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

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Refereed articles

A human-rights-based approach to fighting corruption in Uganda and South Africa: Shared perspectives and comparative lessons, pgs 225-247
Volume 24 - 2020 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...

An analysis of the duty to reasonably accommodate disabled employees: a comment on Jansen v Legal Aid South Africa, pgs, 109-132
Volume 24 - 2020 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...

An empirical analysis of class actions in South Africa, pgs 54-85
Volume 24 - 2020 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...

Nativism in South African municipal indigent policies through a human rights lens, pgs 271-317
Volume 24 - 2020 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...

Normative intersectionality in married women’s property rights in southern Nigeria, pgs 86-108
Volume 24 - 2020 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...

Private regulation in the context of international sales contracts, pgs 27-53
Volume 24 - 2020 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...

Shifting consciousness and challenging power: Women activists and the provision of HIV/AIDS services, pgs 158-176
Volume 24 - 2020 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...

Staircase or safety net? Examining the meaning and functioning of RDP house ownership among beneficiaries: A case study of Klapmuts, Stellenbosch, pgs 201-224
Volume 24 - 2020 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...

Sustainable development and international economic law in Africa, pgs 133-157
Volume 24 - 2020 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...

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
Volume 24 - 2020 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...

The incentivisation of inclusionary housing by South African municipalities: A property law perspective, pgs 177-200
Volume 24 - 2020 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...

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
Volume 24 - 2020 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...

A fourth transformation of democracy? Liquid democracy, supra-national democracy and the fate of participation, pgs 181-201
Volume 23 - 2019 Dingeldey, Philip

Liquid democracy is defined as a cyber democracy that combines representative democracy and spontaneous direct democracy by using technologies of the web 2.0. In recent years, some political theorists and actors have been optimistic that liquid democracy could make a more participatory and direct democracy possible to fulfil the democratic...

Bicameralism in Lesotho: A review of the powers and composition of the second chamber, pgs 18-43
Volume 23 - 2019 ‘Nyane, Hoolo

Lesotho has a bicameral parliamentary system based on the British model. While the National Assembly is clearly a representative House elected by the citizenry, the purpose, structure and legislative powers of the Senate as the Second Chamber have been a matter of considerable controversy throughout the history of parliamentary democracy...

Democracy and (the essential content of) fundamental rights: Marching in line or precarious balancing act? pgs 299-330
Volume 23 - 2019 Schaks, Nils

This article addresses the question of how democracy and fundamental rights interplay, and compares German and South African law for this purpose. The author argues that democracy requires and presupposes fundamental rights, but that these two values do not always align, and then deals with the question of how to...

Does the exclusion of a right to basic sanitation in international law impede its legal enforcement? pgs 245-269
Volume 23 - 2019 Heleba, Siyambonga

Despite expressly providing for a number of rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR) sadly omits the right to basic sanitation. This is a matter of concern as figures released by United Nations agencies and other international organisations paint a bleak picture of the levels of...

Ex parte Somers (1927) 48 NPD 1: A story of racial exclusion in the South African legal profession, pgs 219-244
Volume 23 - 2019 Lutchman, Salona

The article critically examines the judgment in ex parte Somers (1927) 48 NPD 1 from both a legal and personal perspective. The judgment details the case of an Indian South African who requested the Court to grant his admission as a candidate attorney. The Court refused his application on the...

Four years following South Africa’s declaration upon the ratification of the ICESCR and jurisprudence on the right to basic education: A step in the right direction? pgs 270-298
Volume 23 - 2019 Nanima, Robert Doya and Durojaye, Ebenezer

Education empowers individuals to develop the skills needed for economic success in order to contribute to nation-building and reconciliation. Following South Africa’s ratification of the International Covenant on Economic, Social and Cultural Rights, there were mixed reactions on account of the much-anticipated ratification, on the one hand, and the declaration...

Has South Africa committed in good faith to article 34 of the UN Refugee Convention, which calls for the naturalisation of refugees? pgs 68-99
Volume 23 - 2019 Khan, Fatima

It is widely accepted that to be naturalised one must acquire the nationality of a political or national community, and that such a status is accompanied by various rights. It is also widely accepted that nationality can be acquired in various ways. Article 34 of the 1951 United Nations Convention...

Hold on to critical jurisprudence, pgs 202-218
Volume 23 - 2019 Van Marle, Karin

The main aim of this article is to reflect tentatively on the importance of a continuing critical jurisprudence. By thinking about the lives and legacies of the late Nelson Rolihlahla Mandela and his second wife, Winnie Madikizela Mandela, the author seeks to reconsider a specific kind of critical jurisprudence, with...

Supervision of local government in Zimbabwe: The travails of mayors, pgs 44-67
Volume 23 - 2019 Chigwata, Tinashe Carlton; Marumahoko, Sylvester; and Madhekeni, Alois

The discourse on decentralisation theoretically supports central government supervision of local government. The exercise of such powers by the central government of Zimbabwe is mired in controversy. Mayors are often suspended and/or dismissed to safeguard so-called "public interests". In particular, those who are from the opposition political party, the Movement...

The global financial regulatory system and the rule of law: An appraisal of the regulatory process under Basel III, pgs 148-180
Volume 23 - 2019 Mengie, Legesse and Arcuri, Alessandra

The efficacy of the existing international financial regulation and adoption of an institutionalised form of regulation are among the global financial governance issues which have been well addressed by scholars in the field. The less-investigated but directly related and worth considering issue is the impact of the contemporary global financial...

The implications of Truworths Limited v Minister of Trade and Industry 2018 (3) SA 558 (WCC) for access to credit by historically disadvantaged and low-income consumers, pgs 1-17
Volume 23 - 2019 Wazvaremhaka, Tinashe and Osode, Patrick C

The problem of safe and affordable credit for low-income consumers has remained a conundrum for policy makers. More pointedly, sustainable participation of historically disadvantaged and low-income consumers in the mainstream credit market has proved to be problematic in South Africa. Despite the introduction of the National Credit Act 34 of...

The South African Constitution’s empty promise of ‘radical transformation’: Unequal access to quality education for black and/or poor learners in the public basic education system, pgs 100-147
Volume 23 - 2019 Arendse, Lorette

The South African Constitution mandates the radical transformation of the public basic education system. To that end, the Constitution, read with the South African Schools Act, entrenches a right of equal access to quality basic education for all. The substantive approach to equality, rooted in the transformative ideology of the...

Cultural and religious diversity: Are these effectively accommodated in the South African workplace? pgs 26-38
Volume 22 - 2018 Prinsloo, Monique; Huysamen, Elsabe

South Africa is regarded as a wonderful example of a multicultural society - housing a diverse range of individuals from across various races, cultures, backgrounds and religions, to name but a few.  The Constitution protects the rights to culture and religion, amongst others, and these rights are also protected...

My Vote Counts and the transparency of political party funding in South Africa, pgs 1 - 11
Volume 22 - 2018 Klaaren, Jonathan

Transparency and opacity are mutually supported and nurtured within a constitutional democracy. From such a perspective, the decision of the Constitutional Court of South Africa in the My Vote Counts case represents one interpretation of constitutional authority to enforce the right of access to information. The case is a lost...

The (mis)application of the limitation analysis in Maseko and Others v Prime Minister of Swaziland and Others, pgs 12 - 25
Volume 22 - 2018 Dube, Angelo; Nhlabatsi, Sibusiso

Unlike section 36 of the South African Constitution, the Swaziland Constitution does not contain a general limitation clause. Instead it incorporates internal limitations within each constitutional provision. Judicial interpretation of the constitutional text has been very slow since the 2005 Constitution came into force. This can be attributed in...

The use of e-procurement in South African public procurement law: Challenges and prospects, pgs 39 - 47
Volume 22 - 2018 Allison, Anthony

The debate on the use of electronic methods to create a more efficient public procurement system has featured prominently in the international public procurement arena. To date many countries have implemented e-procurement procedures and have promulgated legislation in order to legally regulate these methods. In South Africa, however, the...

Time for the tide to change for rules of engagement in labour law: A proposal for effective wage dispute resolution, pgs 48 - 73
Volume 22 - 2018 Nkoane, Paul

Labour laws are enacted essentially to protect and advance workers' rights. The workers' rights espoused in the Constitution and the Labour Relations Act comprise the right to strike. It stands to reason that strikes have become an expedient tool in labour relations. However, strikes in certain sectors of the...

Academic freedom, institutional autonomy and the University of Malawi: An analysis of some trends and prospects, pg 127
Volume 21 - 2017 Nkhata Jo, Mwiza

The University of Malawi is the oldest and, arguably, the most prestigious university in Malawi. It was established immediately after the country became independent and has gone on to train a multitude of prominent Malawians in various disciplines. This article's focus is on academic freedom and institutional autonomy in...

An evaluation of Kenya's parallel legal regime on refugees, and the courts' guarantee of their rights, pg 42
Volume 21 - 2017 Nanima, Robert Doya

This article evaluates the existence of a parallel refugee regime in Kenya. The Executive decides on policies and oversees the enactment of laws to regulate the inflow of refugees under the encampment policy. The Judiciary hands down decisions that ensure that only policies and laws, which uphold human rights...

Between separation of powers and justiciability: Rationalising the Constitutional Court's judgment in the Gauteng E-tolling litigation in South Africa, pg 1
Volume 21 - 2017 Okpaluba, Chuks; Mhango, Mtendeweka

Although the question in both National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) (SANRAL 1) and Magidiwana and another v President of the Republic of South Africa and others 2013 (11) BCLR 1251 (CC) (Marikana 1) was whether the apex court could make the...

Development and regulation of tourism for mutual benefit in the Southern African Development Community (SADC), pg 84
Volume 21 - 2017 Lehloenya, Palollo Michael

The growing significance of tourism in the global economy and its capacity to create jobs for thousands of unskilled workers has earned it a reputation as an effective means of alleviating poverty and generating economic growth for developing countries. In the Southern African Development Community (SADC) region, however, efforts...

Higher education access in South Africa for students with criminal records, pg 25
Volume 21 - 2017 Mugume, Taabo

Research shows that education is an important resource in lowering recidivism and increasing life opportunities for previously incarcerated individuals. Therefore, access to higher education is essential for re-integration into communities. This article explores the mechanisms that South African universities have in place to encourage access for students with criminal...

Judicial review of administrative and executive decisions: Overreach, activism or pragmatism? pg 201
Volume 21 - 2017 Sewpersadh, Prenisha; Mubangizi, John C

The right to administrative action that is lawful, reasonable and procedurally fair is guaranteed under the South African Constitution (section 33). The Promotion of Administrative Justice Act (PAJA) was promulgated to give effect to this constitutional right. Its provisions, however, do not apply to executive decisions. Rather, executive decisions...

South Africa's water crisis: The idea of property as both a cause and solution, pg 176
Volume 21 - 2017 Viljoen, Germarie

It is approaching 20 years since South Africa's legal transformation of its water regulatory framework. With the legal transformation, the traditional exclusive private law ownership-object approach to water resources evolved into a rights based approach. This transformation affected the property rights regime of South Africa whereby water resources are...

State obligations in international law related to the right to an adequate standard of living for persons with disabilities, pg 68
Volume 21 - 2017 Basson, Yvette

The issue of the right to an adequate standard of living has received renewed scrutiny in recent years. Further, the rights of persons with disabilities have become the focus of a number of international instruments in an attempt to improve the living conditions of persons with disabilities. The intersection...

Sustainable development of oil sands projects in sub-Saharan Africa: Lessons from the governance regime for the Alberta Oil Sands, pg 97
Volume 21 - 2017 Nwapi, Chilenye

This article examines the governance regime for oil sands development in the Canadian province of Alberta with a view to highlighting what lessons Sub-Saharan African countries with oil sands deposits may draw from it for the sustainable development of their oil sands. Although investments in oil sands projects have...

The readiness of South African law and policy for the pursuit of Sustainable Development Goal 11, pg 239
Volume 21 - 2017 Du Plessis, Anel

This article notionally questions the readiness of existing South African law and policy for the country's pursuit of 'sustainable cities' as per Goal 11 of the Sustainable Development Goals (SDGs). The expectations created by SDG 11 are discussed and subsequently compared with the scope and focus of current law...

A comparative analysis of the United Nations Convention on the Rights of Persons with Disability and the African Draft Protocol on the Rights of Persons with Disabilities, pg 153
Volume 21 - 2017 Kwadwo, Appiagyei-Atua

The article uses four different types of rights that are identified in the United Nations Convention on the Rights of Persons with Disability (CRPD) to test the extent to which the Draft Protocol of the African Charter on Human and Peoples' Rights on the Rights of Persons with Disabilities...

Fundamental rights and democratic contestation: Reflections on freedom of assembly in an unequal society, pg 221
Volume 21 - 2017 Botha, Henk

In this article, I argue that the impoverished conception of freedom of assembly displayed in legislation and case law, and its neglect in academic literature, has to do with a set of dominant understandings of democracy. These understandings are structured in terms of certain hierarchical oppositions: between institutional and...

An overview of South Africa's institutional framework in promoting women's right to development, pg 46
Volume 20 - 2016 Stevens, Clydenia; Ntlama, Nomthandazo

The article provides a brief overview of the Chap 9 institutions with particular reference to the South African Human Rights Commission and the Commission for Gender Equality as established in terms of South Africa's 1996 Constitution in the quest to promote women's right to development. The focus on these institutions...

Does the South African Pension Funds Adjudicator perform an administrative or a judicial function? pg 20
Volume 20 - 2016 Mhango, Mtendeweka

This article examines the powers, role and functions of the Pension Funds Adjudicator with a view to determine whether the Adjudicator's functions are administrative or judicial in nature. In recent years, South African courts have disagreed on this question and have offered different interpretations of the nature of the functions...

Exploring the citizen inclusiveness and micro-economic empowerment aspects of regional integration in Africa, pg 91
Volume 20 - 2016 Lehloenya, Palallo Michael; Mpya, Maropeng Norman

A significant number of regional blocs have emerged on the African continent which often cite the liberation of their Members' citizens from poverty and hardship as one of their main goals. In reality, however, there have been numerous instances where the actions of these groupings and their Members have raised...

Formation of a government in Lesotho in the case of a hung parliament, pg 174
Volume 20 - 2016 Nyane, Hoolo

The reform of the electoral system in Lesotho from the constituency based to a mixed one has affected not only the structure of constitutional democracy but also the dynamics of parliamentary politics. Prior to the reforms, political contestation - which was largely majoritarian '“ was aimed at an outright...

Integrating the traditional with the contemporary in dispute resolution in Africa, pg 154
Volume 20 - 2016 Aiyedun, Adenike; Ordor, Ada

Traditional justice systems remain and thrive in various forms on the African continent, serving large populations located mainly in rural communities.  Customary law is not static and, consequently, changes in traditional perceptions of substantive and procedural justice have over time informed the articulation of concepts, such as, the restatement...

