Africa has always aspired for the economic integration of its markets. This endeavour is evident right from the 1960s clamour for independence and shortly thereafter, as newly independent states. During this period African countries under the umbrella of the OAU underscored economic cooperation as the basis for intra-African relations. However, it was not until the year 1991, with the conclusion of the AEC Treaty, that the continent formally adopted a framework and roadmap towards continental economic integration. The 40-year roadmap towards a continental economic community was premised upon the two principles of harmonisation and devolution. Moreover, the six-stage integration process set out in Article 6 of the AEC Treaty identifies the eight RECs in Africa as the building blocks for the continent’s proposed single market and economic union. It also underpinned the economic integration of the continent on the harmonious co-existence of the RECs. A step-wise ambitious integration model was adopted under Article 6 of the AEC Treaty. The model envisaged the creation of a Free Trade Area (FTA), followed by a Customs Union, a Common Market and ultimately a fully-fledged Economic Union. As a first step towards the continental integration, the African Continental Free Trade Area (AfCFTA) was unveiled in 2018. Cross border, intra-African trade, is bound to lead to a rise in investment and commercial transactions on the continent. This, in turn, will inevitably lead to disputes which require resolution. The economic integration of the continent is fast evolving under the aegis of the AU; whose dispute settlement system is currently also under review. Significantly, the AU has consolidated its dispute settlement mechanism, following the merger in 2008 of the ACJ and ACH&PR, into a single AU court, known as the African Court of Justice and Human Rights (ACJ&HR). It is within the context of the merged AU single court that this thesis grounds itself. It seeks to interrogate the adequacy of the continental trade and investment dispute settlement system and examines its viability within the consolidated AU dispute settlement system. While the AU led continental economic integration gains pace, the dispute settlement system, critical for the integration, is either lagging behind or is not receiving adequate attention. As a result, the dispute settlement systems created under the AEC and AfCFTA are incongruent with the principles of harmonisation and devolution, which underpin the continent’s economic integration goals. The recommendations proffered, align with the philosophy of harmonising and devolving the continental trade and investment dispute settlement system. The research proposes to locate the continental trade and investment dispute settlement within the AU single court system. The principal recommendation is not only to expand the Court’s jurisdiction in order to accommodate the trade and investment mandate, but also to use sub-regional REC judicial organs as courts of first instance for the ACJ&HR. A hierarchical order of the continental court system, with the single AU Court at the apex, is also proposed in this study as the supreme overarching supranational judicial organ. / Public, Constitutional, and International Law / LL.D.

Foreign investments in SADC are regulated by Annex 1 of the SADC Protocol on Finance and Investments (SADC FIP), as well as the laws of SADC Member States. At present, SADC faces the challenge that this regime for the regulation of foreign investments is unstable, unsatisfactory and unpredictable. Furthermore, the state of the rule of law in some SADC Member States is unsatisfactory. This negatively affects the security of foreign investments regulated by this regime. The main reasons for this state of affairs are briefly explained below. The regulatory regime for foreign investments in SADC is unstable, due to recent policy reviews and amendments of key regulatory instruments that have taken place. Major developments in this regard have been the suspension of the SADC Tribunal during 2010, the amendment of the SADC Tribunal Protocol during 2014 to bar natural and legal persons from access to the Tribunal, and the amendment of Annex 1 during 2016 to remove investor access to international investor-state arbitration, better known as investor-state dispute settlement (ISDS). The regulation of foreign investments in SADC has been unsatisfactory, among others because some SADC Member States have failed or neglected to harmonise their investment laws with both the 2006 and the 2016 Annex 1. Furthermore, SADC Member States such as Angola, Democratic Republic of Congo (DRC), Malawi, Mauritius, Seychelles, Eswatini, Tanzania, Zambia, and Zimbabwe have multiple Regional Economic Community (REC) memberships. This places these Member States in a position whereby they have conflicting interests and treaty obligations. Finally, the future of the regime for the regulation of foreign investments in SADC is unpredictable, due to regional integration efforts such as the recent formation of the COMESA-EAC-SADC Tripartite Free Zone (T-FTA) and the African Continental Free Trade Area (AfCFTA). The T-FTA is entitled to have its investment protocol, while the AfCFTA investment protocol will be negotiated from 2018 until 2020. These developments entail that the 2016 Annex 1 will soon be replaced by an investment protocol at either the T-FTA or AfCFTA levels, thereby ushering a new regime for the regulation of foreign investments in SADC. The unknown nature of the future regulations create uncertainty and instability among foreign investors and host states alike. This study analyses the regulation of foreign investments in terms of Annex 1 and selected laws of SADC Member States. In the end, it makes the three findings mentioned above. In order to address these findings, the study makes four recommendations. The first is that foreign investments in SADC must be regulated at African Union (AU) level, by means of an AfCFTA investment protocol (which incidentally is now the case). Secondly, investor-state disputes must be referred to the courts of a host state, optional ISDS, the African Court of Justice and Human Rights (ACJ&HR) or other agreed forum. Thirdly, an African Justice Scoreboard (AJS) must be established. The AJS will act as a gateway to determine whether an investor-state dispute shall be referred to the courts of a host state, ISDS, the ACJ&HR or other forums. Fourthly, the office of an African Investment Ombud (AIO) must be created. The AIO shall facilitate the early resolution of investor-state disputes, so as to reduce the number of disputes that may end-up in litigation or arbitration. / Mercantile Law / LL. D.

