Law, Democracy
& Development
Law, Democracy
& Development
JOURNAL OF THE FACULTY OF LAW | UNIVERSITY OF THE WESTERN CAPE
Author: John C Mubangizi
This article explores the implications of unconstitutional changes of government (UCGs) for democracy and the rule of law in Africa from a human rights perspective. It critically examines how UCGs erode democratic institutions, undermine the rule of law, and facilitate human rights violations by weakening accountability mechanisms and suppressing political dissent. Drawing on case studies of Mali, Guinea, Sudan, and Chad, the article highlights the socio-political dynamics and institutional fragilities that enabled military takeovers or extra-constitutional successions, as well as the domestic and regional responses to these crises. The analysis reveals that UCGs often result in transitional regimes that lack legitimacy, perpetuate repression, and deepen civic disenfranchisement. The article argues that safeguarding democracy and the rule of law in Africa requires sustained commitment to constitutional order, proactive regional intervention, and the protection of human rights as foundational pillars of governance. It concludes with recommendations aimed at preventing UCGs and mitigating their impact, including strengthening constitutional safeguards, bolstering regional normative frameworks such as the African Charter on Democracy, Elections and Governance, and enhancing the role of regional bodies such as the African Union in enforcing anti-coup norms.
Author: Yolani Ndamase
This article examines the historical development and contemporary influence of selected public interest objectives in South Africa's competition law. It traces the trajectory from colonial and apartheid-era statutes that entrenched monopoly power and excluded black entrepreneurs to the transformative ambitions of the Competition Act 89 of 1998 and its 2018 amendments. The article argues that while public interest provisions were introduced to promote economic inclusion, their implementation has been inconsistent and susceptible to excessive ministerial discretion and conceptual vagueness. A review of case law reveals doctrinal tensions between traditional competition adjudicative frameworks and the Act's transformative objectives. The article contends that the transformative potential of competition law will remain unrealised unless these tensions are resolved through more explicit interpretive guidance and a principled balancing of public interest factors. It concludes that South Africa's competition regime must strengthen the adjudicative framework and ensure institutional independence in order to transform competition law from a symbolic policy commitment to a substantive mechanism for advancing inclusive and equitable economic justice.
Authors: Zingapi Mabe; André Boraine
Insolvency law in South Africa limits the insolvent's fundamental rights, such as the right of access to adequate housing under section 26 of the Constitution of South Africa, 1996. This limitation arises because the Insolvency Act 24 of 1936 does not exempt the insolvent's primary residence from vesting in the insolvent estate, vesting that may therefore render the insolvent and his or her family homeless. Before an application for compulsory sequestration can succeed, the applicant must prove a reason to believe that the sequestration will benefit the estate's creditors. The courts exercise their discretion to grant or refuse a sequestration order, depending on whether this requirement is satisfied. In special circumstances, the court may exercise its discretion to refuse a sequestration order. Special circumstances in Body Corporate of Old Trafford v Muronzi (016676/2023) [2024] ZAGPPHC 623 (21 June 2024) were held to infringe an insolvent's right to adequate housing without judicial oversight. Rule 31 and rule 46A of the Uniform Rules of Court require the court to consider alternatives to execution before declaring a property executable in an application for default judgments involving a debtor's home. This case note explores whether rule 46A should also be considered in sequestration applications, where a debtor may be rendered homeless. It also discusses how the right to access adequate housing is enforced in sequestration proceedings. The case note shows that the courts exercise their discretion and creatively apply the advantage requirement to enforce section 26 of the Constitution in the absence of special rules governing judicial oversight of sequestration proceedings.
