Theses and Dissertations (Public, Constitutional and International Law)
https://hdl.handle.net/10500/2751
2024-03-28T14:18:24ZA public law approach to health research in South Africa
https://hdl.handle.net/10500/30640
A public law approach to health research in South Africa
Maswanganyi, Jamwell Vuyisa
The resolution of health research problems has over the years generally been guided by private law approaches, mainly under the laws of contract and delict. The dominance of private law approaches has mainly been evident in the context of health research litigation. This study is therefore about the plausibility or otherwise of a public law approach (PLA) to the resolution of health research problems. The study argues that the PLA is more plausible, and in particular better enhances the protection of health research participants.
In doing so the study, after examining the historical evolution of the thinking and frameworks relevant to bioethics, examines the existing legal and ethical theories, and their adequacy in the resolution of health research problems. The theories, on the whole, have been found not to be adequate in this regard, more particularly when used in isolation. The study further examines existing SA law, including some ethical instruments. The possible adequacy of this framework in the resolution of health research problems, as well as its consistency with a PLA, is also examined. The study further examines the comparability of the SA law with the UK and US laws, as well as the consistency of the three jurisdictions’ frameworks with the PLA. The study has however found that though there is some, though incoherent, presence of some public law elements in the three jurisdictions, these have not yet found application in the context of health research litigation in these jurisdictions. The study further had to examine the international legal position (including the African, European and Inter-American regional frameworks) and its consistency with the PLA. Despite that, on the whole, the international legal framework does tend towards the PLA, the framework has yet to be used in the context of health research litigation. A paradigm shift is therefore required, both theoretically and pragmatically. A ‘Public Law Approach’ is therefore proposed. Such a proposed framework shall therefore ensure that public law approaches are also used alongside, as a supplement to or, where applicable, as an alternative to, private law approaches, further enhancing protection for research participants.; Malembe yo tala lama hundzeke ku ahluriwa ka swiphiko swa ndzavisiso wa swa rihanyo wu ve ngopfu ehansi ka milawu ya ta (vuxaka bya) vanhu ntsena (private law), ngopfu-ngopfu milawu ya tikontiraka na ya dilikti. Tirhelo ra swa milawu ya ta vanhu ntsena ri tikombisile ngopfu eka swa milandzu ya swa ndzavisiso ya swa rihanyo. Hikokwalaho ka sweswo ndzavisiso lowu wu langutanaka na ku amukeleka ka matirhelo ya swa milawu ya ta vanhu na mfumo (Public law approach) (PLA) eku ololoxeni ka swiphiko swa ndzavisiso wa swa rihanyo. Ndzavisiso lowu wu koxa leswaku tirhelo ra PLA ra amukeleka swinene, no tlhela ri antswisa ku sirheleriwa ka vanhu lava va nghenelaka eka ndzavisiso wa swa rihanyo (health research participants).
Ku fikelela sweswo ndzavisiso lowu, endzaku ka loko wu xopaxopile matimu ya maendlelo yo karhi lama fambisanaka na bayo-ethiki, wu tlhela wu lavisisa tithiyori leti ti nga kona ta xinawu na xiethiki, leti ti fambelanaka na ku ahluriwa ka swiphiko swa ndzavisiso wa swa rihanyo. Ku eneteleka ka matirhelo lama ku thlela ku langutisisiwa. Tithiyori leti ti kumekile, hi ku angarhela, leswaku a ti enelanga, ngopfu ngopfu loko ti tirhisiwa ti ri toxe ku ololoxa swiphiko swa ndzavisiso wa swa rihanyo. Ndzavisiso wu tlhlela wu langutisisa nawu wa Afrika-Dzonga, ku katsa na tiethiki ta rona. Ku enetelaka ka tirhelo leri eku ololoxeni ka swiphiko swa ndzavisiso wa swa rihanyo na ku fambisana ka rona na PLA na swona swa langutisisiwa. Ndzavisiso lowu wu tlhela wu fananisa tirhelo ra nawu wa Afrika-Dzonga na tirhelo ra milawu ya UK na US, no tlhlela wu langutisisa ku fambelana ka matirhelo lama (ya matiko manarhu) na PLA. Ndzavisiso lowu wu tlhela wu kuma leswaku hambiloko ku ri na vukona byo karhi bya PLA, hambi byi tsekatseka, eka milawu ya matiko lamanharhu, PLA a yi se tirhisiwa eka matiko lama, etikhoto, hi mayelana na swa ndzavisiso wa swa rihanyu. Ndzavisiso a wu fanele ku tlhela wu langutisisa tirhelo ra milawu ya matiko ya misava (international law), ku katsa na matirhelo ya tikontinente ta Afrika; Yuropa na Americas, na ku fambisana ka matirhelo lama na tirhelo ra PLA. Hambileswi nawu wa matiko ya misava wu voyamelaka ngopfu eka tirhelo ra PLA, tirhelo leri a ri se tirhisiwa etikhoto, hi mayelana na ndzavisiso wa swa rihanyo. Ku cinca ka matirhelo, hi mavonelo na hi ku tirhisiwa ka wona, swa laveka. Hikokwalaho, tirhelo ra PLA ra laveka. Tirhelo rero ri ta vona leswaku matirhelo lama ya voyamelaka eka nawu wa ta vanhu na mfumo (public law approaches) ya tirhisiwa swin’we, kumbe ku tlhandlekela eka, kumbe ku tirhisiwa handle ka, matirhelo ya nawu wa ta vanhu ntsena (private law approaches). Leswi swi ta antsiwa ku sirheleriwa ka lava va nghenelaka eka swa ndzavisiso wa swa rihanyo.
