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: Get rights right in the interests of security of tenure
Review of Land, Power & Custom: Controversies Generated by South Africa’s Communal Land Rights Act, edited by Aninka Claassens & Ben Cousins; xv and pp 392 with accompanying DVD. Legal Resources Centre & UCT Press, Cape Town, 2008 Ann Pope gives a detailed overview of a book on a topic that has assumed critical importance in South Africa and, at the same time, analyses and comments on difficulties and dilemmas that have been encountered in securing indigenous land rights.The book was collated following the enactment of the Communal Land Rights Act 11 of 2004 and the Traditional Leadership and Governance Framework Act 41 of 2003, in preparation for a challenge to the constitutionality of the former Act by alleging that it “undermines the rights of rural people to make them less secure than before”. Judgment in Tongoane and Others v National Minister for Agriculture and Land Affairs and Others (11678/2006) [2009] ZAGPPHC 127 (30 October 2009) has since been delivered, its findings being mostly in favour of the applicants. An analysis of the judgment is followed by further reflection on a number of issues. The discussion shows that, while the applicants in Tongoane can rightly claim victory for succeeding in having several provisions of the CLRA declared unconstitutional, important questions remain unanswered. The author suggests that the implications of such omissions will need careful and thoughtful treatment by the Constitutional Court during the confirmation hearing at the beginning of March 2010. At the time of publication the judgment in this hearing was not yet available.Download full text.
FORUM CONTRIBUTION: African case law review
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 the customary law of succession in South Africa.
FORUM CONTRIBUTION: Dismissals for operational requirements
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 dispute to the Labour Court. The author concludes by providing a detailed discussion of the legal requirements that employers need to comply with in order to ensure that dismissal is procedurally and substantively fair.Download 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: South African court rules on the state's obligation to prevent mother-to-child transmission of HIV
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 state in this regard, it was held, were not in compliance with its duty to take reasonable measures to achieve the progressive realisation of the right to access to health care services.On appeal, the Constitutional Court in Minister of Health and Others v Treatment Action Campaign and Others (1) 2002 (10) BCLR 1033 (CC) similarly found that existing state policy fell short of the constitutional standard and ordered the state to ôdevise and implement within its available resources a comprehensive and co-ordinated programme to realise progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV. Geoff Budlender, who acted as attorney for the applicants in the High Court and subsequently in the Constitutional Court, provides a brief comment on the context and controversies surrounding the justiciability of socio-economic rights.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.
FORUM CONTRIBUTION: Comment on the Code of Good Practice: Key Aspects of HIV/AIDS and Employment
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 conclude that the Code takes a limited view of workplace responsibility and advocate that employers should play a greater, more pro-active role in the prevention of the spread of the disease and of discrimination, as well as in providing treatment for those living with HIV/AIDS.Download 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 growing informalisation of work: Challenges for labour
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 of workplace rights and decreasing access to skills and equity at work. The author considers the effects of the process and concludes by suggesting measures to provide legislative protection to vulnerable workers, including the establishment of a tripartite statutory body to regulate labour brokers; the development of a code of good practice for workers engaged in atypical employment contracts and improving monitoring and enforcement mechanisms through tougher penalties.Download full text.
FORUM CONTRIBUTION: Women’s Rights in Human Rights Systems: Past, Present and Future
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.

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