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Magister Legum - LLM

This study examines the effectiveness of environmental and developmental rights within the SADC region, especially the status of their implementation and enforcement in the DRC and the RSA. The SADC Treaty recognizes implicitly the rights to environment and to development. Unfortunately, the unequivocal commitment to deal with human rights within the region is not translated with equal force into the normative framework established by the Treaty or into SADC’s programmed activities. No institution has been established with the specific mandate to deal with human rights issues, neither are there any protocols or sectors especially entrusted with human rights protection and promotion. The SADC member States do not share the same understanding or agenda on matters pertaining to the respect for, and the promotion, protection and the fulfilment, of human rights at the regional level. The inception of environmental and developmental rights within the Constitution of the DRC is still in its infancy compared to the situation in South Africa. Implementation and enforcement remain poor and need important support from all organs of state and from the Congolese citizens. A strong regulatory framework pertaining to human rights (environmental and developmental rights) remains an urgent issue. Guidance may be found in the South African model for the implementation and enforcement of human rights, although the realization of the right to environment in South Africa is hampered by a number of factors that cause the degradation of the environment. Against South Africa’s socio-economic and political background, the constitutionalization of the right to development remains of critical concern to a sustainable future for all. The Congolese and South African peoples need to be made aware of their constitutional rights, especially their environmental and development rights, and the institutions and the mechanisms available to enforce them. They need to be empowered to demand justice as a right not as an act of charity. It is patently clear that the authorities will not protect the environment or tackle the development agenda unless there is a strong people’s movement to challenge the State and other role players over environmental and development issues and ethics. / Constitutional, International and Indigenous Law / LL.D.

International water law has been unable to translate its principles into effective institutions for the management of shared water resources. National interest has often override any real commitment to the principles of international water law as reflected by the draft Articles of the ILC. Based on the theory of sovereignty, it emphasises a discretionary power to co-operate. However, the community of interest's theory is rather recommended as basis for co-operation. The draft Articles does not take sufficient account of the role domestic water policies, international relations and economics play in the co-operation of states. An integrated approach that considers social and economic effects within an environmental context is proposetL The political economy of water includes the potential of 'virtual water' through the importation of staple grains. A holistic approach, taking global trade in agriculture into account, is recommended. The SADC countries should also consider the potential of regional trade in 'virtual water'. / Law / LL. M. (Law)

The problem of low domestic savings is inherent in most Southern African Development Community (SADC) countries. This has motivated most of the SADC countries to institute policies that seek to attract foreign capital to cover the investment deficit that arises from low domestic savings rates. This study gives robust conclusions on the effectiveness of individual tax incentives commonly used by SADC countries in attracting foreign mobile capital. This study has broadened the dimensions research can take in analysing the contribution of tax incentives to Foreign Direct Investment (FDI) inflows into developing countries. In separating individual tax incentives mainly used in the SADC region the study gives a robust analysis on the impact of each tax incentive on FDI inflows into SADC countries. The tax incentives used in this study are: tax holidays, corporate income tax (CIT), reduced CIT in specific sectors and losses carried forward. The study also derives data indices for governance, infrastructure and economic policy variables which gives the study clean and reliable data for efficient regression results. These macroeconomic data derivations assist in giving the FDI attraction analysis more variables and well behaved data in drawing conclusions. Through an analysis and comparison of trends in FDI inflows and stock data in different African regions the study draws important conclusions on the impact of the socio-economic environment in FDI attraction. The study, in consultation with data from the period 2004 to 2013 separates the SADC countries into four panels based on resource richness. Panel 1 includes the resources-rich countries, Panel 2 the resources-poor countries, Panel 3 all SADC countries, except South Africa and Panel 4 all the SADC countries. Each of the estimate models in this study, use individual tax incentives variables to avoid the effects of collinearity between different tax incentives variables and to improve the predictive power of the panel data models. This study derived tax incentives data for individual SADC countries, from Ernst and Young’s worldwide tax data. Regular tax incentives in the SADC are derived from tax holidays, corporate income tax (CIT); losses carried forward and reduced CIT in specific sectors. This study seeks to achieve two major objectives: firstly, to establish the effectiveness of tax incentives in attracting FDI inflows into SADC countries, and, secondly, to establish other variables that influence FDI inflows into SADC countries. The study estimated four panels for SADC countries, separated according to resource richness. This was done because different types of FDI are dependent on the available resources in developing countries and thus factors that influence the FDI inflows differ according to resource richness. Resource-seeking FDI moves to resources-rich economies, market-seeking FDI goes to economies that have access to larger markets and efficiency-seeking and strategic-asset-seeking FDI move to economies that ensure efficient use of their capital resources. Thus, as expected, factors that attract FDI to countries in the separate panels differ in direction of causality and magnitude of impact. The study adopts a system Generalised Method of Moments (SYS GMM) methodology to address the problem of endogeneity associated with dynamic panel data models. The estimated results established that tax holidays positively explain FDI inflows in Panel 2. CIT was found to negatively affect FDI inflows into all SADC countries despite their particular category of resource-richness. Losses carried forward are insignificant in all panels and reduced CIT in specific sectors negatively influences FDI inflows in Panel 1 and surprisingly positively influences FDI inflows in Panel 2. The lagged FDI variable shows a positive relationship with current year FDI inflows. The governance index is significant and positively affects FDI inflows in panels 1, 3 and 4. Panel 2 shows a negative relationship between governance and FDI inflows. Market potential measured by GDP growth rate is insignificantly different from zero in all the four panels in the study and negatively signed, except in models A and C of Panel 2. The stock of infrastructure is significant and negatively signed in all the panels. The log natural resources variable though insignificant in some models, mainly, exhibit a significant and negative effect in most models of the study’s panel estimations. The trade openness variable is positively related to FDI inflows in Panel 1. Panel 2 show negative effects of trade openness to FDI inflows. Financial globalisation significantly impacts positive FDI inflows in all the four panels. The economic policy variable is insignificant in all the four panels of the study, except, in model B of Panel 1 where it is weakly significant at 10% level and negatively signed. The study concludes that tax incentives are important in FDI attraction in the SADC countries; therefore, an effective tax mix that ensures efficient use of tax incentives is important to ensure sustainable FDI inflows into the region. Good governance is important in the region for FDI inflows to increase. Increasing government rents from natural resources reduces FDI inflows in the SADC. Previous year flows of FDI are positively related to current year inflows, thus consistent FDI attraction policies in the SADC are important. Infrastructure in the SADC should be consistently improved to ensure suitability with the dynamic nature of foreign investment. Financial markets should be developed to ensure effective flow of capital and growth in economies through more investment. / Economics / D. Com.. (Economics)

