Law, Democracy 
&  Development

Law, Democracy 
&  Development


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Volume 27 (2023)

The right to privacy in the decriminalisation of psilocybin mushrooms in South Africa, pp 1-30

Author/s: Sebastian William Foster

This article assesses the right to privacy as a ground for challenging the constitutionality of the criminalisation of psilocybin mushrooms. In doing so, it discusses the right to privacy as found in section 14 of the Constitution of the Republic of South Africa, 1996 (Constitution). Drawing on Constitutional Court case law, the article argues that the right to privacy is a fundamental right that deserves paramount protection, even in instances where individuals engage in illicit activities within the confines of their personal realm of privacy.

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Migration and climate change in Africa: A differentiated approach through legal frameworks on the free movement of people, pp 31-54

Author/s: Victor T Amadi and Molya ND Vundamina

The global consequences of rapid climate change cannot be overstated. In Africa, drought, flooding and environmental degradation are increasingly important drivers of migration, affecting already vulnerable and indigenous persons, together with factors such as conflict, poverty, and weak democratic governance. This article argues for alternative ways to protect vulnerable persons, alternatives which include regional integration frameworks on mobility.

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The African Union’s quest for a “peaceful and secure Africa”: An assessment of Aspiration Four of Agenda 2063, pp 55-92

Author/s: Linda Mushoriwa

This article undertakes a comprehensive assessment of the African Union (AU)'s Agenda 2063 Aspiration 4: A peaceful and secure Africa and the progress made at continental level towards it. Aspiration 4 is informed by the AU’s acknowledgment that the scourge of conflict on the continent plays a significant role in hampering socio-economic development. Against this background, the article examines the role played by the AU and its regional economic communities (RECs) in response to armed conflict on the continent.

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Beyond labels: Executive action and the duty to consult, pp 93-122

Author/s: Nurina Ally and Melanie J Murcott

Whether executive action attracts a duty to consult has been contested judicial terrain. In this article, we aim to contribute to the development of a principled approach to requiring consultation in executive decision-making. We grapple with the distinction between procedural fairness as a requirement of just administrative action and procedural rationality as a requirement of the principle of legality. We then move beyond these labels by engaging with the values underlying the Constitution’s vision of participatory democracy.

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Disarming the dispirited South African: A critical analysis of the proposed ban on firearms for self-defence, pp 123-148

Author/s: Windell Nortje and Shane Hull

In South Africa, owning a firearm is a privilege and not a right. This privilege is regulated by the Firearms Control Act 60 of 2000. In May 2021, the Minister of Police published the Firearms Control Amendment Bill (FCAB), 2021, which contains a section prohibiting individuals from obtaining a firearm for self-defence purposes. This article challenges this view and argues that firearm owners should not be banned from protecting their right to life with a firearm.

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An overview of categories of vulnerability among on-demand workers in the gig economy (Part 2), pp 149-182

Author/s: Dina Maria (Denine) Smit and Grey Stopforth

Platform work in the gig economy has become a universal phenomenon, even more so in the socially distanced landscape of COVID-19. Characteristic of the Fourth Industrial Revolution, hundreds of thousands of on-demand workers across the globe today earn a living by performing tasks assigned to them via digital platforms. In part 2, we delve deeper into the various forms of vulnerability among on-demand workers in the gig economy, with a particular focus on developing countries such as South Africa.

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The constitutional implications of pension deductions under the Pension Funds Act of Lesotho: A comparative analysis, pp 183-213

Author/s: Mtendeweka Mhango and Kananelo Mosito

This article discusses the constitutional implications of pension deductions in the kingdoms of Eswatini and Lesotho. The article is based on a constitutional problem that arose in Government of Eswatini v Mhlanga, where the Supreme Court declared section 32(2) of the Retirement Funds Act 2005 unconstitutional on the grounds that it conflicted with the Constitution.