The application of the doctrine of res judicata in political rights cases: National Freedom Party v Electoral Commission and Others (2016), pg 192
Volume 20 - 2016 Dube, Angelo; Machaya, Musavengana

The South African Constitution provides for the right of every citizen to free and fair regular elections. This right is often enjoyed through the instrumentality of political parties, which are the vehicles through which most candidates come to hold office. This constitutional right is further given effect to by...

The role of traditional leaders in Zimbabwe: Are they still relevant? pg 69
Volume 20 - 2016 Chigwata,Tinashe

In Zimbabwe, 67 per cent of the population resides in rural (communal) areas where the institution of traditional leadership, rather than modern state structures, is the immediate form of government. The institution of traditional leadership plays a crucial role in the governance of these rural communities. Its role, however, ...

The state of political inclusion of ethnic communities under Kenya's devolved system, pg 131
Volume 20 - 2016 Nyabira, Ben Christopher; Ayele, Zemelak

Inter-ethnic relations in Kenya have been characterised by deep animosity and suspicion. This is mainly due to the political and economic exclusion of various ethnic communities of the country both before and after Kenya became an independent country. The political exclusion was exacerbated as the country increasingly became centralised, leading...

Confronting selected difficulties associated with the enforcement of res judicata in South Africa with reference to Samancor v Rham Equipment (532/13) [2014] ZASCA 66, pg 215
Volume 20 - 2016 Chitimira, Howard

Estoppel prohibits a person (asserter) from asserting something contrary to what is implied by the previous action, conduct or statement of that person or by a previous pertinent judicial determination regarding such action, conduct or statement. There are various types and/or principles of estoppel that govern the application and...

Dismissal of an employee at the instance of a client: Revisiting Nape v INTCS Corporate Solutions (Pty) Ltd in the context of the Labour Relations Amendment Act 6 of 2014, pg 106
Volume 20 - 2016 Nkhumise, Ramokgadi Walter

This article interrogates the challenges related to employees whose services have been procured through temporary employment services. More recently there have been some serious efforts by the legislature to regulate labour broking in an attempt to protect employees whose services are procured through temporary employment services. The purpose of this...

Geography, marginalisation and the performance of the right to have access to health care services in Johannesburg, pg 1
Volume 20 - 2016 Pieterse, Marius

Rights are not exercised in the abstract or in a vacuum, but are rather performed in a variety of physical contexts and settings, and through a variety of physical actions and interactions. It is therefore essential that laws and policies aimed at realising rights pay attention to their geographical and...

Revisiting the participation of traditional leaders in municipal councils in South Africa, pg 200
Volume 20 - 2016 Mathenjwa, Mbuzeni; Makama, Porsche

The role of traditional leaders in governance dates back to long before the colonial conquest of South Africa, when the chief as head of indigenous African government employed traditional councillors as a means of reaching people through the traditional councils. After the onset of colonial conquest, African leaders were...

An investigation into the causes of violent strikes in South Africa: Some lessons from foreign law and possible solutions, pg 211
Volume 19 - 2015 Tenza, Mlungisi

The incidence of violence during strikes has become a problem not only for employers but also for the economy.  It remains difficult to address the issue of violent strikes in South Africa using the existing labour law. The bargaining system does not make provision for mechanisms that can be used to deal with the issue of strike related violence. The eruption of violence during a strike affects members of society who are in no way part of the dispute between the employer and the union. It seems that the system somehow fails the people of South Africa when it comes to strikes and consequential violence. The question this article considers is whether and how the law may be used to address violence during strike action...

An overview analysis of selected challenges in the enforcement of the prohibition of insider trading and market manipulation in the European Union and South African regulatory frameworks, pg 94
Volume 19 - 2015 Chitimira, Howard

Cross-border trading in securities has caused a great number of challenges for various national regulators, especially with regard to the enforcement of market abuse laws. Accordingly, the need for strong co-operation and co-ordination between such regulators became crucial and inevitable for the purpose of combatting market abuse in the European...

Book review: Socioeconomic rights in South Africa: Symbols or substance? pg 261
Volume 19 - 2015 Durojaye, Ebenezer

In this contribution, the author reviews the book, Socioeconomic Rights in South Africa: Symbols or Substance? Edited by Malcom Langford, Ben Cousins, Jackie Dugard and Tshepo Madingozi and published in 2014 by Cambridge University Press.

Institutionalising a military judicial office and improving security of tenure of military judges in South Africa, pg 79
Volume 19 - 2015 Tshivhase, Aifheli Enos

Military justice systems are facing some difficult questions in many parts of the world. South Africa is not an exception. The biggest challenge probably relates to the judicial independence of military courts. This article advances the idea of institutionalisation of a military judicial office. It reviews some global trends...

Insufficient access to substance abuse treatment centres for illicit drug users and its potential effect on a foetus: A breach of the right to access healthcare services, pg 65 Page-start: 65 Page-end:
Volume 19 - 2015 Lutchman, Salona

This article argues that the state is in breach of article 27 of the Constitution, specifically the right to access health care services, in that it has failed to provide sufficient free substance abuse treatment centres and facilities in South Africa for abusers of illicit drugs. It is argued...

Kenya's implementation of the Smuggling Protocol in response to the irregular movement of migrants from Ethiopia and Somalia, pg 29
Volume 19 - 2015 Barasa, Noela; Fernandez, Lovell

This article studies the mixed movement of Somalis and Ethiopians to Kenya. It examines the modalities related to the smuggling of migrants and discusses economic exploitation of migrants by organised criminal networks, including corrupt Kenyan border officials. The criminalisation of migrants who are illegally present in Kenya is assessed...

Refugees and asylum seekers: Barriers to accessing South Africa's labour market, pg 232
Volume 19 - 2015 Kavuro, Callixte

This article demonstrates that the employment of those who are seeking or granted asylum in South Africa is very challenging. The challenges range from ill-sentiment towards non-citizens to legal and procedural barriers, such as, measures that are taken by different role players to protect citizens with regards to accessing...

Revisiting legal harmonisation under the Southern African Development Community Treaty: The need to amend the Treaty, pg 127
Volume 19 - 2015 Shumba, Tapiwa

Internationally, there is agreement that conflicts and divergences arising from the laws of different States in matters relating to international trade constitute obstacles to the development of world trade. In southern Africa, diverse, fragmented, archaic and at times inaccessible, laws are major barriers to the free flow of goods in...

The Investor-State Dispute Resolution Forum under the SADC Protocol on Finance and Investment: Challenges and opportunities for effective harmonisation, pg 175
Volume 19 - 2015 Ngobeni, Lawrence; Fagbayibo, Babatunde

As a critical element of enhancing the investment climate in Southern Africa, the Southern African Development Community (SADC) Protocol on Finance and Investment (FIP) requires Member States to harmonise their investment policies, laws and practices with its provisions, with the objective of creating a SADC investment zone. The FIP...

The unresolved ethnic question in Uganda's district councils, pg 107
Volume 19 - 2015 Singiza, Douglas Karekona and de Visser, Jaap

Local democracy has great potential to promote co-operation and respect across the political spectrum. By its very design, local democracy may produce different results in different jurisdictions, resulting in political diversification. After elections, local political leaders, irrespective of their political or ethnic inclination, must work together under the broad...

The Zimbabwe Human Rights Commission: Prospects and challenges for the protection of human rights, pg 148
Volume 19 - 2015 Chiduza, Lovemore

In order to ensure the domestic protection of human rights, the Constitution of Zimbabwe establishes the Zimbabwe Human Rights Commission (ZHRC). In accordance with the Principles Relating to the Status of National Institutions (The Paris Principles) the Constitution mandates the ZHRC with a primary role of promoting and protecting human rights at all levels of society. The aim of this article is to look at the prospects and challenges of the ZHRC in its quest to promoting and protecting human rights...

Using courts of law to tackle poverty and social exclusion: The case of post-2010 Kenya, pg 193
Volume 19 - 2015 Oloka-Onyango, Joe

While it took over 20 years of ferocious street action, post-election violence and several abortive efforts at enactment, the arrival of Kenya's 2010 Constitution was well worth the long and conflicted wait.  A number of major changes introduced stand out for consideration, the first being the amendments to the power...

In the face of judicial deference: Taking the minimum core of socio-economic rights to the local government sphere, pg 1
Volume 19 - 2015 Fuo, Oliver and Du Plessis, Anel

This article advances an alternative perspective on the inception of the concept of a minimum core content for socio-economic rights in the South African context.  The authors reason that despite judicial resistance to adopt, develop and use the idea of a minimum core content in the courts' evaluation of...

A critique of the protection afforded to non-standard workers in a temporary employment services context in South Africa, pg 334
Volume 18 - 2014 Tshoose, Clarence and Tsweledi, Benjamin

Atypical employment relations, such as part-time work, temporary employment services, short-term, contingent work and independent contracting, have become increasingly prominent ways of organising work in recent years. Given its flexibility, labour broking is an international phenomenon, indicative of the needs of a rapidly changing global village, where industries expand...

After the Novartis judgment - 'Evergreening' will never be the same again! pg 305
Volume 18 - 2014 Vawda, Yousuf A

This article traces the genesis of Indian patent law with regard to the protection of product patents for medicines, reviews the changes brought by the TRIPS Agreement and India's measures to become compliant with this international regime, reviews the legal and policy arguments raised in the Novartis case, and...

Assessing the nature of competition law enforcement in South Africa, pg 136
Volume 18 - 2014 Prins, Deon and Koornhof, Pieter

There has been speculation in South African law in recent years regarding the nature and scope of the powers and duties conferred on the local competition authorities. This is due in part to divergent opinions in case law surrounding the nature and scope of the powers of the competition...

Before the camel's back is broken: How Malawi provides succour to employers by jettisoning the payment of a severance allowance and pension benefits at the same time, pg 164
Volume 18 - 2014 Mhango, Mtendeweka

This article discusses the problems surrounding the double payment of a severance allowance and private pension benefits in Malawi. It starts by discussing the case law developments following the enactment of the Employment Act 2000 and its subsequent amendments, which were repeatedly struck down by the courts. The article...

Contemporary trends in provincial government supervision of local government in South Africa, pg 178
Volume 18 - 2014 Mathenjwa, Mbuzeni

The purpose of this article is to establish whether the practice of provincial government supervision of local government corresponds to the legal position and whether, perhaps, adjustments are required to bring the practice of supervision in line with the established legal position. The article is based on law as...

Development as a right in Africa: Changing attitude for the realisation of women's substantive citizenship, pg 224
Volume 18 - 2014 Ozoemena, Rita and Hansungule, Michelo

The right to development is entrenched in Africa-based international human rights instruments. Yet, the majority of African people suffer great indignity due to poverty occasioned by inequality and disempowerment. The group most affected are women and their vulnerability is further exacerbated where the majority of them do not enjoy...

Devolution of power in Zimbabwe's new constitutional order: Opportunities and potential constraints, pg 289
Volume 18 - 2014 Moyo, Philani and Ncube, Cornelias

Zimbabwe adopted a new constitution in May 2013 replacing the negotiated transitional Lancaster House constitution. This new constitution introduced devolution of power as a new governance model for Zimbabwe to replace deconcentration on the premise that devolution is a more democratic, citizen-centred, participatory, more transparent, accountable and locally relevant...

Driving corporate social responsibility through Black economic empowerment, pg 58
Volume 18 - 2014 Kloppers, Henk

Black economic empowerment (BEE) is one of the primary instruments in the government's attempt to redress the legacy of apartheid and is ultimately aimed at empowering Black South Africans to fully participate in all spheres of society in order to address economic inequalities. The BEE framework attempts on a...

Human rights, core labour standards and the search for a legal basis for a trade-labour linkage in the multilateral trade regime of the World Trade Organisation, pg 240
Volume 18 - 2014 Warikandwa, Tapiwa V and Osode, Patrick C

The multilateral rules which regulate international trade do not effectively recognise a need to protect core labour standards in trade. The omission of a trade-labour linkage clause in the legal framework of the World Trade Organisation (WTO) compromises social justice. The incorporation of such a clause would advance efforts...

Reflections on the rejection of the right to sexual orientation by the institution of traditional leadership: Lessons from South Africa, pg 80
Volume 18 - 2014 Ntlama, Nomthandazo

The quest for the removal of the right to sexual orientation in the Constitution of the Republic of South Africa by the institution of traditional leadership has generated debate on the regulation of traditional authority in line with the foundational values of the new dispensation. The debate, among others, ...

Regional integration in the area of intellectual property: The case for Southern African Development Community involvement, pg 317
Volume 18 - 2014 Nkomo, Marumo

The Southern African Development Community (SADC) has played an important role in efforts to integrate the economies of its Members. This has been most prominent in the context of trade in goods and, most recently, services. While the SADC Protocol on Trade makes perfunctory reference to the need for its Members to comply with the Agreement on Trade Related Aspects of Intellectual Property Rights, there are no substantive or operational provisions outlining the proposed contribution of the SADC to this end. As cross-border trade and economic integration within the region increase, the existing territorial approach to intellectual property is becoming more and more inadequate. The existing regional intellectual property organisations in Africa have sought to bring a regional approach to intellectual property on the continent. African Regional Intellectual Property Organisation, the dominant forum as far as SADC countries are concerned, operates in a fragmented manner which can be seen to frustrate the business simplification objective of regional integration. Certain institutional limitations also call into question the suitability of the body as an appropriate platform for the advancement of regional integration in the context of intellectual property. This article makes a case for the participation of the SADC...

Rights discourse and practices, everyday violence and social protests: Who counts as subject and whose lives are real in the neo-colonial South African nation state? pg1
Volume 18 - 2014 Stewart, Linda

This article seeks to illustrate the disjunction between the lived realities of marginalised, displaced and impoverished collective bodies in the neo-colonial South African nation state and the language, politics and practices of human or constitutional rights that represent them.

The article commences with a discussion of the relationship...

South Africa's post-apartheid microcredit-driven calamity, pg 92
Volume 18 - 2014 Bateman, Milford

Although once universally lauded in international development community circles as a 'magic bullet", in recent years the concept of microcredit has been increasingly recognised as having had a number of seriously adverse impacts in precisely those countries, regions and localities wherein it has gained the strongest foothold. This paper...

The Amended Government Procurement Agreement: Challenges and opportunities for South Africa, pg 202
Volume 18 - 2014 Kollamparambil, Umakrishnan

The amended Plurilateral Agreement on Government Procurement, aimed at liberalising and increasing transparency in procurement markets, was signed by 42 countries in March 2012. South Africa has not been open to GPA because of the preferential procurement policy envisaged in its Constitution. This article discusses the characteristics of South...

