Who we are

Law, Democracy & Development is the journal of the Faculty of Law at the University of the Western Cape. The first issue appeared in May 1997. The journal set out to build on the proud traditions established by UWC and the Law Faculty in the struggle for democracy, with many of our staff and alumni having gone on to serve as Ministers of state, judges of the highest courts and in other key positions in the post-apartheid dispensation. Our focus is on legal and socio-legal issues relevant to the development challenges facing South Africa and Africa – above all, the nurturing of institutions of governance based on the promotion of human rights.

Mission statement

The evolution and implementation of democracy, good governance, human rights and socio-economic development are critical issues facing South Africa and Africa as a whole. Our aim is to create a forum in which key aspects of these processes can be debated by scholars, practitioners as well as those concerned with policy-making across the continent, thus contributing to the development of shared knowledge and cooperative effort.

The focus is on:

  • the way that the law regulates important aspects of the economic process such as trade and industry, labour, the environment, education, training and culture;
  • the protection and extension of rights which drive and mould socio-economic development such as political rights, gender rights, children's rights, labour rights and other rights which enable the individual to participate in civil society;
  • the influence of international and regional developments in the areas of policy and law on socio-economic development.
  • Law, Democracy & Development analyses the evolution of the law in this context and the discourse surrounding its evolution. It examines legal rules with a view to establishing how effective they are in their own terms while, at the same time, scrutinising those terms themselves in a spirit of open-ended inquiry. The objective is to contribute not only to research but also to practical application of the relevant principles by the courts and to the ongoing debate on legal reform.

Law, Democracy & Development is aimed at legal practitioners, academics, social scientists, students and all others engaged in the formulation and implementation of development policy within the framework of a democratic constitutional order.

In the spotlight

Forum contribution

FORUM CONTRIBUTION: Be careful what you wish for…?
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 trade union perspective.In particular, the advent and growing entrenchment of “trade union legalism” within South Africa’s capitalist system is highlighted. The article concludes by making recommendations on how trade unions can try to avoid these pitfalls and promote the rights of workers more effectively.Download full text.
FORUM CONTRIBUTION: Commentary on communications decided by the African Commission on Human and Peoples’ Rights in 2004
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 in the determination of admissibility, and those arising from consideration of the merits. On admissibility, the most often considered criterion was the requirement to exhaust local remedies. In determining compliance with this criterion, it is argued, the Commission displayed consistency with its previous jurisprudence. The exhaustion of local remedies, however, tended to take precedence over the other criteria and, it is suggested, the Commission failed to take the opportunity to further elaborate on the application of other criteria. In the relation to the merits, the author argues that the communications raised issue relating to evidence and the lack of consistency in how it affects decisions; the limitation of rights; the role of the Commission versus national jurisdictions; fair trial guarantees; interpretation of international treaties and the administrative capacity of the Commission and its effect on decisionsDownload full text.
FORUM CONTRIBUTION: Promoting FOCAC more maturely in the next decade - p 500
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 Ministers, a Joint Secretariat, a Committee of Ambassadors and a Joint Consultative Assembly with sub-commissions. It also proposes the need for entering into a basic cooperation agreement with legal force and strengthening the development of Sino-African NGOs.Download full text.
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
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 not inhibit justice.Professor de Villiers argues that section 12 of the Constitution should be recognised as a generic residual due process right, analogous to that of section 7 of the Canadian Charter of Rights and Freedoms, which would lead to a substantial reduction in the inconsistencies in the Constitutional Court’s jurisprudence revealed by that decision.Download full text.
FORUM CONTRIBUTION: The need for a human rights culture
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 our Constitution, he criticises problems such as corruption and concludes that more must be done to address them. Minister Manuel also discusses the importance of a culture of human rights as well as the challenges faced by South Africa in its struggle to build such a culture, and advances recommendations on how to achieve these objectives.Download full text.
FORUM CONTRIBUTION: Communications before the African Commission on Human and Peoples' Rights 1988-2002
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 force of the African Charter on Human and Peoples' Rights in 1986.The Commission received its first individual complaint in 1987 but did not take a decision on it until October 1988. By the end of 2002 the Commission had taken around 100 decisions on communications submitted to it under the individual communlcations procedureDownload full text.
FORUM CONTRIBUTION: The final curtain call for the ‘Minimum Sentences Act’
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 principle of legality in constitutional matters with reference to Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC)
This article, co-authored by LLB student Lesega Mnguni and Justin Muller as part of our ALAD programme (see Who We Are) 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 after committing a grossly indecent sexual assault on a nine-year-old girl.Although the act in question did not fall within the common law definition of rape, the Regional Court felt justified in developing the common law definition in terms of section 39 of the Constitution to include the act in question and duly convicted the accused. The High Court upheld this decision. The article examines the reasoning of the Constitutional Court in determining the meaning of the principle of legality and applying the right to non-retrospective punishment, as entrenched in section 35(3)(l) and (n) of the Constitution, under extremely sensitive and challenging circumstances.Download full text.
FORUM CONTRIBUTION: Towards a more activist parliament more engaged with civil society - F1
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 Africa’s evolving democratic practice.The central conclusion is that "neither Parliament nor civil society organisations are sufficiently recognising the value of effective engagement between them. Yet if they worked creatively together they would be able to put the executive under more pressure to deliver more effectively. ... The state alone cannot ensure a significant improvement in service delivery and development. ... So new opportunities are opening up for a more active role for civil society organisations. Let us make creative use of this. It’s over as much to you as it is to Parliament to do so. Are you up to it?"Download full text.
FORUM CONTRIBUTION: Effects on the employment relationship of the insolvency of the employer: A worker perspective
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 insolvency, leaving them with a limited preferent claim against the employer’s insolvent estate.The authors discuss how the 2002 amendments to the Insolvency Act and the LRA addressed these problems by providing for the suspension rather than termination of employment contracts in the event that the business can be saved or sold as a going concern. They also discuss the right of workers as creditors to appoint their own liquidator to supervise the liquidation process and conclude with a detailed examination of challenges faced by trade unions on issues arising from the insolvency of employers.Download full text.

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