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Multiple discrimination experienced by women with disabilities in the workplace in South Africa, pp 214-239

Author/s: Yvette Basson

Persons with disabilities have historically been members of one of the most marginalised groups in society. Access to employment has been a major barrier to the socio-economic empowerment of those with disabilities. The intersection of gender- and disability-based unfair discrimination is not yet widely recognised, and it may not be as familiar as traditional concepts of discrimination. This intersection is important however, because it may affect the participation of women with disabilities in various aspects of society. There is growing recognition that women with disabilities face greater barriers against full participation in society, since they must overcome unfair discrimination related to both their gender and their disabilities.

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Reflections on the justiciability of the “national security” clause as stipulated by section 18A of the Competition Act 89 of 1998: Lessons from Russia – Measures Concerning Traffic in Transit WTO Panel Decision, pp 240-264

Author/s: Simbarashe Tavuyanago and Clive Vinti

This article discusses the justiciability of the national security clause of the Competition Act 89 of 1998, which was introduced through recent amendments to the merger regulation framework. The clause provides for the executive, through the establishment of a national security committee, to intervene in mergers which may pose a threat to national security interests of the country.

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The right of access to information vs the right to privacy in Tiso Blackstar Group (Pty) Ltd & Others v Steinhoff International Holdings N.V. (18706/2019) [2022] ZAWCHC 265 (10 May 2022), pp 265-277

Author/s: Siphethile Phiri

In Tiso Blackstar Group (Pty) Ltd and Others (the applicants) v Steinhoff International Holdings N.V. (the respondent) (18706/2019) [2022] ZAWCHC 265 (10 May 2022) (Tiso), the applicants approached the Western Cape High Court Division in terms of the Constitution and PAIA to enforce the right of access to information against the respondent’s right to privacy on the alleged ground of legal privilege. This article examines the manner in which the court addressed the question of the fulfilment of the applicants’ right of access to information as per the Constitution and the provisions of PAIA vis-à-vis the protection of the right to privacy of the respondent company as guaranteed by the Constitution.

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Advocating for mediation as a way to de-escalate conflict, with a focus on medico-legal claims: The anatomy of human conflict, pp 278-303

Authors: Errol C Muller and Cornelis F Swanepoel

The incidence and extent of medico-legal claims in South Africa has increased exponentially over the past number of years. Conventionally, medical negligence claims follow the civil litigation route, while alternative, perhaps better-suited, dispute resolution techniques and mechanisms are seldom considered. Where the occasional disputant does opt for mediation instead of civil litigation, mediators are not adequately versed in the human behavioural factors of conflict, even though these are crucial in establishing an appropriate strategy to de-escalate conflict and achieve settlement. Paying particular attention to medical negligence claims, this article draws on interdisciplinary sources to propose practical guidelines for mediators, whether existing or aspirant, to develop their mediation styles and strategies with regard to the thought processes and psychological factors behind disputes.

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Limitations on the rights of migrant workers: Is a compliant and consistent approach being followed? pp 304-329

Author: Kamalesh Newaj

Integral to the right to work is the right to choose one’s trade, occupation or profession freely. This is a constitutionally protected right, but is reserved exclusively for citizens, which implies that migrant workers can be lawfully excluded from working in certain occupations or professions. Against this backdrop, this article engages with the recent Constitutional Court decision of Rafoneke v Minister of Justice and Correctional Services where temporary residents were denied the right to be admitted to practise and be authorised to be enrolled as legal practitioners. The article seeks to establish whether this decision, which has been viewed as disappointing, complies with international law and upholds the legal principles endorsed in preceding cases.

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The political economy of political corruption in 21st century Africa: Perspectives from Cameroon and South Africa, pp 330-359

Authors: Anzanilufuno Munyai and Jean-Claude N Ashukem

In South Africa and Cameroon, political corruption continues to impede growth and development, despite the prevalence of anti-corruption mechanisms in these countries. From a comparative perspective, we investigate the scale and consequence of political corruption in South Africa and Cameroon to analyse the existing anti-corruption mechanisms, strategies and regimes in the two countries in combatting political corruption. We further analyse how and to what extent courts, particularly the Special Crime Court in Cameroon, have been able to address the issue. A proactive system of checks and balances is urgently required to quench the growing cancerous phenomenon of political corruption in Africa, specifically in Cameroon and South Africa.