The political question doctrine in Uganda: A reassessment in the wake of CEHURD, pg 264
Volume 18 - 2014 Dennison, Brian D

The political question doctrine obliges courts to set aside certain government actions and decisions from judicial review.  The doctrine emerged in the United States in the early 19th Century.  It first appeared in Ugandan jurisprudence in Ex parte Matovu (1966).  After Matovu, the doctrine kept a relatively low profile...

The SADC regional bloc: What challenges and prospects for regional integration? pg 22
Volume 18 - 2014 Mapuva, Jephias; Muyengwa-Mapuva, Loveness

Regional integration has been a global phenomenon seeking to strengthen the economic performance of countries within a specific bloc. In Africa, different regional economic blocs have manifested themselves as fronts for preferential trade, a bulwark against tariff regimes, as well as legal forums for co-operation and trade liberalisation. The...

Divorce and the law of Khul: A type of no fault divorce found within an Islamic legal framework, pg 37
Volume 18 - 2014 Booley, Ashraf

The non-recognition of Muslim marriages in South Africa goes back as far as the case of Seedat's Executors v The Master (Natal)where the Appellate Court in 1917 expressly stated that 'with us marriage is the union of one man with one woman, to the exclusion, while it lasts, ...

Guidelines and principles on imprisonment and the prevention of torture under the African Charter on Human and Peoples' Rights: How relevant are they for South Africa? pg 363
Special Issue 2013 Muntingh, Lukas

It must be regarded as a peculiarity that the African Charter on Human and Peoples' Rights makes no specific mention of prisoners' rights and that these rights have to be inferred from overall reading of the Charter, and in particular Articles 4-6. There also does not exist in respect of...

How international human rights law influences domestic law in Africa, pg 378
Special Issue 2013 Killander, Magnus

International law plays an important role in framing the content of national law. This is evident with regard to norms of environmental law, crime prevention and human rights, to name just a few areas where norms adopted by global and regional organisations influence, and to a certain extent harmonise, national...

'One moment of extreme irresponsibility': Notes and comments on Humphreys v S and the volitional component of dolus eventualis in the context of dangerous or irresponsible driving, pg 64
Volume 17 - 2013 Van der Merwe, Hermanus

The 2013 judgment of the Supreme Court of Appeal in Humphreys v The State has provided a measure of clarity as regards the application of the principles of dolus eventualis, particularly the volitional component thereof in the context of dangerous or irresponsible driving. The 2013 judgment of the Supreme Court...

Boko Haram: An enquiry into the socio-political context of Nigeria's counter-terrorism response, pg 226
Volume 17 - 2013 Badejogbin, Oluwatoyin

From small reclusive beginnings steeped in pietistic Salafism, Boko Haram has evolved into a real threat to national security in Nigeria. A factor that cannot be overlooked in the sect's emergence and transformation is the regrettable history of ethno-religious differences that are now perhaps at an all-time high in...

Derogation from constitutional rights and its implication under the African Charter on Human and Peoples' Rights, pg 78
Volume 17 - 2013 Ali, Abdi Jibril

Although the African Charter on Human and Peoples' Rights does not include a derogation clause, most States parties' constitutions contain derogation clauses. It is argued that these constitutions, to the extent that they contain derogation clauses, do not comply with the African Charter on Human and Peoples' Rights.

...

From a cat into a lion? An overview of the progress and challenges of the African human rights system at the African Commission's 25 year mark, pg 298
Volume 17 - 2013 Viljoen, Frans

The roots of the African human rights system lie in the African Charter on Human and Peoples' Rights. In many respects, the Charter came about as a compromise between a genuine attempt to curtail state sovereignty in order to enhance rights protection, on the one hand, and efforts to...

Human rights litigation using international human rights law: The IHRDA experience, pg 504
Volume 17 - 2013 Theu, Bright

In this rather short article, I share a few experiences of the Institute for Human Rights and Development in Africa (IHRDA) in advancing human rights using the African Charter on Human and Peoples' Rights and related instruments through litigation. By reference to a sampling of cases litigated by, or...

Litigating human rights in South Africa: The experience of the Centre for Applied Legal Studies, pg 444
Volume 17 - 2013 Hardy, Kathleen

The Centre for Applied Legal Studies ('CALS') has been involved in litigation aimed at the protection of human rights for more than three decades. CALS has witnessed and experienced the oppressive system of apartheid, worked in South Africa through the transformation into a new democracy, and continues its work...

Litigating socio-economic rights in domestic courts: The Kenyan experience, pg 419
Volume 17 - 2013 Arwa, Jotham Okome

The first Kenyan Constitution, which was negotiated at independence, incorporated many of the conventional civil and political rights, but was conspicuously silent on socio-economic rights. This created a situation where very little attention was given to socio-economic rights and culminated in a socio-economic crisis. The socio-economic situation in Kenya...

Phishing in the World Wide Web ocean: Roestof v Cliffe Dekker Hofmeyr Inc: A case of cyber laundering through an attorney's trust account, pg 49
Volume 17 - 2013 Hamman, Abraham

This article explores the situation where money was fraudulently transferred out of the account of an attorney via a phishing scam and then laundered through the trust account of a well-known firm of attorneys. The legal profession has become a target for money launderers to clean their ill-gotten gains...

Pornography is going online: The harm principle in Dutch law, pg 1
Volume 17 - 2013 Maris, Cees

This article analyses the developments in Dutch law regarding sexual morality, in particular pornography, in view of the diverse positions in the philosophical debate on the relation between law and sexual morality.

This article analyses the developments in Dutch law regarding sexual morality, in particular pornography, in view of...

Poverty as injustice, pg 273
Volume 17 - 2013 Brand, Danie; De Beer, Stephan; De Villiers, Isolde; and Van Marle, Karin

In this exploratory article the authors focus on a tendency in discourses on poverty to reduce poverty to a practical problem, and efforts to find solutions to poverty to practical, instrumentalist (social) scientific thinking. Working from a theoretical position informed by, among others, Constable, Bergowitz, Foucault, De Certeau, Friedman...

Securing land rights in rural communities of Nigeria: Policy approach to the problem of gender inequality, pg 253
Volume 17 - 2013 Madu, C Jonathan

A society's ability to define and, within a broad system of the rule of law, establish institutions that can enforce property rights to natural assets has been found to be a critical precondition for social and economic development. The Nigerian Land Use Act of 1978 was meant to usher...

Seven years in business: Evaluating developments at the African Court on Human and Peoples' Rights, pg 317
Volume 17 - 2013 Nmehielle, Vincent O

This article provides an early evaluation of the work of the African Court on Human and Peoples' Rights in the first seven years of its existence. It interrogates developments at the Court within this period in terms of how the Court has approached its mandate. The article makes clear...

Special interest councillors in Zimbabwe: A review of law and practice in terms of the 2013 Constitution, pg 157
Volume 17 - 2013 De Visser, Jaap and Mapuva, Jephias

Local governance in Zimbabwe has a chequered history. Despite high hopes for democratic local governance on the attainment of political independence in 1980, it has often defied democratic practice and is yet to bring tangible benefits to communities. Attempts at democratising local governance through the amendment of local government...

States' Obligations in Relation to Access to Medicines: Revisiting Kenyan High Court Decision in P.A.O and Others v Attorney General and Another, pg 24
Volume 17 - 2013 Durojaye, Ebenezer and Mirugi-Mukundi, Gladys

This paper examines the decision of the Kenyan High Court in P.A.O and others v Attorney General and another in relation to the nature of states' obligations to ensure access to medicines for their people.

Recently a Kenyan High court in P.A.O and others v Attorney General and another...

The approaches of the African Commission to the right to health under the African Charter, pg 393
Volume 17 - 2013 Durojaye, Ebenezer

This article examines the right to health guaranteed under the African Human Rights system and the approaches the African Commission has adopted in interpreting the content of this right. The article starts by examining in detail the provisions of the right to health under international human rights law and...

The European Union as a model for regional integration in the Southern African Development Community: A selective institutional comparative analysis, pg 457
Volume 17 - 2013 Saurombe, Amos

The Southern African Development Community (SADC) copied the European Union (EU) model of integration. The creation of many regional integration initiatives in Eastern and Southern Africa has been based on the EU model and the SADC's admiration for this format of integration is undisputed. First, this paper gives a...

The relevance of a multidisciplinary interpretation of selected aspects related to women's sexual and reproductive health rights in Africa, pg 177
Volume 17 - 2013 Fokala, Elvis

The inappropriate social status generally attributed to women in most African communities has directly affected their autonomy regarding their right to sexual and reproductive health. Also, this status and their subsequent lack of sexual autonomy has not only increased their risk of sexual health problems, but has also decreased...

The right to adequate housing in the African regional human rights system: Convergence or divergence between the African Commission and South African approaches, pg 342
Volume 17 - 2013 Chenwi, Lilian

The African Charter on Human and Peoples' Rights makes no mention of the right to housing. Notwithstanding this limitation, the African Commission on Human and Peoples' Rights has creatively, and through applying the principle of interdependence of rights, interpreted other rights in the Charter to include a right to...

The right to basic education, the South African constitution and the Juma Musjid case: An unqualified human right and a minimum core standard, pg 477
Volume 17 - 2013 Simbo, Chiedza

Whilst adjudicating socio-economic cases brought before it, the Constitutional Court has stated more than once that the minimum core concept devised by international law is not applicable when interpreting socio-economic rights in the South African Constitution. Based on the qualified nature of the rights previously interpreted by the Constitutional...

The social model of disability, rights discourse and the impact of South Africa's Education White Paper 6 on access to the basic education system for persons with severe or profound intellectual impairments, pg 202
Volume 17 - 2013 Du Plessis, Meryl

This article considers the contribution of the social model of disability and rights discourse to the advancement of education to persons classified as having severe or profound intellectual impairments. It is argued that while the rhetorical significance of both the social model and rights discourse are not to be...

Uganda's civil courts and the administration of military justice: An appraisal of their jurisprudence on selected issues, pg 111
Volume 17 - 2013 Naluwairo, Ronald

This article appraises the jurisprudence of Uganda's civil courts on selected issues concerning the administration of military justice.

In the last two decades, Uganda's civil courts have pronounced themselves on a number of issues concerning the administration of military justice in the country. These issues range from the...

Who is watching the watchers? A critical assessment of the Independent Police Investigative Directorate's prospects of investigating misconduct in the South African Police Service, pg 132
Volume 17 - 2013 Vawda, Yousuf A and Mtshali, Mangaliso

This article examines whether the recently established Independent Police Investigative Directorate (IPID) has the potential to be an effective oversight mechanism to ensure accountability in respect of SAPS. Recent events have again turned the public spotlight on the conduct of police officers in the execution of their duties. The...

A foreskin too far? Religious, medical and customary circumcision and the Children's Act 38 of 2005 in the context of HIV/AIDS, pg 69
Volume 16 - 2012 Sloth-Nielsen, Julia

This article analyses the legal framework surrounding male circumcision (infant and youth) in South Africa, having explained the requirements of international human rights law. Provincial legislation regulating traditional circumcision is detailed, followed by an explanation and analysis of the relevant provisions of the Children's Act 38 of 2005 and...

Application of the African Charter by African sub-regional organisations: Gains, pains and the future, pg 49
Volume 16 - 2012 Ebobrah, Solomon T

When the African Charter on Human and Peoples' Rights was adopted in 1981, its founding fathers may have envisaged and hoped that the spirit and content of the Charter would seep down into municipal legal systems for the benefit of African citizens. However, it is doubtful if even the...

Between tax competition and tax harmonisation: Coordination of value added taxes in SADC member states, pg p 119
Volume 16 - 2012 Letete, Puseletso

This paper examines strategies which can be adopted for achieving regional integration through the harmonisation of value added tax (vat) laws in Southern Africa. The paper looks into the extent to which harmonisation of vat in SADC member countries can be used as one of the tools towards economic...

Defining the term basic education in the South African Constitution: An international law approach, pg 162
Volume 16 - 2012 Simbo, Chiedza

This paper locates the term basic education in international law and recognises it as a term defined by the World Declaration on Education for All. The paper argues that the term basic education provided by the South Africa Constitution connotes the quality of education that the government should provide...

Democracy and pretend democracies in Africa: Myths of African democracies, pg 139
Volume 16 - 2012 Uwizeyimana, Dominique E

Based on the analysis of a number of printed and electronic media, this paper rejects the myth of a special kind of African democracy as well as the claim perpetrated by some African leaders that western liberal democracy is not compatible with African traditions.

Literature shows that democracy as...

Gender-specific HIV policies and programmes at South African workplaces, pg 89
Volume 16 - 2012 Vettori, Stella

The purpose of this article is to explore how legislation and common law can be creatively interpreted in the light of the Constitution, soft law and international law so as to create legal duties on the part of employers to implement gender-specific policies and practices in the fight against...

People want to work, yet most have to labour: Towards decent work in South African supply chains, pg 1
Volume 16 - 2012 Von Broembsen, Marlese

The rights of labour have been described as 'claims of reciprocity for the reality of being labour'. For over 12 million unemployed South Africans the possibility of labour is denied, and those who labour informally increasingly enjoy limited 'claims of reciprocity' despite wide-reaching labour and employment laws and the...

Protecting inmates' dignity and the public's safety: A critical analysis of the new law on medical parole in South Africa, pg 185
Volume 16 - 2012 Albertus, Chesne

This article discusses the new medical parole system introduced by the Correctional Services Amendment Act 5 of 2011. It seeks to establish whether the new system is capable of giving effect to inmates' right to dignity and the public's right to safety. Specific questions are posed to ascertain the...

The narrative of vulnerability and deprivation in protection regimes for the internally displaced persons (IDPs) in Africa: An Appraisal of the Kampala Convention, pg 219
Volume 16 - 2012 Juma, Laurence

Domestic legal systems are often incapable of providing protection to internally displaced persons (IDPs) to the level warranted by international and regional standards. This article suggests that one of the reasons for this anomaly is that international and regional protection regimes respond to the narrative of vulnerability and depravation...

The state of civil society participation in Parliament, pg 29
Volume 16 - 2012 Muntingh, Lukas

This article explores the extent of public participation in the legislative, oversight and accountability mandates of Parliament. From the analysis of data on public participation in the work of Parliament the key conclusion is drawn that the current state of public participation is almost exclusively focussed on the legislative...

Towards a human rights-based approach to trade and investment in Africa in the context of globalisation, pg 101
Volume 16 - 2012 Mubangizi, John C

This article explores the implications of globalisation in Africa, in the specific context of human rights, trade and investment. It begins by discussing the meaning of, and the relationship between, human rights and globalisation. The article also explores the relationship between globalisation, trade and investment on one hand and...

Constructing the Amicus Curiae Procedure in Human Rights Litigation: What can Uganda Learn from South Africa? pg 199
Volume 16 - 2012 Mubangizi, John C and Christopher Mbazira

The amicus curiae procedure is gradually entrenching itself as part of judicial and legal practice. Human rights activists and advocates the world over are increasingly using this procedure in both domestic and international courts as a tool for influencing the outcomes of judicial proceedings.