English and Tsonga abstracts
2022-03-01T00:00:00ZRegulatory mechanisms for stimulating power sector reform in Nigeria
https://hdl.handle.net/10500/30528
Regulatory mechanisms for stimulating power sector reform in Nigeria
Fasuyi Babatunde Olumuyiwa
Prior to the introduction of private participation in the value chain of the power supply
system, some of the major challenges bedeviling the system are; the inadequate
generation capacity, failing and limited transmission network, poor distribution system
marred with technical, commercial and collection losses.
The main reason for these challenges is that government was ill equipped in the
management of power utility. Therefore, the introduction of the National Electric Power
Policy (NEPP) spelt out the rationale for the reform of the power sector which is to
encourage private participation alongside government participation to drive efficiency.
Adopting the World Bank recommended power sector reform principles which typically
emphasizes transparent regulatory framework, commercialization and corporatization,
and independent power producers as a basis for financial support, the Nigerian
government enacted the Electricity Power Sector Reform Act in 2005 (the Reform Act),
unbundled its vertically integrated power assets, sold the unbundled assets and formally
open up the power market for private privatization in 2013.
However, while the power market achieved private participation, necessary regulatory
mechanisms for stimulating the reform as well as solving market challenges have either
being lacking, weak, or not properly implemented in the post privatized power market.
Some of these regulatory mechanisms are namely; the Aggregate Technical and
Commercial and Collection losses reduction mechanism, tariff adjustment mechanism
(MYTO), estimated billing and metering mechanisms (Meter Asset Provider Regulation
and National Mass Metering Programme), load allocation mechanism, transmission
expansion plan mechanism, and Grid Code operation.
The study analyses some of the regulatory mechanisms vis-a-vis the market problems
they are intended to solve. The study equally identified market situations that require regulatory intervention with a view to making findings. Analysis of some selected
regulatory mechanism initiatives of other power markets was carried out in order to draw
out useful options and lessons for the Nigerian power market. At the conclusion of the study, findings and recommendations were made. To address the findings, three
recommendations were made. First, the decentralization of power supply system in the
country. Secondly, deemphasizing the overreliance on the transmission network and the
restructuring of the network. Thirdly, the underutilized available capacity of the Gencos
be utilized before any generation capacity expansion is carried out.
2022-11-22T00:00:00ZSex for sale : a comparative analysis of legal models and the socio-economic determinants informing law reform in South Africa
https://hdl.handle.net/10500/30094
Sex for sale : a comparative analysis of legal models and the socio-economic determinants informing law reform in South Africa
Clark, Dellene Michelle
The overarching purpose of this research is to establish the need for legislative and policy reform in respect of the exchange of sexual acts for reward and peripheral crimes in South Africa. It has sought to do so through interrogating the context and the socio-economic determinants at work in South Africa, Canada, Sweden and India; and how each country’s unique context intersects with the chosen policy and legal framework. As a starting point the current criminalised legal framework is positioned as a constitutionally permissible legislative choice. In light of the fact that legislatures the world around draft legislation which regulates sensitive areas of morality, it would seem that the underlying question is which interpretation or understanding of morality should be used to inform legislative reform. This thesis is based on the assumption that the chosen legal framework is a policy choice and argues that this policy should be informed by available evidence and rational analysis, as opposed to political ideology. Evidenced-based research has been used to consider the complexity of the primary socio-economic drivers of poverty, inequality, unemployment and intersecting vulnerabilities such as early exposure to sexual violence as causal to entry into the sale of sexual services. Three global themes underpinning the need for law reform have been considered comparatively, including documenting the unfolding developments around law reform. This research has considered South Africa’s obligations in terms of binding international instruments to bring about normative change in respect of gender-based violence; recognise economic and social rights; curtail aspects associated with the exploitation of prostitution; guard against sex tourism; suppress all forms of trafficking in women, and address patriarchy and traditional stereotypes of women as sex objects. It is axiomatic that the solution to a problem sustained by socio-economic drivers is to be found in the disruption of those very same drivers. The outcome of this research is a recommendation in favour of substantive equality in the form of a country-specific legal framework of partial criminalisation coupled with the realisation of socio-economic rights.