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Evaluating the potential impact of National Health Insurance on medical scheme members’ rights to have access to health-care services in South Africa, pp 360-391

Author: Davy Rammila

The National Health Insurance Bill proposes to establish a national health insurance scheme that aims to provide universal access to health-care services for everyone. Section 33 of the Bill also proposes to limit the provision of parallel services by medical schemes if such services are provided or covered by the NHI scheme. The establishment of the NHI scheme is likely to have a negative effect on the existing access rights of general private health-care users, particularly members of medical schemes. The NHI scheme may enhance access to and the quality of health-care services for millions; however, enabling large portions of the population to access services currently provided by costly private practitioners – services at present almost exclusive to a minority – is not without its perils. It risks negatively impacting on existing access rights and reducing the quality currently enjoyed by users of private health-care services.

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Protecting the human rights of pregnant and parenting adolescents in Lesotho: ‘What’s culture got to do with it?’ pp 392-425

Authors: Puleng Relebohile Letsie and Charles Ngwena

Poor health, social exclusion, and stigma are usually associated with adolescent pregnancy and parenting, resulting in girls’ suspension and, in some instances, expulsion from school. While most African states, including Lesotho, have laws and policies protecting the rights of all children, including adolescents, to enroll and be retained in school, implementation is lagging behind. Using a socio-legal approach, the article explores the challenges in implementing policies and guidelines on school re-entry following pregnancy and/or parenthood, with particular reference to Lesotho. It argues that, despite the adoption of enabling laws and policies protecting sexual and reproductive health rights, and the right to education of pregnant and parenting adolescent girls, punitive and discriminatory practices continue to serve as barriers that undermine countries’ human rights commitments.

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Do prospective parents have a right to bury their deceased previable foetuses? A discussion of how the Constitutional Court has created great legal uncertainty, pp 426-449

Author: Sarah Fick

The Constitutional Court, in Voice of the Unborn Baby NPC v Minister of Home Affairs, was faced with a request to recognise a constitutionally protected right to bury a deceased previable foetus. This is a sensitive topic, since many persons who lose a foetus in utero wish to bury the remains for personal or religious purposes. Prior to this case, the general understanding was that such burials were prohibited in terms of the Births and Deaths Registration Act (BADRA), which allows the burial only of viable foetuses. The case, therefore, turned on whether BADRA permits the burial of a deceased previable foetus and, if not, whether this is unconstitutional. The High Court found that BADRA does not allow such burials, and that this is unconstitutional. The Constitutional Court, however, found that BADRA does not prohibit such burials, since such deaths are not covered by the Act at all. This article discusses the lacuna that the Constitutional Court’s decision created. It specifically considers whether such a right is protected in the Bill of Rights, and what the current law is regarding the burial of previable foetuses.

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Do women face discrimination under the Islamic law of succession? An examination of the male-preferential 2:1 rule of inheritance, pp 450-467

Author: Mohamed Hoosain Sungay

There is a common belief that women’s rights and Islamic Shariah law (finding its basis in the Holy Quran and the Prophetic teachings) are intrinsically at odds with one another. The 2:1 ratio of inheritance in favour of the male, which is enshrined in the Holy Quran, is the subject of this article’s investigation into whether the Islamic law of succession discriminates against women. The paper explores the justification for this controversial rule, and further indicates that it is merely a general rule, not an absolute one. To address the main query of this article, a range of primary and secondary sources that cover various facets of this rule and its implementation are relied upon. The article demonstrates that, contrary to popular belief and much beyond what "modern civilisation” has provided, Shariah law grants women far more rights than might initially be thought to exist.

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Democracy and the rule of law: Comparative lessons between Uganda and South Africa, pp 468-490

Author: John C Mubangizi

The importance of democracy and the rule of law cannot be overemphasised, as they create an environment in which a country can promote development, protect its citizens, and ensure equal access to justice for all. The two are closely linked to each other: the rule of law is necessary for any democracy to function. However, the degree to which these ideals are achieved varies from country to country and depends on numerous internal and external factors. This article explores the extent to which Uganda and South Africa have achieved these ideals and the comparative lessons that the two countries could learn from each other.

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