The amicus curiaeprocedure is...

Chewing more than one can swallow: The creation of new districts in Uganda, pg 19
Volume 15 - 2011 Singiza, Douglas Karekona and Jaap de Visser

As is the case in many other developing countries, Uganda's decentralisation programme is designed to promote grassroots democracy and participatory development. However, it is argued in this paper that it is also meant to accommodate Uganda's diverse identities and culture.

Uganda has undergone a process of decentralisation in which...

Fiscal autonomy of urban councils in Zimbabwe: A critical analysis, pg 37
Volume 15 - 2011 Marumahoko, Sylvester and Yonatan Tesfaye Fessha

There is a growing realisation that urbanisation has overstretched the ability and efforts of central governments to serve from the centre, giving rise to the search for a robust decentralisation policy that vests urban local government with some level of autonomy. However, efforts to capacitate urban councils through the...

In our common interest: Liability and redress for damage caused to the natural environment during armed conflict, pg 90
Volume 15 - 2011 Van der Poll, Letetia and Ashraf Booley

Although not generally accorded primary consideration during armed conflict, a vast number of provisions aimed at protecting the natural environment in times of war exist under international law. This article critically and comprehensively examines the challenges presented in terms of liability and redress for damage caused to the natural...

Local government in Ethiopia: Still an apparatus of control? pg 133
Volume 15 - 2011 Ayele, Zemelak

Historically, local authorities in Ethiopia enjoyed wide political, administrative, judicial, and financial autonomy. However, from the 1850s a process of territorial expansion and centralisation was initiated in the country.

The centralisation process reached its zenith under the rule of Colonel Mengistu in the 1980s. This centralisation gradually diminished the autonomy...

Privatisation, human rights and security: Reflections on the Draft International Convention on Regulation, Oversight and Monitoring of Private Military and Security Companies, pg 182
Volume 15 - 2011 Juma, Laurence

Efforts to establish regulatory frameworks for private military/security companies (PMSCs), driven by public security concerns as well as private interests of the companies themselves, have yielded a number of soft law instruments. Unfortunately, most of these instruments are conditioned by the underlying interests of their promulgators and have therefore...

The Ethiopian Federal Ethics and Anti-Corruption Commission: A Critical Assessment, pg 215
Volume 15 - 2011 Mezmur, Tewodros and Raymond Koen

The Ethiopian FEACC is a dedicated anti-corruption agency, invested with expansive powers to combat corruption in the country. It was established in 2001 in the context of the accelerated internationalisation of anti-corruption law. The mandate of the FEACC is wide, spanning the prevention, investigation and prosecution of all forms...

The hollowing-out of trade union democracy in COSATU? Members, shop stewards and the South African Communist Party, pg 279
Volume 15 - 2011 Hirschsohn, Philip

The South African labour movement's strength has often been attributed to the vitality of local democratic structures and institutionalised mechanisms of worker control that govern unions affiliated to the Congress of South African Trade Unions (COSATU). Workers and shop-stewards continue to participate actively in local union activities and sustain democratic...

The right of access to sufficient water in South Africa: How far have we come? pg 244
Volume 15 - 2011 Heleba, Siyambonga

It has become internationally recognised that the right of access to water is fundamental to life and health. Furthermore, it is indispensable for leading a life of human dignity.The South African Constitution expressly recognises this right.

This paper examines to what extent the South African government has met its...

Using International Human Rights Law to Promote Constitutional Rights: The (Potential) Role of the South African Parliament, pg 311
Volume 15 - 2011 Chenwi, Lilian

Parliaments are guardians of human rights due to their role of representing the people in the management of public affairs. The activities of parliaments cover the entire spectrum of human rights and have an immediate impact on the enjoyment, protection and promotion of rights.

In South Africa, the...

Following the NAFTA Star: SADC land reform and investment protection after the Campbell litigation, pg 59
Volume 15 - 2011 Ndlovu, Lonius

This paper analyses the recent Southern African Development Community (SADC) Tribunal Campbell case from a trade and investment protection perspective. In the Campbell case the issue of the forcible expropriation of farm land without compensation by the Zimbabwean government was raised before the Tribunal in a human rights context.

...

The school funding system and its discriminatory impact on marginalised learners, pg 339
Volume 15 - 2011 Arendse, Lorette

South Africa in reality harbours two separate education systems in its public school domain: one consisting of the former white schools, which is adequately resourced, and the other constituting the township and rural schools entrenched in abject poverty. The current school funding system perpetuates this state of inequality.

On...

Democracy and development in the age of globalisation
Volume 14 - 2010 Mubangizi, John C

Globalisation is one of the leading characteristics of the world today, a world that is striving for development, democracy and the protection of human rights. There is no doubt that the relationship between globalisation and democracy is quite complex. So too is the relationship between globalisation and development.

The...

Extending the frontiers of employment regulation: The case of domestic employment in South Africa
Volume 14 - 2010 Du Toit, Darcy

Domestic workers form one of the most vulnerable and exploited sectors of the workforce in the world economy. In 2002 South Africa became one of relatively few countries to promulgate special legislation aimed at extending protection to domestic workers in the form of Sectoral Determination 7: Domestic Worker Sector, ...

Formal-informal economy linkages: What implications for poverty in South Africa?
Volume 14 - 2010 Valodia, Imraan and Devey, Richard

The idea of dualism in the South African economy, characterized by a 'first' and 'second' economy has come to dominate government thinking in recent years. Using the panel component of the Labour Force Survey (LFS), the authors explore linkages between the formal and informal economy.

Their analysis suggests that...

Free trade or just trade? The world trade organisation, human rights and development (Part 2)
Volume 14 - 2010 Lumina, Cephas

The author critically examines the role of the World Trade Organisation (WTO). In recent years, it is noted, the organisation's agenda of trade liberalisation, its perceived lack of accountability and insensitivity to human rights have attracted intense criticism. It has been asserted that provisions of WTO agreements concerning agricultural...

Inequality and economic marginalisation: How the structure of the economy impacts on opportunities on the margins
Volume 14 - 2010 Philip, Kate

In the face of a long-standing unemployment crisis that increasingly threatens social and economic stability, employment has at last taken centre stage in South African policy, and with this, focus is shifting to the structural constraints on employment creation within the economy. The New Growth Path, approved by Cabinet...

Informal business and poverty in South Africa: Rethinking the paradigm
Volume 14 - 2010 Von Broembsen, Marlese

Analysing policy discourse concerning the informal economy in South Africa, the article explicates in detail the paucity of (even ostensibly pro-poor) market-oriented prescriptions for enterprise development.

The author presents the Sustainable Livelihoods approach as an alternative framework for understanding the informal economy and one more attuned to the realities...

Legislative and executive translation of the right to have access to health care services
Volume 14 - 2010 Pieterse, Marius

It is the task of government to turn the basic rights contained in the Constitution into lived reality for South Africa's people by means of legislation and policy. Marius Pieterse focuses on the crucially important right of access to health care services, examining the extent to which the legislature...

Social protection for developing countries: Can social insurance be more relevant for those working in the informal economy?
Volume 14 - 2010 Smit, Nicola and Mpedi, George

In this article, Nicola Smit and Letlhokwa George Mpedi critically evaluate the appropriateness of social protection, particularly social insurance, for informal economy workers. It addresses the question from a developing country perspective, focusing in particular on Southern Africa.

The authors start by analysing concepts (such as 'informal economy', 'employee', ...

Sour grapes
Volume 14 - 2010 Theron, Jan

Employment creation is a national priority, and it is often said that agriculture is a sector in which jobs should be created. This has not happened. A study of employment in the Hex River Valley confirms this. Although the area under cultivation expanded by half, the number of jobs had...

The curious absence of human rights: Can the WIPO Development Agenda transform intellectual property negotiation?
Volume 14 - 2010 Barratt, Amanda

This article examines international negotiation of global intellectual property protection standards. Developing countries favour more flexible international rules, while developed countries push for higher mandatory protection levels. Developing countries base their positions on primary principles of intellectual property law: its public purpose and its commitment to balancing costs and...

The role of black capital in revitalising land reform in Limpopo, South Africa
Volume 14 - 2010 Aliber, Michael and Themba Maluleke

In this article Aliber and Maluleke grapple with similar questions of social differentiation in their exploratory study of emergent black farmers who lease land on floundering land reform projects. Examining the partnerships between these commercially-oriented lessees and project beneficiaries through a number of case studies, the article discerns how...

Waste management and the workplace
Volume 14 - 2010 Theron, Jan and Margareet Visser

The article examines forms of labour and economic opportunity created by local government in relation to waste management (refuse removal and recycling) and the kinds of vulnerabilities these generate.

The authors seek to lift the 'contractual veil' on outsourced municipal services and describe a typology of labour arranged along...

The additional protocol to the African Charter on Human and Peoples' Rights: indications of capacity for African municipal systems
Volume 13(2) - 2009 Aniekwu, Nkolika Ijeoma

Aniekwu Nkolika Ijeoma notes that, in July 2003, the African Union adopted a landmark treaty, the Protocol on the Rights of Women in Africa, which significantly advances human rights protections to better reflect and incorporate women's experiences. It presents a tremendous opportunity for women's rights advocates in Africa, being the...

The effect of women's care-giving role on their social security rights
Volume 13(2) - 2009 Malherbe, Kitty and Lorenzo Wakefield

Kitty Malherbe and Lorenzo Wakefield show how roles traditionally allotted to women may obstruct their access to the right to social security. There are instances where women's care-giving role provides them with benefits they otherwise would not have had, such as child support grants.

On the other hand, care-giving can...

The impact of traditional sex practices on the construction of female sexuality: an African human rights perspective
Volume 13(2) - 2009 Van der Poll, Letetia

Letetia van der Poll critically evaluates the traditional African sex practices of dry sex and virginity testing against the backdrop of three key African human rights instruments. The article argues that such practices violate some of the most basic rights and freedoms of women, including their inherent dignity and...

Ukuqhwabela ukuba kuthathwe isigqibo sokugqibela somThetho wezona zigwebo ziphantsi
Volume 13(2) - 2009 Bedu, Ronnie

Ngokoluvo olusebenzayo nolungagxeki ngokupheleleyo, abantwana bangumzekelo wethemba loluntu kunye nesiphiwo salo kwikamva lalo.' Ubu-ethe-ethe bolu luvo busenokungabi yonyani ngokupheleleyo, ingakumbi eMzantsi Afrika apho bekusenzeka rhoqo izenzo zolwaphulo-mthetho ezinobundlobongela obenziwa lulutsha.

Procedural explanations and choices: The undefended accused in a minefield
Volume 13(1) - 2009 Erasmus, Deon

Deon Erasmus introduces his evaluation of the South African criminal trial process, which is governed by the Criminal Procedure Act 51 of 1977, by observing that the oral nature of a trial is one of its essential features. He then discusses the procedural explanations given to the accused and...

Scrutinising regional standards of democracy in Africa
Volume 13(1) - 2009 Ngarhodjim, Nadjita

Nadjita Ngarhodjim discusses the challenges of scrutinising regional standards of democracy in Africa. Democratisation, it is argued, was triggered mainly by the change in the distribution of international political power in the late 1980s. The continent's leaders, according to the author, reacted promptly, deciding to clothe democracy in African...

The law regarding the division of the retirement savings of a retirement fund member on his or her divorce
Volume 13(1) - 2009 Nevondwe, Lufuno

The article analyses the recent amendments to the Pension Funds Act 24 of 1956 relating to the divorce benefit, particularly the amendment introduced by section 37D. This amendment will contribute positively to the development of South African retirement law. The allocation and payment of a share of a retirement...

The National Health Amendment Bill 2008 and governmental policy reform: How far is too far?
Volume 13(1) - 2009 Coetzer, Neil

The public health sector is constantly at pains to provide adequate basic healthcare in many areas of South Africa.1 However, despite the difficulties faced by the state in this regard and the sharp criticism levelled at it for its failure to ensure a high standard of basic public healthcare, ...

The past is a foreign country: Official public memory in South African constitutional jurisprudence
Volume 13(1) - 2009 Kroeze, Irma

Irma Kroeze considers the question whether the Constitutional Court has assumed the responsibility of creating 'public memory' in South Africa. While history and the past must be remembered, it is also susceptible to distortion and reconstruction. That is why the past often seems like a foreign country, one that...

The quest for freedom of information law: The Zambian experience
Volume 13(1) - 2009 Matibini, Patrick

Patrick Matibini examines the concept of freedom of information, starting with a historical overview of the political arena in Zambia. The primary objective of this article is said to be threefold: first, to demonstrate the importance of freedom of information in a democratic state; secondly, to consider the quest...

Why provincial Intra-governmental disputes in South Africa remain ungoverned by the final constitution and the Intergovernmental Relations Framework Act
Volume 13(1) - 2009 Woolman, Stu

Stu Woolman notes that for almost a decade government actors and academics have bemoaned a gaping hole in our law: the Final Constitution promised that Parliament would establish a legal regime to mediate and to resolve intergovernmental conflicts. Parliament ultimately produced this super-ordinate legislation in 2005: the Intergovernmental Relations...

Effects of forced genital cutting on human rights of women and female children: The Nigerian situation
Volume 12(2) - 2008 Idowu, Amos

Amos Adeoye Idowu reflects on a highly controversial cultural practice which continues to have a deep impact on women's right to equality, physical integrity, dignity and privacy: female genital mutilation (FGM). One of the greatest paradoxes in many nations, he argues, is the increasing contrast between achievements in struggles against...

Free trade or just trade? The World Trade Organisation, human rights and development (Part 1)
Volume 12(2) - 2008 Lumina, Cephas

Cephas Lumina critically examines the role of the World Trade Organisation (WTO). In recent years, it is noted, the organisation's agenda of trade liberalisation, its perceived lack of accountability and insensitivity to human rights have attracted intense criticism.

It has been asserted that provisions of WTO agreements concerning agricultural...

Public Participation: What has the Constitutional Court given the public?
Volume 12(2) - 2008 Nyati, Linda

In LDD's first Xhosa-language article, Linda Nyati explores the duty to facilitate public participation in legislative processes in terms of sections 59(1) (a), 72(1) (a) and 118(1) (a) of the Constitution. This issue, the article demonstrates, is highly pertinent to citizens in grappling with the inner working of...

The Constitutional state in the developing world in the age of globalisation: From limited government to minimum democracy
Volume 12(2) - 2008 Mahao, Nqosa L

Nqosa L Mahao argues that the concept of the constitutional state has its genesis in the evolution of constitutionalism in Europe. Its basic elements, of the rule of law, separation of powers, independence of the judiciary, were born of a specific agenda of restraining the holders of political power...

