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JOURNAL OF UWC FACULTY OF LAW | ISSN 2077-4907 | Short URL www.ldd.org.za

Current volume

current volume 

Volume 24

REFEREED ARTICLES 

 

Who are ‘the people’ in the German Constitution? A critique of, and contribution to, the debate about the right of foreigners to vote in multi-level democracies, pgs 1-26

 
 Baumler, Jelena 
 

Democracy means power to the people, but it is not always clear who belongs to ‘the people’. The question has become pertinent in the age of migration where large groups of foreigners permanently reside outside their countries of nationality. The economic, cultural, and political integration of these foreigners is one...

 
 

Private regulation in the context of international sales contracts, pgs 27-53

 
 Coetzee, Juana 
 This article argues that modern international sales law has a hybrid character as it increasingly makes provision for interfaces between public and private, State and non-State, hard and soft , law. Although private forms of regulation are often associated with the lex mercatoria, this article shows that they rarely...

 
 

An empirical analysis of class actions in South Africa, pgs 54-85

 
 Broodryk, Theo 
 

As far as the author is aware, there has not been an empirical analysis of class actions in South Africa since the introduction of the mechanism by the interim Constitution of 1993 more than 25 years ago. There is no publicly available data which provides meaningful empirical insight into the...

 
 

Normative intersectionality in married women’s property rights in southern Nigeria, pgs 86-108

 
 Diala, Anthony C and Diala, Jane C 
 

The fate of marriage gifts during a customary law divorce is significant for the interaction of legal orders in sub-Saharan Africa, especially in the context of scholars’ fixation with conflict of laws. In analysing this fate, this article introduces normative intersectionality as a theoretical framework for a nuanced understanding of...

 
 

An analysis of the duty to reasonably accommodate disabled employees: a comment on Jansen v Legal Aid South Africa, pgs, 109-132

 
 Gresse, Estie and Mbao, Melvin LM 
 

Persons with disabilities are a historically marginalised minority, who have the capacity to make a valuable contribution in the workplace. Recent case law suggests that the duty to reasonably accommodate disabled employees remains a conundrum for employers in South Africa. In Jansen v Legal Aid South Africa (C678/14) [2018] ZALCCT...

 
 

Sustainable development and international economic law in Africa, pgs 133-157

 
 Khumalo, Thabo Fiona 
 

Sustainable development has been advocated by the developed world as a means to ensure that the most widely beneficial type of development occurs. This has resulted in a body of rules, which though well intended, does not adequately address the developmental needs of developing countries. It has become a source...

 
 

Shifting consciousness and challenging power: Women activists and the provision of HIV/AIDS services, pgs 158-176

 
 Mottiar, Shauna and Dubula, Vuyiseka 
 

In 2003, the South African government shifted AIDS policy, making HIV treatment available in the public healthcare sector. The antiretroviral roll-out, while hailed as a success, has required continued activism to ensure genuine implementation. Women, particularly the poor, traditionally bear the brunt of the impact of HIV/AIDS socially and economically...

 
 

The incentivisation of inclusionary housing by South African municipalities: A property law perspective, pgs 177-200

 
 Kulundu, Kenneth and Muller, Gustav 
 

Although it is still in its formative stages, the idea of inclusionary housing in South Africa’s constitutional context is inescapable. The typical characteristic of inclusionary housing is that a developer is required or encouraged to dedicate a specified portion of her housing development project to the provision of affordable housing...

 
 

Staircase or safety net? Examining the meaning and functioning of RDP house ownership among beneficiaries: A case study of Klapmuts, Stellenbosch, pgs 201-224

 
 Dugard, Jackie 
 

Recognising the apartheid legacy of in-access to housing and property for the majority of black South Africans, the Constitution entrenches rights of access to housing and property. Since 1994, one of the main ways the government has pursued this mandate has been to roll out an ambitious Reconstruction and Development...

 
 

A human-rights-based approach to fighting corruption in Uganda and South Africa: Shared perspectives and comparative lessons, pgs 225-247

 
 Mubangizi, John C 
 

This article focuses on corruption in Uganda and South Africa. It begins with a brief analysis of the effects of corruption on the two countries before looking comparatively at their anti-corruption legal frameworks by analysing the relevant constitutional and legislative anti-corruption provisions. The choice of Uganda and South Africa for...