This Master of Laws dissertation is a treatise of “The efficacy of Alternative Dispute Resolution (ADR) in labour disputes: a critical comparative analysis of Botswana, South Africa (RSA) and Zimbabwe.” Alternative Dispute Resolution hereinafter referred to as (“ADR”) has attracted so much research ado worldwide with policy makers alive to its possibilities in so far as it ought to shed off the burden of the courts in handling disputes. Courts are considered inundated with unresolved cases taking many years to finalise. ADR is therefore touted, not only the panacea, but the cheaper, efficient and effective alternative to normal court process. This study was saddled with the common challenges of definition, scope and methodology as does most scientific studies, especially to locate the concept ADR in the plethora of views from prominent exponent-s of the discipline. This study labored on the considered view that ADR is essentially an ‘out of court settlement approach to dispensing with disputes involving an attempt by disputants to rope in an impartial third party to aid finality to the respective wrangle. The lack of a methodological approach to treat this subject matter, made this study more challenging. The study had to therefore rely on a hypothetical model developed after gleaning through various scholarly views 1 that sought to treat the subject of ADR efficacy in labour dispute resolution. The study contented with the strongly held view 2 that ADR is an efficacious approach in resolving disputes outside the court system. As to whether this was the case in Botswana, RSA and Zimbabwe in so far as labour dispute resolution is concerned was the major challenge this study was seized with? A model was formulated which envisaged that efficaciousness of ADR may be achieved if three conditions or criteria are present within a jurisdiction, namely (1) ADR Background Conditions that comprise (a) adequate legislative and political support; (b) Supportive institutional and cultural norms, (c) adequate and competent manpower, (d) sufficient funding support, and (e) power-parity of disputants; (2) ADR Program Design comprising of (a) Planning and preparation and (b) Operations and implementation and finally (3) ADR Measures (a) Client satisfaction; (b) Time efficient; (c) Cost saving and (d) Settlement & enforcement. This study measured the situations obtaining in the three countries using these three-pronged criteria. In all three measures3 this study found that although all the three countries still have a long way before their ADR became as efficacious as would be reasonably possible, RSA has made many strides such as legislative enactments immediately upon attaining independence that sought to address the injustices of the past and thereby installing structures for enforcing industrial democracy 4, while Botswana and Zimbabwe took 5 years 5 and over 10 years 6 respectively after attaining independence. RSA established an independent body for dispensing with labour dispute settlement7 while Botswana8 and Zimbabwe 9 are still reluctant to do so, relying rather on their labour ministries often marinated in bureaucratic bottlenecks hence stalling efficacy of ADR. While RSA makes effort to provide adequate and competent manpower because of sufficient funding, Botswana and Zimbabwe still struggle to dispense with disputes under their labour departments who are either inadequately skilled or also accused of favouritism in the case of Zimbabwe.10 All the three countries are regarded as unequal societies which tends to sway the power-parity of disputants with capitalists still wielding unbridled powers in dispute outcomes. South Africa enacted section 143 to the Labour Relations Act 11 which empowers the Director of CCMA to certify an arbitral award, giving it the same force as an order of the Magistrate Court. This has cut off the time and administrative burden of having to register an arbitral award with the court so as to obtain writs of executions and enforce it, a practice which is still prevalent in Zimbabwe. The Department of Labour in South Africa has made funding available to the CCMA to assist employees who are not in a financial position to enforce awards in their favour.12 The funding is aimed at employees who are too indigent to afford the costs of enforcement.13 These employees are deemed to be: (a) Employees who earn below the earnings threshold (currently at R205 433.30 per annum) – proof of income will be required by the CCMA. There is no record regarding enforcement or ease of enforcement of ADR outcomes in Botswana and Zimbabwe or at least this study is aware of. The governments of Botswana and Zimbabwe have been accused of using a heavy hand in determining wages, the right to strike and often curtailing union power through declaring certain sectors essential services. RSA’s Commission for Conciliation, Mediation and Arbitration hereinafter after referred to as (the “CCMA”)14 runs an electronic system of case management by which cases are screened and assigned commissioners whereas Zimbabwe and Botswana still rely on manual systems often inefficiently managed especially when it comes to allocating matters to ADR interventionists.15 In Zimbabwe the challenge of resources is acute often the Labour Officers lacking a simple photocopier and postage stamps to dispense with administration of disputes. This dissertation found that Botswana and Zimbabwe lack publicly available information from which to infer the efficaciousness of ADR practices therein. Measuring client satisfaction, efficiency and cost effectiveness, enforcement and settlement has not been tackled with ease, which was different when it came to RSA. This study argues that RSA’s ADR is efficacious rated at 75% attainment of settlement of disputes, despite accusations of failing to offer disputants options and job retention at the end of ADR intervention. Botswana and Zimbabwe on the measures raised above are not yet close to achieving efficaciousness based on the above criteria. The challenges need to be addressed to ensure that in all three measures ADR affords Botswana, RSA and Zimbabwe disputants a cheaper, efficient and effective alternative to dispensing with labour disputes. This study concluded with recommendations arising from the three measures ADR Background Conditions; ADR Program Design and (3) ADR Measures could be implemented towards achieving an efficacious ADR regime for the three countries and beyond. / Mercantile Law / LL.M.