The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa
Volume 12(2) - 2008 Mujuzi, Jamil Ddamulira

Jamil Ddamulira Mujuzi notes that, at the time of ratifying the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa ('the Protocol'), South Africa made several reservations and interpretive declarations. The reservations related to the imposition of the death penalty on...

Bureaucracy is constraining democracy in South African schools
Volume 12(1) - 2008 Smit, Marius

Marius Smit deals with bureaucracy and the role of school governing bodies. Following the establishment of a constitutional democracy South African society has been undergoing a fundamental transformation.

In education, democratisation has been formalised with the redistribution and extension of power to local school governing bodies and the removal...

Democracy and elections in Africa in the Democratic Republic of Congo: Lessons for Africa
Volume 12(1) - 2008 Mangu, AM and M Buledi

Andre Mbata Mabgu and Mpariseni Budeli write on the trajectory of the Democratic Republic of the Congo (DRC) which, moving from a colonial to an independent to an oppressive state before finally emerging into democracy in 2006, resembles that of many African states.

Lessons from the DRC elections for democratic...

Islamic Canon Law encounters South African financing and banking institutions
Volume 12(1) - 2008 Abdullah, Nathiera

Nathiera Abdullah assesses the possibility of introducing Shariah (i.e. Islamic Canon Law) compliant financing and banking products as possible vehicles of Islamic Economic Empowerment (IEE) for the purpose of promoting broad-based Black Economic Empowerment (BEE). Special attention is given to the contextual implementation of a three-tiered IEE paradigm or...

Mind the gap: Suggestions for bridging the divide between formal and informal social security
Volume 12(1) - 2008 Dekker, Adriette

Adriette Dekker argues that the protection provided by social security is necessary not only to achieve social justice but is also an indispensable tool in the fight against poverty. Formal government-regulated social security in South Africa comprises both social insurance and social assistance.

Due to the legacy of apartheid, this...

Promotion of good governance and combating corruption and maladministration: The case of Botswana
Volume 12(1) - 2008 Mbao, Melvin and GG Komboni

Melvin Mbao and GG Komboni criticise the legal regime and institutional arrangements designed to promote good government and to combat corruption and maladministration in Botswana, a country widely acclaimed as Africa's success story. Using internationally accepted benchmarks on good governance and combating corruption, the article seeks to critically evaluate...

The betrayal of Steve Biko: South Africa's Initial Report to the UN Committee against Torture and responses from civil society
Volume 12(1) - 2008 Muntingh, Lukas

Lukas Muntingh reveals that South Africa ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1998 and that its Initial Report, which was due a year later, was only submitted in 2005 and assessed by the UN Committee against Torture in...

The case of Johannesburg water: What really happened at the pre-paid Parish pumps?
Volume 12(1) - 2008 Bond, Patrick and Jackie Dugard

Patrick Bond and Jackie Dugard consider South Africa's retail water policy and delivery system through the dual lens of the proceedings in Mazibuko & Others v City of Johannesburg & Others , heard in the Johannesburg High Court from 3-5 December 2007, and a recent hydropolitical analysis by the...

Protection against unfair discrimination in the workplace: Are the courts getting it right?
Special Issue 2007 Du Toit, Darcy

Darcy Du Toit provides a detailed discussion of discrimination on grounds that are branded as 'unfair' with reference to the Constitution, the LRA, the Employment Equity Act (EEA) and International Labour Organisation Convention 111.

The article examines the way that the courts have dealt with claims of unfair discrimination by...

Who's in and who's out: Labour law and those excluded from its protection
Special Issue 2007 Theron, Jan

Jan Theron examines the role of trade unions in relation to the difficult question of which workers are, or should be, regarded as employees for the purposes of labour legislation. The article discusses the hierarchies found in the workplace and the problems associated therewith, and suggests how trade unions could...

(Illicit) transfer by De Gree
Volume 11(2) - 2007 Sloth-Nielsen, Julia and Benyam Mezmur

Julia Sloth-Nielsen and Benyam Mezmur provide a detailed discussion of the decision of the Supreme Court of Appeal (SCA) in De Gree v Webb [2007] SCA 87 (RSA), in which they examine the fundamental principles applicable to the international transfer of children via the adoption process.

The article dissects...

Discrimination based on HIV/AIDS status
Volume 11(2) - 2007 Durojaye, Ebenezer

Ebenezer Durojaye considers the judgment in the Nigerian case of Festus Odiafe and ors and the Attorney General and ors relating to prisoners' right of access to HIV treatment in Nigeria.

This was the first decided case dealing with HIV/AIDS in Nigeria. The author argues that, while the court was...

From individual protection to recognition of relationships: Same-sex couples and the South African experience of sexual orientation reform
Volume 11(2) - 2007 Jivan, Usha

Usha Jivan explores the legal discourse about equality, in particular homosexual equality, and illustrates how it has traversed sites that may be labelled condemnation, compassion, condonation and celebration.

In the pre-democratic era homosexuality was dealt with in the harshest manner. Since the advent of the new Constitution the courts have...

Safe as houses? Balancing a mortgagee's security interest with a homeowner's security of tenure
Volume 11(2) - 2007 Steyn, Lee

Lee Steyn argues that a balance is needed between a mortgagee's security interest and a homeowner's security of tenure. This is because the Constitutional Court, in Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC), set aside the sale in execution of the...

Taking those with special housing needs from the doldrums of neglect
Volume 11(2) - 2007 Chenwi, Lilian

Lilian Chenwi deals with the need for an approach to housing that takes special needs into account. Millions of people in South Africa do not have access to adequate housing, among them many individuals and households with special needs.

South Africa has been hailed for its progressive housing laws, ...

The right to freedom of religion: An apparently misunderstood aspect of legal diversity in South Africa
Volume 11(2) - 2007 Mofokeng, Lesala L

Lesala Mofokeng provides a detailed discussion of the definition of legal pluralism which, according to him, has the same meaning as 'legal diversity'. He argues that despite the fact that everyone has a right to freedom of religion under section 15 of the Constitution, the section does not adequately afford...

The impact of development on the environment as part and parcel of integrated development planning?
Volume 11(2) - 2007 Van Wyk, Jeannie

Jeannie Van Wyk argues that land use planning and environmental issues do not and cannot exist independently of one another. Many examples exist of proposed developments where both these issues were relevant in deciding whether or not to permit them.

In South Africa different statutes set out procedures to...

Commentary on South Africa's position regarding equal pay for work of equal value
Volume 11(1) - 2007 Hlongwane, Nomagugu

Nomagugu Hlongwane examines the problem of pay discrimination among employees doing similar work. Analysing the principle of 'equal pay for work of equal value', she notes that the Constitution prohibits pay discrimination only on the grounds set out in section 9(3) of the Constitution.

The Employment Equity Act (EEA), ...

Older Persons Act: Out with the old and in the with the older?
Volume 11(1) - 2007 Malherbe, Kitty

Kitty Malherbe examines the legislative and policy developments that led to the enactment of the Older Persons Act 13 of 2006, designed to address the unacceptable levels of abuse and neglect suffered by older persons in residential care as well as in their communities and ensure that they receive the...

Poverty production and human rights in the African context
Volume 11(1) - 2007 Mubangizi, John C

Professor Mubangizi argues that international human rights norms and values not only socio-economic but also civil and political should be infused into poverty reduction policies and institutions, which should include a restructuring of the global economic order. In his view this would play an important role in halting the...

The National Credit Act: Will it increase access to credit for small and micro enterprises?
Volume 11(1) - 2007 Bamu, Pamhidzai, Joachim Schuckman and Shane Godfrey

Pamhidzai Bamu, Joachim Schuckman and Shane Godfrey deal with the question whether the new National Credit Act will increase access to credit for small and micro enterprises (SMMEs). Government sees the promotion of SMMEs as a way of mobilising the so-called 'second economy', comprising mostly actors from the 'previously...

Loss of earning capacity: The difference between the sum-formula approach and the somehow-or-other approach
Volume 11(1) - 2007 Millard, Daleen

Daleen Millard's comprehensive examination of relevant case law reveals abiding uncertainty in the determination of loss of earning capacity. Professor Millard demonstrates that the problems are the result of terminological infelicities, conceptual problems and evidentiary difficulties.

She suggests that social protection measures such as income replacement, pensions or welfare benefits...

Come back when you are 65, Sir: Discrimination in respect of access to social assistance for the elderly
Volume 10(2) - 2006 Kruger, Rosaan

Section 27 of the South African Constitution guarantees 'for everyone' the right of access to social security, while section 9 prohibits unfair discrimination on any ground, including sex and gender. Rosaan Kruger examines whether the existing old age pension regime, which makes females eligible for state pensions at the...

Legal protection of undocumented foreign migrant children in South Africa: Reality or myth?
Volume 10(2) - 2006 Van der Burg, Anthea

The article considers whether the treatment of undocumented foreign migrant children in South Africa conforms to the requirements of international law and the South African Constitution. The author points out that South Africa has ratified several international treaties which contain specific provisions protecting undocumented foreign migrant children.

She also...

Like a candle in the wind: Commentary on communications decided by the African Commission of Human and People's Rights in 2003
Volume 10(2) - 2006 Hye-Young, Lim and Mianko Ramaroson

In a further review of the emerging human rights jurisprudence generated by African human rights bodies, Lim Hye-Young and Mianko Ramarosen discuss some of the recent opinions issued by the African Commission on Human and Peoples Rights. These opinions are of particular importance given the recent establishment of the...

Promoting human rights and achieving reconciliation at the international level (Part 2)
Volume 10(2) - 2006 Sarkin, Jeremy and Giulia Dal Co

Jeremy Sarkin and Giulia Dal Co seek to develop, mainly through historical and international analysis, a model of reconciliation and peace and security between states. This analysis adds to the international discourse on transitional justice that has gained momentum in recent years through the creation of institutions (international and...

The horizontal application of constitutional rights in a comparative perspective
Volume 10(2) - 2006 Chirwa, Danwood Mzikenge

Danwood Chirwa tackles the possible horizontal application of constitutional rights from a comparative perspective. In a world in which private actors often exert enormous influence, it is not surprising that a trend has emerged to extend the protection of constitutional rights beyond the traditional sphere.

The author points out...

The new constitutionalism: The global, the postcolonial and the constitution of nations
Volume 10(2) - 2006 Fitzpatrick, Peter

The article provides a provocative analysis of the emergence of the 'new constitutionalism'. The author argues that, in one of its forms, one finds an explicit instrumental subordination of democracy, human rights and the rule of law to the market, to deregulation and privatisation.

This new constitutionalism is transforming...

Challenges to effective prison governance in South Africa
Volume 10(1) - 2006 Tapscott, Chris

Chris Tapscott discusses the successes and failures of the prison system in South Africa by investigating the governance of a number of prisons around the country. The article starts by looking at the challenges faced by prisons across the world, such as overcrowding, understaffing, the character of the penal system...

Promoting human rights and achieving reconciliation at the international level (part 1)
Volume 10(1) - 2006 Sarkin, Jeremy and Giulia Dal Co

Jeremy Sarkin and Giulia Dal Co seek to develop, mainly through historical and international analysis, a model of reconciliation and peace and security between states. This analysis adds to the international discourse on transitional justice that has gained momentum in recent years through the creation of institutions (international and...

Sexual harassment in the workplace: A matter of more questions than answers, or do we simply know less the more we find out?
Volume 10(1) - 2006 Le Roux, Rochelle

The article analyses two recent judgments dealing with the issue of sexual harassment in the workplace. In these cases (heard in the Cape HIgh Court and the Supreme Court of Appeal) a woman successfully sued her employer for not taking adequate action to prevent sexual harassment from taking place.

...

The exclusion of contractors from government contract awards
Volume 10(1) - 2006 Bolton, Phoebe

Phoebe Bolton critically analyses South African legislation dealing with the exclusion of contractors from government contract awards because of non-payment of taxes, unsatisfactory contractual performance under a previous contract or fraud or corruption. The author finds that the legislation in general succeeds in giving effect to the principles of...

A matter of ongoing concern: Judicial interpretation and misinterpretation of section 197 of Ihe Labour Relations Act
Volume 9(2) - 2005 Benjamin, Paul

The author critically examines section 197 of the LRA, a section that has been the subject of much debate. The author discusses the initial 'emasculation' of section 197 by way of judicial interpretation and the reasons for it.

Some of these difficulties were remedied by the decisions of courts...

Affirmation to realisation of the nght of access to information: Some issues on the implementation of PAIA
Volume 9(2) - 2005 Richter, Marlise

The article points to the importance of access to information to a properly functioning democratic society. That principle is reflected in section 32 of the Constitution and in the Promotion of Access to Information Act (PAIA).

The author notes, however, that there have been problems with PAIAÆs implementation. These...

Collective bargaining and the LRA
Volume 9(2) - 2005 Cheadle, Halton

The article addresses three key issues relating to collective bargaining under the LRA: the meaning of the right to bargain collectively, the constitutional attack on the extension of collective agreements and the current state of sector-level bargaining. The author points out that we can distinguish a range of rights...

The Labour Relations Act and global competitiveness
Volume 9(2) - 2005 Hepple, Bob

The article addresses a theme that has become dominant in the discourse surrounding South Africa's labour legislation: is the labour market over-regulated? It starts by noting that the LRA was enacted at the very moment when South Africa's re-entry into the world economy exposed it to the global competition...

The LRA and the common law
Volume 9(2) - 2005 Wallis, Malcolm

While labour law has evolved to remedy the deficiencies in the common law, Malcolm Wallis argues, the common law is not as deficient as some believe; rather, common-law principles are often misapplied or misunderstood. There is a synthesis between the common law and labour legislation.

The legislature has recognised...

Trade unions and institutionalised workers' participation: The German experience
Volume 9(2) - 2005 Weiss, Manfred

The article addresses the bold but thus far unsuccessful endeavour of the LRA to promote worker participation in managerial decision-making by means of workplace forums. A basic obstacle, the author argues, is uncertainty on the part of trade unions as to the implications of establishing these structures.

The article...

Transforming' South African professional sport: Some observations on recent developments
Volume 9(2) - 2005 Louw, Andre

The article tackles a contentiious subject: the implications of transformative policies in the field of professional sport and, by extension, in employment more generally. One central concern is the effect of such policies on [he employment rights of professional sports players; another is the future of professional sport itself.

...

A review of the Judicial Inspectorate of Prisons of South Africa
Volume 9(1) - 2005 Jagwanth, Saras

Saras Jagwanth reviews the functioning of the Office of the Inspecting Judge of Prisons as an instrument of oversight over corrections that is intended to improve the implementation of human rights in prisons. Of particular note is her discussion of the legislative mandate to investigate corruption in prisons accorded...