The Southern African Development Community Tribunal (the Tribunal) is the only judicial organ of the Southern African Development Community (the SADC). Its mandate includes ensuring “adherence to and the proper interpretation of the provisions of the Southern African Development Community Treaty” (the Treaty). The decisions of the Tribunal are final and binding in the territories of member states party to a dispute before it. The responsibility to ensure that the decisions of the Tribunal are enforced lies with the Southern African Development Community Summit (the Summit). The Summit is the supreme policy-making body of the SADC. It comprises the Heads of State or Government of all SADC member states. The decisions of the Summit are binding on all member states and, upon referral from the Tribunal, it has the power to take appropriate action against a member state who refuses to honour a decision of the Tribunal. The Tribunal was established primarily to deal with disputes emanating from the SADC’s economic and political units and not with human rights. A dispute concerning allegations of human rights violations in Zimbabwe was brought before the Tribunal by farmers affected by the country’s land-reform policy. The Tribunal, through reliance on the doctrine of implied powers, and the principles and objectives of the SADC as contained in the Treaty, extended its jurisdiction. In particular, the Tribunal found that it had jurisdiction to hear cases involving human rights violations and that there had indeed been human rights violations in the case before it. It consequently ruled against Zimbabwe. This decision has been welcomed by many within the SADC region as showing the Tribunal’s commitment to interpreting the Treaty in a way that does not run counter the rights of SADC citizens. However, the Tribunal’s decision has met with resistance from Zimbabwe and has not been implemented on the ground, inter alia, that the Tribunal acted beyond its mandate. The Tribunal has on several occasions referred cases of non-compliance to the Summit for appropriate action against Zimbabwe. The Summit, however, has done nothing concrete to ensure that the Tribunal’s decisions are enforced in Zimbabwe. Instead, in an unexpected move that sent shockwaves through the SADC region and beyond, the Summit suspended the Tribunal and resolved that it should neither receive nor adjudicate any cases. During the SADC summit in August 2014, a Protocol on the Tribunal in the Southern African Development Community was adopted and signed (the 2014 Protocol). In terms of this Protocol the iii jurisdiction of the (new) Tribunal will be limited to inter-state disputes. Unfortunately, it also does not provide any transitional measures to address issues such as the manner to deal with pending cases and the enforcement of judgments. When it comes to the execution and enforcement of judgments, it can be argued that the 2014 Protocol is largely a replica of the original 2000 Tribunal Protocol. The reason for this is that the envisaged mechanisms to enforce the decisions of the new Tribunal is to a large extent similar to the previous one. Unsatisfied over the non-compliance with the decision by Zimbabwe, the litigants approached the South African courts to enforce the Tribunal’s decision in South Africa.1 The South African courts found that South Africa is obliged under the SADC Treaty to take all the necessary measures to ensure that the decisions of the Tribunal are enforced, and ruled against Zimbabwe. However, the decision is yet to be enforced. The non-compliance with the judgments and a lack of mechanisms to enforce the decisions of the Tribunal, are crucial issues as they undermine the authority of the Tribunal. This thesis explores whether the Tribunal acted within its mandate in receiving and hearing a human rights case. It further considers whether, in the absence of a human rights mandate, the Tribunal enjoys implied powers under international law to invoke the powers necessary for the fulfilment of the objectives set out in the Treaty. It also reviews the concept of state sovereignty and the extent to which it has been affected by human rights norms post-World War II; regionalism; and globalisation. An important aspect examined, is the relationship between SADC Community law and the national law of member states. The relationship between national courts and the Tribunal also receives attention. Ultimately, the discourse addresses compliance and enforcement of the Tribunal’s decisions in the context of international law. To the extent relevant, I draw on other regional (the European Court of Justice) and sub-regional (the ECOWAS Community Court of Justice, and the East African Court of Justice) courts to establish how they have dealt with human rights jurisdiction and the enforcement of their judgments. / Jurisprudence / LL. D.