 
 

The implications of the decision in Helen Suzman Foundation v Judicial Service Commission 2018 (7) BCLR 763 (CC) 8 on the functioning of the South African Judicial Service Commission, pgs 248-270

 
 Ntlama, Nomthandazo 
 

The article examines the implications of the judgment of the Constitutional Court in Helen Suzman Foundation v Judicial Service Commission 2018 (7) BCLR 763 (CC) 8 on the functioning of the Judicial Service Commission (JSC). The judgment has brought to the fore a new lease of life relating to the...

 
 

Nativism in South African municipal indigent policies through a human rights lens, pgs 271-317

 
 Fuo, Oliver 
 

The dawn of constitutional democracy in South Africa triggered a new wave of immigration into the country. Foreign migrants post-1994 now make up about seven per cent of the country’s population. The majority of the new intake are Africans pursuing economic opportunities, or refugees seeking asylum. The convergence of South...

 
 

What happens on the beach stays on the beach: A speculative legal analysis of nudism in South African protected areas, pgs 318-337

 
 Blackmore, Andrew 
 The Hibiscus Coast Municipality assumed it had the authority to issue or amend by-laws to formalise an existing nudist friendly beach within the Mpenjati Nature Reserve. Following a complaint, the Public Protector concluded the same when she investigated the legality of the Municipality’s actions. Two immediate questions arise. The first, ...

 
 

Are courts going out of their way to accommodate racists? A critique of South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others, pgs 338-363

 
 Nkosi, Thulani and Mahlako, Neo 
 The article critically examines the way in which the Constitutional Court dealt with the issue of racism in South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and others 2017 (1) SA 549 (CC). Invoking general legal principles blended with critical race theory, we show that the apex...

 
 

The implications of the Public Protector’s remedial action directing the exercise of discretionary constitutional powers: separation of powers implications, pgs 364-383

 
 Slade, Bradley V. 
 This article considers the judgments of the North Gauteng High Court in which the remedial action of the Public Protector was reviewed. In President of the RSA v Public Protector, delivered in 2018, the Court upheld the remedial action directing the President to appoint a commission of inquiry without having...

 
 

When do you call time on a compromise? South Africa’s discourse on transformation and the future of transformative constitutionalism, pgs 384-412

 
 Sibanda, Sanele 
 The main thrust of this article is to advance a critique of South Africa’s embrace of the grammar of transformation after the official demise of colonial-apartheid, in particular how this grammar has been deployed in a totalising fashion as it is held out to be definitive of the processes, measures...

 
 

South African municipalities in financial distress: What can be done? pgs 413-441

 
 Glasser, Matthew D. and Wright, Johandri 
 South African municipalities have been faced with financial distress for some years. In some municipalities, financial distress has intensified to the extent that local government faces a "collapse”. On the other hand, many municipalities have been in reasonably good financial shape, at least until the recent pandemic. The information National...

 
 

The High Court of Malawi as a constitutional court: Constitutional adjudication the Malawian way, pgs 442-467

 
 Nkhata, Mwiza Jo 
 Constitutional adjudication in Malawi only became commonplace after the adoption of a new Constitution in 1994. Like many Anglophone countries, Malawi follows the decentralised model of constitutional adjudication. Under this arrangement, the High Court has unlimited original jurisdiction to hear any civil or criminal matters, including constitutional matters. The Courts...

 
 

eThekwini’s discriminatory by-laws: Criminalising homelessness, pgs 468-511

 
 Holness, Willene 
 The eThekwini Municipality’s Nuisances and Behaviour in Public Places By-Laws of 2015, and the Beaches By-Laws of 2015, seek to regulate and prohibit some of the life-sustaining activities of homeless persons in the city through petty offences. The article considers whether these measures indirectly discriminate against homeless persons, disproportionately impact...

 

FORUM CONTRIBUTIONS 

 

FORUM CONTRIBUTION: Understanding, protecting, promoting and entrenching the rule of law: What individuals, constitutional institutions, state entities and civil society must do, pgs 1-26

 
 Justice Mahomed Solomon Navsa 
 

The gains of the struggle against apartheid must be consolidated through the establishment of the rule of law: this was the central message in Justice Navsa’s address as speaker at the Dean’s Distinguished Lecture, delivered at UWC Faculty of Law on 24 October 2019. In an age where the Constitution...