Civilian oversight and South African prisons: An examination of the Independent Visitor system
Volume 9(1) - 2005 Gallinetti, Jacqui

Jacqui Gallinetti explores the efficacy of the system of Independent Prison Visitors (lPVs) set up by the Office of the Inspecting judge. Drawn from surrounding communities, the IPVs are required to facilitate the resolution of prisoners' complaints.

The author notes that, whilst certain areas of concern emerged such as...

Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as adopted in 2002 by the UN General Assembly 57/1999: Implications for South Africa
Volume 9(1) - 2005 Fernandez, Lovell

Lovell Fernandez examines the implications for South Africa of ratifying the Optional Protocol to the Convention against Torture, adopted by the United Nations in 2002. Having ratified the Convention in 1998, South Africa is obliged to prohibit torture through legislation.

However, the Optional Protocol provides a further important mechanism...

Policy and practice in South African prisons: An update
Volume 9(1) - 2005 Sloth-Nielsen, Julia

Julia Sloth-Nielsen points to challenges in the correctional system that South Africa's new constitutional democracy was faced with, including the deep-rooted militaristic tradition that needed to be replaced and the transformation in staff representativeness. She discusses various aspects of prison building design, including the still controversial privatisation of two...

Prisoners' rights litigation in South Africa since 1994: A critical evaluatIon
Volume 9(1) - 2005 De Vos, Pierre

Pierre de Vos examines oversight of prisons by the courts. Noting that the Constitution contains generous and explicit provisions elaborating prisoners' rights, he expresses surprise that so few cases have been launched.

The study reveals that many cases are settled and that the terms of such settlements are not...

Surveying the prisons landscape - what the numbers tell us
Volume 9(1) - 2005 Muntingh, Lukas

In a survey of quantitative data, Lukas Muntingh illustrates that Southern Africa has relatively high imprisonment rates. Further, the South African figures are skewed, showing that almost half of the prison population range from 18 to and 25 years of age.

Proportionately more 'coloured' young men are imprisoned than...

An exploration of mata'a maintenance in anticipation of the recognition of Muslim marriages in South Africa: (Re-)opening a veritable Pandora's box?
Volume 8(2) - 2004 Moosa, Najma and Shaheena Karhanee

Najrna Moosa and Shaheena Karbanee investigate a question of considerable importance to women in the Islamic community: the right of a divorced woman to maintenance after divorce. In South Africa, as elsewhere, most Muslim women are not employed outside the home and, with the power to pronounce divorce vested...

Defining the parameters of employment: The position of the company shareholder and the close corporation member
Volume 8(2) - 2004 Bosch, Craig

Can persons who are company shareholders or close corporation members can also be employed by those entities? The relevance of this seemingly technical question, the article notes, lies in the fact that only 'employees' enjoy the protection of statutes implementing constitutional rights to fair labour practices and equal treatment...

Monitoring the implementation of socio-economic rights in South Africa: Some lessons from the international community
Volume 8(2) - 2004 Ntlama, Nomthandazo

Nomthandazo Ntlama notes that socio-economic rights, enjoy 'hard' protection (through the courts) as well as 'soft' protection (through non-judicial institutions). The article focuses on constitutional mechanisms used in the latter context and, in particular, the mandate of the South African Human Rights Commission (SAHRC) to perform this function.

The international...

Socio-economic rights and the process of privatising basic municipal services
Volume 8(2) - 2004 Steytler, Nico

Nico Steytler outlines the obligations resting on local government to give effect to socio-economic rights, focusing in particular on the legislative framework in terms of which privatisation of municipal services may occur. Concerns have been raised about the ability of privatised services to be provided on an equitable and...

The implication of socio-economic rights jurisprudence for government planning and budgeting: The case of children's socio-economic rights
Volume 8(2) - 2004 Creamer, Kenneth

Kenneth Creamer sets out to develop a framework for assessing government programmes which are designed to promote the realisation of socio-economic rights. A central theme, given the difficulties faced by the courts in adjudicating disputes with socio-cconomic ramifications, is that both the Executive and thc Legislature should be guided...

Water privatisation and socio-economic rights in South Africa
Volume 8(2) - 2004 Chirwa, Danwood Mzikenge

The provision of water, the article posulates, is directly connected to the enjoyment of the constitutional right of access to water. Water service delivery mechanisms must therefore be in accordance with constitutional principles.

Some of the concerns arising from the process of privatisation in this context relate to 'the...

The right of access to land and its implementation in Southern Africa: A comparative study of South Africa and Zimbabwe land reform laws and programmes
Volume 8(2) - 2004 Rugege, Sam

While access to land is not explicitly recognised as a socio-economic right in international human rights instruments, section 25 of the South African Constitution places a duty on the State to promote equitable access to land. The article analyses the problem of landlessness arising from a legacy of colonial...

A new beginning? The enforcement of social, economic and cultural rights under the African Charter on Human and Peoples' Rights
Volume 8(1) - 2004 De Vos, Pierre

Pierre de Vos maintains that, although the African Charter on Human and Peoples' Rights is much criticised for its vague and seemingly unenforcable provisions, it is a unique document that requires the development of a more nuanced and theoretically consistent understanding of the nature and scope of the human...

Legitimacy and interpretation in Ghanaian law: The literal interpretation theory versus the value-based interpretation theory
Volume 8(1) - 2004 Mensah, Kwadwo B

Kwadwo Mensah focuses on the conflict between two dominant theories of interpretation in Ghanaian law, the literal interpretation theory (LIT) which argues that documents should be interpreted literally regardless of the consequences, and the values-based interpretation (VBIT) which postulates a central role for moral and political considerations in the...

Socio-economic rights in applicable international trade law
Volume 8(1) - 2004 Lanfranchi, Marie-Pierre

Do international trade rules applicable between states take into consideration the protection of socio-economic rights? Marie-Pierre Lanfranchi notes that WTO law does not take into consideration processes and methods of production, includes no social clause and does not cover social dumping. In consequence, it appears that the only way...

The co-ordination of social security rights in Southern Africa: Comparisons with (and possible lessons to be learnt from) the European experience
Volume 8(1) - 2004 Malherbe, Kitty

Investigating social security coverage in the SADC region, Kitty Malherbe finds that national systems have historically been underdeveloped and are extremely diverse. SADC measures to coordinate social security for migrants are limited.

The African Charter on Human and Peoples' Hights does not make express provision for social security. In...

The right to housing in France and South Africa
Volume 8(1) - 2004 Gay, Laurence

Although the French Constitution of 1958 does not proclaim such a right, Laurence Gay points out that the courts may consider 'the possibility of any person of having (a) decent form of housing" as "an objective of constitutional value". But, while this norm gives a basis for public intervention...

The transfer of enterprises and the protection of employment benefits in South and Southern Africa
Volume 8(1) - 2004 Du Toit, Darcy

Section 197 of the Labour Relations Act ('LRA') provides that, where an enterprise is transferred as 'a going concern', all rights and obligations between the old employer and its employees at the time of the transfer continue in force between the new employer and the employees. Focusing on the...

Trade liberalisation as facilitated through trade agreements within the Southern African region: An instrument in the realisation of socio-economic rights
Volume 8(1) - 2004 Lenaghan, Patricia

Patricia Lenaghan evaluates the probable fulfilment of socio-economic rights resulting from economic growth experienced in the Southern African region. She considers the aims and objectives of various multilateral and bilateral agreements in the region, including the Southern African Development Community (SADC) and the African Union (AU), and concludes that, ...

A perspective on local government's role in realising the right to housing and the answer of the Grootboom judgment
Volume 7(2) - 2003 De Visser, Jaap

Jaap de Visser examines the responsibilities of the three spheres of government with regard to implementing the right of access to housing and, in particular, the responsibility of local government. Local authorities are obliged, just as much as national and provincial government, to protect basic rights and advance their...

District municipalities: Giving effect to shared authority in local government
Volume 7(2) - 2003 Steytler, Nico

Nico Steytler focuses on the of 47new district municipalities established in December 2000, which share legislative and administrative powers with local municipalities in their areas. As shared authority in local government in non-metropolitan areas is new to South Africa, it poses a number of problems.

The article notes the...

Indigenous peoples, corporate power and the knowledge economy: The law and politics of knowledge protection
Volume 7(2) - 2003 Magaisa, Alex Tawanda

Alex Tawanda Magaisa argues that knowledge has always been contested territory but, as the centrality of knowledge or information systems increases in the global economy, so have the contests over its ownership. Exploring the struggles over indigenous knowledge systems, he focuses particularly on medical knowledge systems.

The article notes...

Provincial-municipal relations: A few challenges
Volume 7(2) - 2003 Mettler, Johann

Johann Mettler notes that the status of local government has changed radically: it has become an autonomous sphere of government with powers derived from the Constitution, no longer delegated by national or provincial government. The Constitution further provides for the monitoring, support, regulation and supervision of municipalities by provinces.

...

Traditional leadership and its future role in local governance
Volume 7(2) - 2003 Rugege, Sam

Sam Rugege discusses the role of traditional leadership in the context of the democratic dispensation in which elected local government has been established throughout South Africa. He traces the instution from its pre-colonial form to its distortion under colonialism and apartheid and notes the considerable powers and functions enjoyed...

The quest for financial discipline at local government level: The regulation of municipal borrowing and financial emergencies
Volume 7(2) - 2003 Wandrag, Riekie

Before the passing of the Municipal Finance Management Bill of 2003, Riekie Wandrag explains, local government confronted a number of issues, including lack of a coherent legislative regulation of municipal borrowing powers, a policy shift from national government guarantees to local responsibility for debt and stagnation of the municipal...

So much to do, so little done: The right of access to anti-retroviral drugs post-Grootboom
Volume 7(1) - 2003 De Vos, Pierre

The article highlights the public health and social emergency facing South Africa due to the fact that an estimated six million of its 40 million citizens are HIV-positive. The state response to this crisis has been criticised from many quarters.

In the light of Minister oj Health v TAC...

The right to education: Lessons from Grootboom
Volume 7(1) - 2003 Seleoane, Mandla

The author argues that the right to education is more strongly formulated in the Bill of Rights than the right to housing, which was at issue in the Grootboom case, so that policy implications for the right to education cannot be derived mechanically from the Grootboom judgment. Examining government...

Between availability and entitlement: The Constitution, Grootboom and the right to food
Volume 7(1) - 2003 Brand, Danie

Danie Brand considers the application of certain of the principles enunciated in recent Constitutional Court jurisprudence on socio-economic rights to policies aimed at the realisation of the right to food. On the basis of a review of current policies, the author concludes that government's current response to food insecurity...

Realising the right of access to water: Pipe dream or watershed?
Volume 7(1) - 2003 De Visser, Jaap, Edward Cottle and Johann Mettler

The article assesses the implications of the Grootboom judgment on the right of access to water. The free basic water policy intends six free kilolitres of water per household per month to be funded from the equitable share and internal cross-subsidies.

No additional funds are available for the provision...

Too little? Too late? The implications of the Grootboom case for state responses to child-headed households
Volume 7(1) - 2003 Sloth-Nielsen, Julia

The article begins with an overview of the socio-economic context surrounding child-headed households and then discusses the constitutional obligations that rest on the state vis-a-vis children growing up in these settings. Considering the scope of the state's obligation where the parents of children below the age of 18 are...

Tracking South Africa's progress on health care rights: Are we any closer to achieving the goal?
Volume 7(1) - 2003 Pillay, Karrisha

The article examines the definition of health care services and proposes criteria that expand the concept beyond the narrow biomedical model to a holistic model. Discussing the Court's understanding of reasonableness in the Grootboom and TAC judgments, the author concludes that in addition to these general criteria, the concept...

A critical assessment of land redistribution policy in the light of the Grootboom judgment
Volume 6(2) - 2002 Lahiff, Edward and Sam Rugege

Edward Lahiff and Sam Rugege look at the governmentÆs land redistribution programme which seeks to give effect to section 25(5) of the Constitution. Analysing the constitutional, legislative and policy framework for redistribution the authors consider (in light of the Grootboom judgment) whether the land redistribution programme is reasonable.

Their...

Implementation of Grootboom: Implications for the enforcement of socio-economic rights
Volume 6(2) - 2002 Pillay, Kameshni

Kameshni Pillay argues that the Grootboom judgment had not (at the date of writing) resulted in a comprehensive national programme to provide accelerated access to land for people in desperate situations. This can be at least partially attributed to the fact that the order handed down by the Constitutional...

The public finance implications of recent socia-economic rights judgments
Volume 6(2) - 2002 Chetty, Kam

With reference to the three main Constitutional Court judgments on socio-economic rights, Kam Chetty analyses the obligations placed on the government and highlights five key public finance issues that influence the realisation of socio-economic rights. The first acknowledges the difficulty of addressing socio-economic rights, particularly in the context of...

Incomplete ruptures: The political economy of realising socio-economic rights in South Africa
Volume 6(2) - 2002 Pieterse, Edgar and Mirjam van Donk

Edgar Pieterse and Mirjam van Donk focus on the question whether the post-apartheid South African state has the organisational and political capability to to ensure the progressive realisation of socio-economic rights. However, the issue of state capability cannot be delinked from civil society activism to use and expand the...

South Africa's evolving jurisprudence on socio-economic rights: An effective tool in challenging poverty?
Volume 6(2) - 2002 Liebenberg, Sandra

Sandra Liebenberg reviews the the three leading judgments of the Constitutional Court on socio-economic rights: Soobramoney, Grootboom, and Minister oj Health v TAC. The paper also seeks to identify key areas where the jurisprudence can be developed to make it more responsive to the needs of the poor.

It...

Aiding intolerance and fear: The nature and extent of AIDS discrimination in South Africa
Volume 5(2) - 2001 Richter, Marlise

Discrimination on the basis of HIV/AIDS may take different forms. Marlise Richter provides a practice-based exposition of the nature of HIV/AIDS discrimination in South Africa.

It has arisen, inter alia, in the areas of employment, insurance, access to education, medical aid, privacy, wilful transmission and the adoption of children...

Debunking 'Conglomo-talk': A case study of the amicus curiae as an instrument for advocacy, investigation and mobilisation
Volume 5(2) - 2001 Heywood, Mark

Mark Heywood focuses on the legal action brought by the Pharmaceutical Manufacturers' Association (PMA) to test the constitutionality of an amendment to South Africa's Medicines and Related Substances Control Act of 1965. It traverses some of the history of a case rich in irony, insofar as the PMA utilized...

Taking responsibilities seriously: The role of the state in preventing transmission of HIV from mother to child
Volume 5(2) - 2001 Berger, Jonathan

Jonathan Berger deals with the issue of the transmission of HIV from mother to child, which is the primary source of infection in young children. The author accepts that preventative interventions substantially reduce mother to child transmission (MTCT) but, without state intervention, access to programmes to prevent MTCT remains...