Magister Legum - LLM / South Africa

The African continent has been beset with violent conflicts, civil wars and extended periods of instability. The continent’s future depends on the capacity to prevent, manage and resolve conflict. Reacting to conflict has proven highly expensive for the international community and has strengthened the case for a greater focus on conflict prevention. This study will examine the role, relevance and success of preventive diplomacy in responding to and preventing violent and protracted conflicts in Africa, in particular recent international efforts to seek a concrete, comprehensive and all-inclusive peace settlement to the conflict in the Democratic Republic of the Congo. The conflict in the Democratic Republic of the Congo had resulted in what many analysts considered to be ‘Africa’s First World War’. The aim and objective of this study will be to assess the role of preventive diplomacy, in particular efforts by the international community to resolve the conflict in the Democratic Republic of the Congo. The study of the success of preventive diplomacy in responding to the conflict in the Democratic Republic of Congo will cover three distinct phases. The first phase will assess the historical development of the crisis in the former Zaïre dating back from 1997 to 1998 and initial steps that were taken to address the conflict. The next phase will cover the period dating from 1999-2000 following the signing of the Lusaka Ceasefire Agreement, while the final phase will assess developments and efforts to secure peace by the international community from 2001 until 2004, while providing for a brief discussion on possible future developments. The research will commence by examining various theoretical contributions and insights produced on conflict prevention and the concept of preventive diplomacy. The examination of conflict prevention and preventive diplomacy will be rooted in theoretical insights produced by Michael Lund (1996) and other influential contributions on preventive diplomacy. The theoretical framework for this study will be based on Michael Lund’s model of preventive diplomacy. Although Lund’s conceptual framework provides a valuable insight into the theory of preventive diplomacy an additional theoretical consideration may be included into his assessment. Lund’s theoretical framework fails to address the impact of psychological variables and the extent to which prevailing conflict attitudes may exert a negative influence on a conflict situation. This may render the effectiveness of preventive diplomacy at the level of unstable peace obsolete if it fails to take prevailing conflict attitudes into account. This dissertation will also propose the inclusion of social-psychological approaches to augment the strategy of preventive diplomacy as developed by Lund. Very little conclusive and in-depth research has been conducted on how psychological variables, particularly conflict attitudes such as negative images, attitudes, perceptions and conflict behaviour can fuel and exacerbate a conflict situation, especially conflicts in Africa and how this may derail the success of preventive diplomacy in resolving such severe conflicts. In the numerous efforts to secure peace in the embattled Democratic Republic of the Congo scant consideration, evaluation and analysis has been produced on the way in which conflict attitudes such as misperception, fear, distrust, hostility and suspicion, became not only a major stumbling block to the peace process, but also negatively affected the outcome of the various peace agreements that were negotiated. One of the core arguments this dissertation will posit is that preventive diplomacy has not been successfully applied in resolving conflicts in Africa, and will continue to fail, unless greater emphasis is placed on structural prevention, that includes an assessment and strategy for responding to conflict attitudes, such as misperception, hostility, suspicion, fear and distrust. It could be argued that preventive diplomacy initiatives when taken alone and independently of a broader strategy of conflict prevention are likely to fail unless they are linked to measures and actions that tackle the deeper or structural causes of conflict. Greater emphasis should be placed on timely and adequate preventive action, through the vigorous promotion of preventive diplomacy, particularly structural prevention. The conflict in the Democratic Republic of the Congo is intermittently erupting and will continue to do so, unless the structural causes of the crisis and the various conflict attitudes are effectively dealt with. The study will commence with the theoretical and conceptual framework of the study, consisting of a discussion of conflict, preventive diplomacy, and conflict prevention. The conflict in the Democratic Republic of the Congo will be discussed as well as the underlying factors that contributed towards the brutal and excessively violent nature the conflict came to assume. The study will also examine the international response to the conflict in the Democratic Republic of the Congo as well as the immediate diplomatic efforts initiated to resolve the crisis from 1998-1999, which culminated in the signing of the Lusaka Cease-Fire Agreement on 10 July 1999. An assessment of the intervention efforts initiated by the United Nations, the Southern African Development Community (SADC) and other key African states, in particular South Africa will also be undertaken. The impact of psychological variables and the importance of assessing the crucial contribution of social-psychological approaches towards understanding and resolving conflict will be briefly considered with particular reference to the protracted tensions which persisted between Rwanda and the DRC, despite the conclusion of numerous peace agreements between both countries. The final chapter will form an evaluation of the prospects for peace in the DRC beyond 2004 and will conclude the study with particular reference to the extent to which the research questions have been adequately addressed with final recommendations on the role of preventive diplomacy in addressing conflict. / Dissertation (MA (International Relations))--University of Pretoria, 2008. / Political Sciences / unrestricted