2023-02-01T00:00:00ZStriking a balance between the secrecy of online communication and online criminal investigation in South Africa
https://hdl.handle.net/10500/30082
Striking a balance between the secrecy of online communication and online criminal investigation in South Africa
Popoola, Olumuyiwa Oluwole
In the Republic of South Africa (‘RSA’), there are exponentially increasing and indeterminable
consequential risks and breaches involved in the spontaneous and indispensable personal,
official and general anatomic uses of the quicksilver, complex and delicate conscriptive,
interoperable, non-compartmentalised and non-passworded compartmentalised online
communication devices, technologies, networks, applications, and services. These risks and
breaches result in a disequilibrium in the following antithetical legal vector argument. On the
one hand, these risks and breaches are attributed to the non-recognition, and inadequate
protection of the independent and unique right in online communication, the concept of which
originates from the jurisprudence of the broad gamut of the right to privacy. On the other hand,
these risks are exacerbated by the increasing, unrestrictive and perpetual techno-legal abuse of
online communication by law enforcement agencies or officers (‘LEAs’ or ‘LEOs’) of the
alternative conduct of the covert online criminal investigation (‘OCI’) of serious offences,
arising from the dearth of and non-compliance with the regulation for the conduct of an OCI.
This dual study clinically examines the irreconcilable conflict between the protection of the
right in online communication and the public criminal mandate of the State to conduct an OCI
of serious offences. Firstly, this study investigates the existence of the levels of risks involved
in the conscriptive, interoperable, non-compartmentalised and non-passworded
compartmentalised continua of privacy interests in online communication, requiring a
corresponding protective and secure regime in the conduct of an OCI. Secondly, it probes into
the various substantive and procedural thresholds required in the limitation of the right in online
communication when conducting an OCI. Lastly, it examines the mechanisms for institutional and structural independence, competence, due process, separation of powers and checks and
balances in the conduct and oversight of the conduct of an OCI in the RSA.
Consequently, the examination of the above issues reveals the absence, inadequacy of, and
non-compliance with the substantive and procedural constitutional, legislative and policy
framework that caters for the protection of the right in online communication and the conduct
of an OCI in the RSA. Accordingly and specifically, this study proposes that the RSA adopts
an adequate constitutional and single legislative framework to address the contemporary
societal techno-legal tapestry in the conflict between the right in online communication and the
conduct of an OCI of serious offences in the RSA as follows.
Firstly, it is imperative to unequivocally, in the legal framework in the RSA, including the
Constitution, consider the existence of higher levels of risks and the simultaneous or
consequential recognition of the higher levels of protection of the invaluability in online
communication —including the emerging quantum computing— in contrast with non-online
communications. This contrast hierarchically compels the unimpeachable protection of the
independent right to the secrecy of online communication (‘SOC’), which is inadequately and
incongruously protected as mere online privacy in section 14 of the Constitution of the RSA.
Secondly, it is equally crucial to consider the application of or compliance with adequate
substantive and procedural scientific threshold requirements to conduct an OCI of serious
offences in the RSA. These requirements include the application of: online conscription;
section 205 of the Criminal Procedure Act; ‘no server, but law’ principle as opposed to the
U.S. ‘no server, no law’ principle; robotic and non-robotic OCI; ex-parte and non-ex-parte
verbal and written quadripartite techno-legal individual and mass online criminal investigation
of privileged and non-privileged online communications by ghost and non-ghost applicants;
pre and post OCI data management procedure and admissibility of void and voidable evidence.
Furthermore, it is of great importance to apply the all-embracing proportionality principle in
section 36 of the Constitution in which this study, from a contrarian belief, classifies serious
offences into six categories under four criteria and propounds some definite and functional
Popoola mathematical and non-mathematical formulae in the standard of proof required to
conduct an OCI, the procedure of which should be incorporated in a legislation.
Thirdly and finally, it is of utmost significance to, in the legal framework in the RSA, including
the Constitution, consider the application of or compliance with safeguard mechanisms in the
conduct of an OCI. These mechanisms are to ensure the inviolability of the principles or
requirements of structural and institutional independence, competence, due process, separation
of powers and checks and balances in the conduct and oversight of the conduct of an OCI of
serious offences by LEAs or LEOs and other stakeholders respectively.
2020-05-09T00:00:00Z