Testing for HIV/AIDS: The constitutional standard
Volume 5(2) - 2001 Pillay, Karrisha

Testing for HIV/AIDS has long been a contentious issue. Karrisha PiIlay examines it in the context of the right of access to health care services embodied in s27 of the Constitution.

The author argues that appropriate testing for HIV/AIDS is a key component in an effective strategy for...

Fighting crime while promoting human rights in the police: The court and the prisons in South Africa
Volume 4(2) - 2000 Sarkin, Jeremy

Jeremy Sarkin argues that the high levesl of crime in South Africa undermine good governance and have a negative impact on the economy and on human rights, The problem is exacerbated by a poorly functioning criminal justice system. However, government has taken steps to address many of the problems.

...

Irreconcilable differences? Building a human rights culture and dealing with crime in post-apartheid South Africa
Volume 4(2) - 2000 Pigou, Piers

Many people, Piers Pigou argues, have very limited awareness of human rights. While many agree that crime is a symptom of social inequality, a number of myths have arisen û for example, that the Constitution contributes to crime because it protects criminals or that capital punishment will reduce crime.

...

Local capacity policing
Volume 4(2) - 2000 Shearing, Clifford

Private sector security companies now routinely provide services that used to be the sole preserve of the police. Clifford Shearing argues that this is a positive development because people can choose which policing service to buy, enabling them to gain greater control over their lives.

While acknowledging that the...

Pre-trial detention: Its impact on crime and human rights in South Africa
Volume 4(2) - 2000 Steyn, Esther

Esther Steyn critically examines the restrictive 1997 law on bail and the Constitutional Court's failure to uphold the internationally recognised right of a suspect to liberty while awaiting trial. The perception that bail is granted too easily, that this contributes significantly to crime and that restrictive bail laws are...

Should fighting organised crime be a priority as South Africa deals with crime and human rights, and does the need to combat crime justify extraordinary measures that may limit rights?
Volume 4(2) - 2000 Redpath, Jean

Jean Redpath, who has systematically visited police stations and interviewed police officers, classifies crime as economic and violent crime. Most economic crime, in her view, is opportunistic.

Violent crime is divided into five categories: 1) murder, attempted murder and assaults; 2) domestic violence; 3) gang and organised crime-related violence; ...

The pathological malaise within the criminal justice system: Why the courts are not seen to be delivering
Volume 4(2) - 2000 Fernandez, Lovell

Lovell Fernandez argues that predictability must be restored to the justice system: potential offenders must know that if they commit a crime, there is a very strong possibility that they will be arrested, convicted and sentenced. The article outlines efforts being made to improve the functioning of the courts.

...

The role of the ICD in dealing with crime and human rights within the SAPS
Volume 4(2) - 2000 Salojee, Riaz

The Independent Complaints Directorate is an independent body that monitors and investigates complaints against the South African Police Service. Riaz Salojee discusses the legal framework, activities, successes and challenges that have faced the directorate and explains how he sees the ICD supporting the development of an approach to policing...

Tough on crime and strong on human rights: The challenge for us all
Volume 4(2) - 2000 Calland, Richard and Thabani Masuku

Richard Calland and Thabani Masuku argue that being tough on crime and strong on human rights is demanded by the Constitution and possible within the constitutional jurisprudence that has emerged. Fighting crime means preventing criminals from infringing the rights of ordinary people and from undermining stability and good governance.

...

Disability: the quest for reform
Volume 4(1) - 2000 Truter, Laurentia

Laurentia Truter investigates the protection afforded to people with disabilities by current social security structures. Distinguishing between the different definitions of disability, the author criticises the focus on medical and/or occupational disability, often to the detriment of a social model of disability.

This is followed by an overview of...

Get to work on unemployment
Volume 4(1) - 2000 Calitz, Karen, Brenda Grant, Barry Shipman and Esther van Kerken

Measuring the unemployment insurance system in South Africa against international standards, the authors consider whether the unemployment legislation should be to provide only for the risk of losing employment, or whether it should also aim to combat unemployment. The article further examines specific aspects of unemployment insurance provision such as...

Protection and enforcement of the right to social security
Volume 4(1) - 2000 Olivier, Marius and Linda Jansen van Rensburg

Evaluating the protection and enforcement of the right to social security, the authors argue that the only way open to the categories of persons not covered by relevant legislation is on the basis of their constitutional right to access to social security. The major part of the article deals...

Revisiting the social security policy framework in South Africa
Volume 4(1) - 2000 Olivier, Marius and Linda Jansen van Rensburg

The article offers an evaluative overview of the concept of social security and social security structures in South Africa. It argues that an integrated and coherent system of social security regulation and service delivery is key to resolving the present disparities and deficiencies in the social security system.

On...

Social security aspects of accident compensation: COIDA and RAF as examples
Volume 4(1) - 2000 Myburgh, Piet, Nicola Smit and Daleen van der Nest

The article gives an overview of current occupational injury insurance and highlights some of the issues related to its (limited) scope of application. It also examines the interaction between the Compensation for Occupational Injuries and Diseases Act and the Road Accidents Fund (RAF) Act in the context of commuter...

Social Security: A conceptual view
Volume 4(1) - 2000 Dekker, Adriette, Linda Jansen van Rensburg, Rene Liffman, Mark Thompson and Adriaan van der Walt

The article presents an overview of the concept of social security, dealing with the origins of the concept as well as its modern form and stressing the importance of the concept of solidarity for a successful and inclusive social security system. It further advocates a functional definition of social...

The case for increased reform of South African family and maternity benefits
Volume 4(1) - 2000 Dupper, Ockie, Kitty Malherbe, Barry Shipman and Ethel Bolani

The article gIves an overview of current South African law on family and maternity benefits and highlights a number of shortcomings, notably the exclusion of certain categories of women from maternity benefits. The discussion of family benefits deviates from the usual discourse in that it focuses not only on...

Those who have and those who don't: An investigation into the limited scope of application of social security in South Africa
Volume 4(1) - 2000 Liffman, Rene, Ben Mlalazi, Valerie Moore, Sunday Ogunronbi and Marius Olivier

The authors deal with the scope of application of social security in South Africa, particularly in relation to excluded and marginalised groups. The article deals in some detail with the categories of persons generally regarded as excluded from the current social security structures, arguing that the level of unemployment...

A right to truth, justice and a remedy for African victims of serious violations of international humanitarian law
Volume 3(2) - 1999 McDonald, Avril

Avril McDonald deals with the possible right of victims to truth, justice and remedies in situations where violations of international humanitarian law constitute crimes under international law. She examines international law on genocide, crimes against humanity and the law on war crimes as well as customary international law.

Turning...

Living in the wake of the Truth and Reconciliation Commission: A retroactive reflection
Volume 3(2) - 1999 Villa-Vicencio, Charles

Former Truth and Reconciliation Commission research director Charles Villa-Vicencio sees reactions to the work of the commission as falling into three categories: those who rejected the mandate of the commission, those who enthusiastically embraced it. and the majority who are ambivalent.

He explores the role of the commission in...

Painful peace: Amnesty under the Lome Peace Agreement in Sierra Leone
Volume 3(2) - 1999 Tejan-Cole, Abdul

Abdul Tejan-Cole deals with the controversial amnesty provisions of the Lome Peace Agreement in Sierra Leone. While the agreement calls for the establishment of a Truth and Reconciliation Commission, it grants blanket amnesty to all combatants and collaborators against a background of appalling atrocities against civilians, including mass murder.

...

Preconditions and processes for establishing a Truth and Reconciliation Commission in Rwanda: The possible interim role of Gacaca community courts
Volume 3(2) - 1999 Sarkin, Jeremy

Jeremy Sarkin suggests a possible model for a truth and reconciliation enquiry in Rwanda which was presented to that country's government in 1998. Given the enormous difficulties of prosecuting the estimated 125 000 alleged perpetrators of genocide in Rwanda, he proposes as an interim measure that use be made...

Reparations policy in South Africa for the victims of apartheid
Volume 3(2) - 1999 Fernandez, Lovell

Lovell Fernandez discusses the reparations policy of the Truth and Reconciliation Commission of South Africa. In terms of the founding Act, the commission merely has the power to make recommendations on reparations while Parliament is to decide on it.

The commission recommended five forms of reparations: urgent interim reparation, ...

Respecting revenge: The road to reconciliation
Volume 3(2) - 1999 O'Malley, Gabriel

Based on research among victims of human rights violations in South Africa under apartheid, Gabriel O'Malley argues that the Truth and Reconciliation Commission's work is flawed by the lack of recognition for the desire of many victims for revenge. The commission aimed to achieve restorative rather than retributive justice; ...

Transitional justice and the prosecution model: The experience of Ethiopia
Volume 3(2) - 1999 Sarkin, Jeremy

Jeremy Sarkin describes how Ethiopia has chosen to prosecute perpetrators of past human rights violations rather than to use the truth commission route. However, high ranking figures in former regimes have fled to countries where they are immune from prosecution or extradition.

Faced with a choice between Ethiopian law...

Governing rules and principles of the WTO: Its scope and future development in the context of globalisation
Volume 3(1) - 1999 Stern, Brigitte

Brigitte Stern opens the discussion by contextualising the issues to be addressed within the framework of the driving forces and subjacent philosophies and theories of globalisation and regionalisation. She introduces the governing rules, principles and prevailing institutional structures of the World Trade Organisation (WTO) and their implications for all...

The dispute resolution mechanism of the World Trade Organisation five years after its implementation
Volume 3(1) - 1999 Philippe, Xavier

In his discussion of the dispute resolution mechanisms provided for by the WTO, Xavier Philippe is concerned with the development of the system over the past five years. He starts by giving an overview of its scope and its key features, notably subsidiarity and diversity, before going on to...

The TRIPS agreement and South African legislation: The case of the parallel importation of medicines
Volume 3(1) - 1999 Du Plessis, Esme

Esme du Plessis evaluates the topic of parallel importation and the issues facing South Africa in that regard against the background of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and recent South African legislation. Parallel importation issues will become increasingly relevant to the countries of Africa...

The World Trade Organisation and Southern African trade relations
Volume 3(1) - 1999 Thomas, Rosalind

Rosalind Thomas focuses on the impact of the WTO on regional economic integration and free trade agreements between developing countries. She discusses the anomalies and inconsistencies of the economic classification system of the GATT/WTO, taking a critical look at South Africa's position within the WTO system and its important...

Global governance and national sovereignty: The World Trade Organisation and South Africa's new constitutional framework
Volume 3(1) - 1999 Steytler, Nico

Nico Steytler investigates the inter-relationship between the GATT/WTO system and the South African legal system. He investigates the implications of the WTO rules for the international and regional trade relations of South Africa's new governmental structures.

First, he considers the 'fit" of the undertaking of WTO obligations into South...

Globalisation, the World Trade Organisation and the implications for developing countries
Volume 3(1) - 1999 Keet, Dot

Dot Keet takes an in-depth and critical look at globalised trade liberalisation and its influences on economic development in developing countries. She criticises the abuse of the GATT/WTO rules-based system by developed countries.

She is particularly disillusioned by the systematic marginalisation of less and least-developed countries resulting from the exploitation...

'So many legislative changes with such little impact' - a gender analysis of labour reform
Volume 2(2) - 1998 Nyman, Roseline

Two significant pieces of legislation - the Basic Conditions of Employment Act and the Employment Equity Act - were enacted in 1997 and 1998. Their aim was, inter alia, to address discrimination and exploitation in the workplace.

Roseline Nyman examines women's status in the labour market as a category...

Access of political parties to the media during election campaigns
Volume 2(2) - 1998 De Vos, Pierre

The most expensive item in any political party's election budget is access to the media, in particular the electronic media. This may lead to influence-peddling by monied interests.

Pierre de Vos argues that the state should indirectly fund political parties by providing free access to state-controlled media. To enhance...

Guaranteeing loans to and by municipalities: The legal framework, problems and solutions
Volume 2(2) - 1998 Ailola, David A

Local government is one of the key state institutions charged with the task of realising socio-economic rights. Central to discharging this obligation is access to adequate financial resources.

Loan capital is one of the imporant sources of finance. The Constitution provides that the national government, a provincial government or...

Introduction to socio-economic rights in the South African Constitution
Volume 2(2) - 1998 Heyns, Christof and Brand, Danie

Christof Heyns and Danie Brand outline the initial debate over the inclusion of socio-economic rights in the 1993 South African Constitution and their eventual formulation in the 1996 Constitution. The authors distinguish between the norm-setting and norm-enforcement provisions relating to socio-economic rights.

They point out that although a number...

Public Funding of Represented Political Parties Act 103 of 1997 and the implementation of section 236 of the 1996 Constitution
Volume 2(2) - 1998 Steytler, Nico

With the second democratic election scheduled for May 1999, one aspect of electoral law is of particular importance - the financing of political parties in general and election campaigns in particular. Nico Steytler examines whether the Public Funding of Represented Political Parties Act of 1997 meets the requirement of...

The horizontal application theory and its influence on freedom of agreement in the law of contract - a South African perspective
Volume 2(2) - 1998 Van Huyssteen, Louis

Linked to socio-economic rights is the question of freedom of contract. Louis van Huyssteen examines the effect the horizontal application of the South African Bill of Rights may have on freedom of contract.

He concludes that although freedom of contract as such is not protected in the Bill of...

The horizontal application theory and its influence on the freedom of contract - a French point of view
Volume 2(2) - 1998 Putman, Emmanuel

In a comparative note, Emmanuel Putman reflects on the status of freedom of contract in France. He notes that both French and European law give indirect protection to freedom of contract through other fundamental rights or general principles, such as freedom of enterprise.

More problematically, however, contractual clauses may...

The place and recognition of socio-economic rights in France
Volume 2(2) - 1998 Philippe, Xavier

In contrast to the explicit inclusion and clear formulation of socio-economic rights in the South African Constitution, the protection of these rights in France occurred by a circuitous route through judicial intervention. Xavier Philippe explains how the Constitutional Council decided in 1971 that the reference in the 1958 Constitution...

An interpretation of 'relevant organs of state' in section 184(3) of the Constitution and their duty to provide information on socio-economic rights to the South African Human Rights Commission
Volume 2(2) - 1998 Pillay, Karrisha

.

With regard to the enforcement of socio-economic rights, the monitoring role of the South African Human Rights Commission is termed 'soft" enforcement. Karrisha Pillay explores the scope of this task by analysing the definition of a "relevant organ of state" that must report to the HRC.

An "organ of...

A trend towards co-determination? Case studies of South African enterprises
Volume 2(1) - 1998 Webster, Eddie and Ian Macun

Co-determination has to be a two-way process. How amenable will management be to democratised models of decision-making? Webster and Macun contextualise the question by examining the peculiar evolution of workplace representation in South Africa.

The fact that it has largely been driven by management initiatives, combined with the difficulties workers...