The purpose of this research is to explore the need for, and the legal implications of, harmonising labour laws in the Southern African Development Community (SADC). Chapter One highlights a number of factors that call for the harmonisation of labour laws in the SADC region and discusses some of the reasons why labour laws are not well developed in the region. The influence of globalisation on labour standards in southern Africa and the influence of regionalism on the harmonisation of labour laws are discussed at length. The inference that could be drawn from this discussion is that for a regionalisation process in southern Africa to be successful, there is an urgent need to harmonise the region’s labour law system. This thesis confirms that Southern Africa has many lessons to learn from the regional harmonisation of labour law in the European Economic Community and the current European Union. The implementation of international labour standards in southern Africa is investigated. The main areas examined include (1) freedom of association, (2) collective bargaining, (3) forced labour and (4) discrimination. The findings of this investigation show that there is no uniformity in the implementation of International Labour Organisation (ILO) standards in the SADC region and, therefore, it is recommended labour law should be harmonised in terms of ILO standards. In respect of the benefits to be derived from the harmonisation process, an empirical investigation was conducted in the SADC region and the following is recommended: the harmonisation of labour law in the SADC region will help with the implementation of ILO standards, protection of workers against the economic power of employers in the workplace and maintaining similar benefits for migrants in the region. / Mercantile law / LL. D.

The Southern African Development Community (SADC) is a regional economic community established by Treaty in 1992 and comprising fifteen southern African countries. The Tribunal, SADC’s judicial organ, is situated in Windhoek, Namibia and became operational in 2005. The Tribunal enjoys a wide mandate to hear and determine disputes between states, states and SADC, and between natural and legal persons and states or SADC. It is mandated to develop its own jurisprudence having regard to applicable treaties, general rules and principles of public international law, and principles and rules of law of member states. Being new in the field, the Tribunal has not as yet developed a significant jurisprudence although it has delivered a number of judgments some of which are referred to in the study. The Tribunal is expected to develop its own jurisprudence having regard to the jurisprudence developed by other international courts involved in the judicial settlement of disputes. The study offers a comparative review and analysis of the jurisprudence of two selected courts: the International Court of Justice (ICJ) and the Court of Justice of the European Union (ECJ). The focus is on four selected areas considered crucial to the functioning of the Tribunal and the selected courts. The study discusses the parties with access to the Tribunal and compares this with access to the ICJ and ECJ. The jurisdiction of the Tribunal is contrasted with that of the two selected courts. The sources of law available to the Tribunal are discussed and contrasted to those of the two courts. Lastly, the enforcement of law in SADC is contrasted to what applies in relation to the selected courts. In each selected area, similarities and differences between the Tribunal and the two courts are noted and critically evaluated. Further, rules and principles developed by the two selected courts are explored in depth with a view to identifying those which could be of use to the Tribunal. Recommendations are made on rules and principles which could be of use to the Tribunal and on possible improvements to the SADC treaty regime. / Constitutional, International and Indigenous Law / LL.D.