Browsing by Author "Kolabhai, Reshard Lee"
Now showing 1 - 1 of 1
Results Per Page
Sort Options
- ItemHuman rights obligations and South African companies : a transformative approach(Stellenbosch : Stellenbosch University, 2020-04) Kolabhai, Reshard Lee; Liebenberg, Sandra; Stevens, Richard; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: In response to colonialism, apartheid and contemporary ills, the Constitution of the Republic of South Africa, 1996 (“the Constitution”) builds its legitimacy on the fundamental restructuring of South African society in line with human rights. Human rights violations often involve companies and corporate structures in some form, such structures being central to South Africa’s political-economic history since 1652, and continuing to permeate modern South African life. The Constitution’s project of transformative constitutionalism extends to all legal and economic relations, including companies, but domestic corporate regulation does not yet exhibit any meaningful transformative change in favour of human rights. This thesis thus examines the implications of the South African Bill of Rights for companies and company law, using the lens of transformative constitutionalism. The current business and human rights law literature generally follows an atomistic conceptual approach to understanding companies, focusing on companies as individual entities capable of committing violations. Transformative constitutionalism, however, requires a critical and contextual systemic understanding of companies as part of a holistic political economic system. Such an approach implicates companies, company law, the wider economy and the State in an alternative transformative paradigm. As products of the law, companies and company law itself are fully subject to the Bill of Rights, the question rather being of how the Bill of Rights applies where they are concerned. Several constitutional provisions are implicated where companies and company law are involved, namely sections 7(2), 8, 39(2) and 239 of the Constitution. These constitutional mechanisms often overlap, and the jurisprudence on them is generally doctrinally unclear. Further, international business and human rights law also needs to be coherently integrated into the domestic system for it to be transformative. To address these concerns, this thesis proposes a transformative and systemic conceptual approach to companies, coupled with a rights-centric doctrinal approach. This gives rise to a simultaneous multicentric binding of the State, companies (and other business actors and structures), and law. This thesis outlines the possible contours of such a corporate regime, informed by international human rights law. Such reform requires not only a change in how the law and companies are conceived, but also a fundamental normative shift in favour of human rights foremost, with wide systemic interventions undertaken by the State.