Co-determination and transformation: Co-optation or alternative vision
Volume 2(1) - 1998 Jarvis, David and Ari Sitas

In this article Jarvis and Sitas provide an overview of the development of theory around the issue of co-determination. Tracing the debates which have been generated in the process, they critically examine the various political schools of thought that have taken shape on the subject.

Centralised economic planning on the...

Democratising the public service: Co-determination, workplace democratisation and transformation
Volume 2(1) - 1998 Patel, Imraan

Imraan Patel examines the potential for co-determination in the public sector. Due to the structure and nature of decision-making in the public service, he suggests that workplace forums may not be the appropriate institutions for driving a process of democratisation.

Centralised bargaining on a broad agenda, in a context...

Engaging the state and capital: Labour and the deepening of democracy in South Africa
Volume 2(1) - 1998 Adler, Glenn

Glenn Adler examines the phenomenon of employee engagement in South Africa as a process extending from workplace and industry level to the state itself. While far-reaching and unique in many ways, the institutions that have emerged cannot but reflect the different agendas of the two major role-players, and that of...

Negotiating the future: Labour's role in NEDLAC
Volume 2(1) - 1998 Gostner, Karl and Joffe, Avril

Gostner and Joffe examine the agenda for co-determinationat the National Economic Development and Labour Council (NEDLAC). NEDLAC is an almost unique statutory body enabling labour, business and other constituencies of civil society to participate directly in the formulation of policy and law before its is presented to Parliament.

The article...

The LRA and work-place forums: Legislative provisions, origins, and trans formative possibilities
Volume 2(1) - 1998 Satgar, Vishwas

Vish Satgar challenges the 'neo-pluralist" power-sharing paradigm embodied in Chapter 5 of the Labour Relations Act (LRA) which, he argues, does not confront hierarchy in a transformative way. In contrast, he redefines co-determination as part of a struggle to expand worker control with a view to achieving collective worker responsibility...

Where is management going? Employer strategies with regard to worker participation and work-place forums
Volume 2(1) - 1998 Godfrey, Shane, Philip Hirschsohn and Johann Maree

Godfrey, Hirschsohn and Maree focus on the way in which management at a number of large enterprises are responding to competitive pressures to shift from traditional, top-down styles of management towards more integrative methods and to the institution of workplace forums in particular. While there is general awareness of...

Collective bargaining under the new Labour Relations Act: The resurrection of freedom of contract
Volume 1(1) - 1997 Jordaan, Barney

In 'Collective bargaining under the new LRA: The resurrection of freedom of contract" Barney Jordaan examines the way in which the Act set out to extend the democratic principles of the interim Bill of Rights (largely reproduced in the current Bill of Rights) to the inherently unequal relationship between employer...

Does size matter? The Labour Relations Act, majoritarianism and union structure
Volume 1(1) - 1997 Macun, Ian

As Ian Macun points out in 'Does size matter? The Labour Relations Act, majoritarianism and union structure', the Act favours bigger trade unions. While majority trade unionism has important advantages, small unions may in some cases serve the interests of their members as well or even better.

Given South Africa's...

Industrial democracy in South Africa's transition
Volume 1(1) - 1997 Du Toit, Darcy

'Industrial democracy in South Africa's transition' by Darcy du Toit considers another paradigm shift contained in the new Act: from the traditional model of employer-employee relations towards more participative forms of management, as embodied in the provision for workplace forums. The article considers worker participation as an aspect of democratisation...

Small enterprises, the Labour Relations Act and collective bargaining in South Africa
Volume 1(1) - 1997 Goldberg, Melvin

In 'Small enterprises, the Labour Relations Act and collective bargaining in South Africa' Melvin Goldberg considers the way in which the LRA deals with small enterprise. Questioning the widely-held belief that the small business sector is the engine of employment growth, he argues that this has more validity in the...

Trade unions and the law: Victimisation and self-help remedies
Volume 1(1) - 1997 Theron, Jan

In 'Trade unions and the law: Victimisation, organisation and remedies of self-help" Jan Theron critically examines the historical process leading up to the enactment of the LRA with specific reference to the protection of trade unionists against victimisation. Whereas collective action and legal action are widely regarded as being complementary, ...

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
Volume 24 - 2020 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...

FORUM CONTRIBUTION: Choices for sustainable social health care
Volume 22 - 2018 Pieters, Danny

The Department of Health gave South Africans an opportunity until 21 September 2018 to comment on the National Health Insurance Bill. The heated debate on the creation of the National Health Insurance scheme (NHI) has focused on the affordability of the proposed scheme, the capacity of the state to...

FORUM CONTRIBUTION: Towards a more activist parliament more engaged with civil society
Volume 16 - 2012 Carrim, Yunus

This contribution consists of the edited text of a speech delivered by Yunis Carrim at the launch of the Community Law Centre's Parliamentary Programme in Cape Town on 20 October 2010, and is reproduced here because of the importance of the issues it addresses in the context of South...

FORUM CONTRIBUTION: Not only the business of the state, but also a business of all: State reporting in South African and popular participation, pg 514
Volume 15 - 2011 Kollapen, Jody

The author argues that, when one turns to the subject of South Africa's state reporting in relation to international human rights law, three issues consistently come to light: delays in the submission of reports; problems with their content; and lack of consultation in their development.

To address these issues...

FORUM CONTRIBUTION: Promoting FOCAC more maturely in the next decade, pg 500
Volume 15 - 2011 Zhang, Zezhong

The Forum on China-African Cooperation (FOCAC) has entered its second decade. Though the political driving force remains vital, development towards a more mature, long-term stable and effective cooperation mechanism and organisation has become unavoidable.

The article argues that suitable forms of institutionalisation include establishing a joint FOCAC Council of...

FORUM CONTRIBUTION: Get rights right in the interests of security of tenure
Volume 14 - 2010 Pope, Ann

Review of Land, Power and Custom: Controversies Generated by South Africa's Communal Land Rights Act, edited by Aninka Claassens and Ben Cousins; xv and pp 392 with accompanying DVD. Legal Resources Centre and UCT Press, Cape Town, 2008

Ann Pope gives a detailed overview of a book...

FORUM CONTRIBUTION: The plight of domestic workers: The elusiveness of access to adequate housing
Volume 14 - 2010 Tonkin, Anzabeth

South Africa's transformative Constitution calls for a holistic approach to realising the right to human dignity. To marginalised groups, such as domestic workers, this right is not confined to achieving better wages and working conditions; it touches every aspect of their lives. Central to this endeavour is the quest for adequate housing. This article discusses the experience of a housing cooperative consisting predominantly of domestic workers in campaigning for adequate housing, especially at local government level, as part of the struggle to achieve a secure and dignified existence. While identifying formidable obstacles, it also shows the interconnectedness of the various challenges and the need for a integrated approach in addressing them...

FORUM CONTRIBUTION: The final curtain call for the Minimum Sentences Act
Volume 13(2) - 2009 Bedu, Ronnie

Ronnie Bedu deals with the judgment of the Constitutional Court in Centre for Child Law v Minister of Justice and Constitutional Development and Others on the constitutionality of minimum sentences in respect of young offenders under 18 years of age.

FORUM CONTRIBUTION: The state of our democracy
Volume 13(2) - 2009 Tutu, Desmond

In the Annual Dullah Omar Memorial Lecture for 2008, Emeritus Archbishop Desmond Tutu reflects on 'The State of our Democracy'. The speech commences with a brief historical background of the past that South Africa inherited and sets the tone for the critical assessment that follows. It highlights some of the challenges inherited from the past which, if not dealt with, may 'augur ill' for the future. But the overall conclusion is that '[w]e have a wonderful land with immense potential'...

FORUM CONTRIBUTION: Women's rights in human rights systems: Past, present and future
Volume 13(2) - 2009 Pillay, Navanethem

In the 2009 Dullah Omar Memorial Lecture, United Nations High Commissioner for Human Rights Navanethem Pillay contextualises many of the issues facing women that were raised in earlier articles.

FORUM CONTRIBUTION: The principle of legality in constitutional matters with reference to Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC)
Volume 13(1) - 2009 Mnguni, Lesega and Justin Muller

This article, co-authored by LLB student Lesega Mnguni and Justin Muller as part of our ALAD programme, deals with the principle of legality as enunciated in Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC). In this matter an accused person was charged with rape...

FORUM CONTRIBUTION: Be careful what you wish for?
Special Issue 2007 Ronnie, Roger

Roger Ronnie draws a balance sheet of the position of the trade union movement today. While analysing trade unions as organisations dealing with more than simply wages and employment conditions, the author also considers their political limitations and assesses the gains and losses flowing from the 1995 LRA from a...

FORUM CONTRIBUTION: Effects on the employment relationship of the insolvency of the employer: A worker perspective
Special Issue 2007 Carolus, Peter et al

Peter Carolus, Thierry Galani Tiemeni and Kurt Ziervogel look critically at the Insolvency Act prior to the amendments of 2002 and the limited protection it gave workers on the insolvency of the employer. The effect of the Act was that workers' contracts of employment were automatically terminated by their employer's...

FORUM CONTRIBUTION: Ten years of the CCM: An assessment for labour
Special Issue 2007 Bernikow, Ronald

Ronald Bernikow examines certain key areas of the CCMA's operations and the challenges it faces within the broader context of our labour laws. The article deals with the current state of CCMA service delivery as well as the debate over what has been termed the 'over-proceduralisation' of dispute resolution at...

FORUM CONTRIBUTION: The growing informalisation of work: Challenges for labour
Special Issue 2007 Dicks, Rudi

Rudi Dicks discusses the South African phenomenon of 'informalisation' of the workforce, which is characterised by workers shifting from permanent employment to casualised and fixed-term contracts, outsourcing and employment through labour brokers.

These forms of employment are accompanied by, lack of job security, undermining of basic conditions of employment, erosion...

FORUM CONTRIBUTION: Dismissals for operational requirements
Special Issue 2007 Gandidze, Tapiwa

Tapiwa Gandidze discusses dismissals for operational requirements in terms of the LRA with reference to the code of good practice on dismissals for operational requirements.

The author also analyses the 2002 amendments to the LRA which allow workers either to strike about the reason for dismissals or refer such a...

FORUM CONTRIBUTION: Enforcement difficulties in the public and private sectors
Special Issue 2007 Brown, John

John Brown examines the enforcement of CCMA arbitration awards in terms of the LRA, as well as the enforcement of private arbitration awards in terms of the Arbitration Act of 1965. The author analyses relevant case law and highlights the real practical difficulties facing worker litigants in enforcing arbitration awards...

FORUM CONTRIBUTION: Commentary on communications decided by the African Commission on Human and Peoples' Rights in 2004
Volume 11(2) - 2007 Kaguongo, Waraguru

Waruguru Kaguongo reports on issues arising from decisions handed down by the African Commission on Human and Peoples' Rights in 2004. A total of 12 communications were considered in that year, with seven communications being decided on the merits.

The article is divided into two main sections: issues implicit...

FORUM CONTRIBUTION: Fair trial rights, freedom of the press, the principle of open justice and the power of the Supreme Court of Appeal to regulate its own process
Volume 11(1) - 2007 De Villiers, Wium

In this case study Wium de Villiers discusses the Constitutional Court's endorsement of the SCA decision in SABC Ltd v National DPP and Others, to the effect that it would only allow Shabir Shaik's application for leave to appeal to be broadcast if it was satisfied that it would...

FORUM CONTRIBUTION: The need for a human rights culture
Volume 11(1) - 2007 Manuel, Trevor

In celebration of Human Rights Day, Minister of Finance Trevor Manuel delivered the 4th Dullah Omar Memorial Lecture on 20 March 2007. The lecture examines the notions of 'continuity' and 'change' in the human rights context in South Africa's recent history.

Dealing with specific challenges against the backdrop of...

FORUM CONTRIBUTION: Communications before the African Commission on Human and Peoples' Rights 1988-2002
Volume 10(1) - 2006 Killander, Magnus

This article gives an overview of the work of the African Commission on Human and Peoples' Rights with regard to individual communications from its first decision in 1988 until the end of 2002. The African Commission on Human and Peoples' Rights was established in 1987 after the entry into...

FORUM CONTRIBUTION: A summary of some cases on HIV/AIDS
Volume 5(2) - 2001 Rugege, Sam

Sam Rugege provides concise commentary on two important recent judgments involving discrimination on the basis of HIV/AIDS. The first is a decision by the South African Constitutional Court in Hoffmann v South AJrican Airways [2000] I I BCLR 121 1 (CC) based on the constitutional equality clause.

This case...

FORUM CONTRIBUTION: South African court rules on the state's obligation to prevent mother-to-child transmission of HIV
Volume 5(2) - 2001 Budlender, Geoff

In Treatment Action Campaign and Others v Minister of Health and Others 2002 (4) BCLR 356 (T) the Pretoria High Court found in favour of the Treatment Action Campaign and others and against the Minister of Health on the issue of mother-to-child HIV transmission. The steps taken by the...

FORUM CONTRIBUTION: Comment on the Code of Good Practice: Key Aspects of HIV/AIDS and Employment
Volume 5(2) - 2001 Vergnani, Tania and Nikki Schaay

Drawing on their experience in drafting an HIV/AIDS workplace policy for the University of the Western Cape, Tania Vergnani and Nikki Schaay reflect on the Code of Good Practice: Key Aspects of HIV/AIDS and Employment in terms of its ability to assist in defining and refining HIV/AIDS policies. They...

FORUM CONTRIBUTION: A New Constitution and a Bill of Rights
Volume 4(2) - 2000 Langa, Pius

Deputy Chief Justice Pius Langa argues that, while the advent of the constitutional era is very significant, the Constitution is only a guideline for nurturing the life of the nation. With rights go responsibilities.

Being able to exercise our rights also requires us to respect the rights of others...

FORUM CONTRIBUTION: African case law review
Volume 4(1) - 2000 Rugege, Sam

Sam Rugege's report on recent cases of interest to the African continent focuses on one of the recent Zimbabwean land invasion cases, highlighting the tension between a court system seeking to maintain the rule of law and an executive resistant to it. It also discusses a case relating to...

FORUM CONTRIBUTION: A summary of some recent cases of interest to the African continent
Volume 3(1) - 1999 Rugege, Sam

Sam Rugege discusses a few recent cases dealing with issues of African continental interest. These include the right of defence force members to join trade unions and to participate in protest action (South Africa); the right of the press to freedom of expression and the duty to inform the...

FORUM CONTRIBUTION: Labor Law for the 21 st century: Stalled reform in the United States
Volume 1(1) - 1997 Klare, Karl E

This document by Karl Klare, an eminent labour law scholar and one of the originators of the critical legal studies tradition in the USA, is a slightly shortened version of his submission to the Dunlop Commission, appointed by President Clinton to investigate the future of management-labour relations in the USA...

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