell on the practical aspects Malawi must implement given the matrix of rights for the benefit of RWAMs.