Author: Davy Rammila
A host state has the sovereign right to expropriate property, including that belonging to aliens, granted that such expropriation is subject to the complementary customary international law duty to pay the expropriated alien compensation. Through the mechanism of investment treaties, capital-exporting states have sought to regulate this process of expropriation and codify the duty to compensate in respect of their citizens' investments in foreign lands. When expropriation occurs, compensation is therefore required. However, where regulation is pursued in the public interest, host states are said to possess the right under their so-called “police powers” to regulate without the need to tender compensation even if such regulation has an expropriatory effect. The police powers doctrine, which has come to be accepted by various international investment tribunals, has proven controversial, as it has been used to exempt states from their international law duty to compensate investors for such regulatory expropriations. In its current formulation, the doctrine places the burden of the public interest wholly upon the investor without the state's needing to shoulder the same. Several authors have proposed frameworks that attempt to balance the application of the doctrine. This article examines one such framework – the so-called mitigated police powers – and explores its ability to address the problems created by strict applications of the police powers doctrine. The article concludes that the mitigated police powers framework provides a reasonable, fair and arguably defensible basis for adjudicating the competing interests involved.
Author/s: Leonard C Opara; Deon Erasmus; Leah A Ndimurwimo
As global attention turns to the issue of internally displaced persons (IDPs), the African Union (AU) contends with fundamental questions about its policies in this regard. Worldwide, millions of people have been displaced within their territorial jurisdictions due to armed conflicts, violence, or natural disasters. The situation calls for humanitarian assistance and protection, with the number of IDPs continuing to grow and coming with significant social and economic costs. This article explores the challenges the AU faces as a regional institution in implementing its Kampala Convention of 2009 in response to the plight of IDPs. To this end, the article analyses the legal regime of the Convention and associated policies and actions that provide protection to IDPs, including the obligations of state parties to assist such persons. It recommends that AU member states provide practical solutions to integrate displaced persons, such as adopting legislative measures for social grants to enhance the socio-economic rights of IDPs. It argues that the issue of IDPs in Africa is a major humanitarian concern that requires urgent attention. The AU, in partnership with international community and other stakeholders, must address the root causes of displacement while ensuring the protection and rights of IDPs. Key actions include conflict resolution, economic development, climate adaptation, and legal protection. The Kampala Convention should be enforced to safeguard the rights of IDPs, while global cooperation can provide funding and support. A sustainable, rights-based approach is essential to improving the lives of millions of displaced people in Africa.
Author/s: Yeukai Mupangavanhu
The development and increased use of artificial intelligence (AI), particularly generative AI, raises pressing legal issues. AI impacts every aspect of the law, including intellectual property law. Human beings are no longer the masters of innovation: the question that arises, then, is whether AI-generated inventions should be legally recognised and protected. This article aims to contribute to the debate surrounding the complexities of protecting and regulating AI-generated inventions and the possible departure from human inventorship in the light of current technological advancement. It is argued that a rethinking and modification of some of the intellectual property rules, particularly in the context of patents, is required in order to ensure a balance of protectionism and innovation. The article stresses the need for a proactive approach and inclusive legal framework that accommodates the rise of generative AI while ensuring fair and appropriate protection for human inventions.
Author/s: Shéan Jamie Rippenaar
A recent call in the legal profession in South Africa for universities to produce a greater number work-ready graduates, has seen many law faculties, whose focus is on research and academic teaching, asking how this is to be achieved. The University of the Western Cape (UWC) Law Clinic believes it has found the answer: Workplace Integrated Learning (WIL). This involves the provision of both in-office and out-of-office WIL opportunities – in-office, in the form of a working duty period at the office, and out-of-office, in the form of an assignment requiring students to attend court and observe practitioners and others at work. These opportunities have been used by the UWC Law Clinic to raise the skill level of final-year law students and so increase their employability. It was found that WIL opportunities provided immense value for students. This includes developing students’ communication, drafting and interpersonal skills. However, while this is a means to improve the skills graduates require in the workplace, various challenges, such as higher student numbers and resource constraints, need to be overcome before WIL could see mainstream implementation in South African law schools. Thus, although WIL is a possible answer to the call made to university faculties of law by the legal profession, certain obstacles would have be overcome before this solution could be of benefit to all.
Author/s: Tasné Marshall
Recidivism refers to an offender's relapse into criminal behaviour that results in his or her rearrest or reincarceration. It points to shortcomings in the correctional system and reveals the ineffectiveness of addressing criminal behaviour through existing procedures. In view of these shortcomings, offenders then remain in a cycle of release and rearrest since current rehabilitation programmes to combat recidivism are less effective than anticipated. Indeed, South Africa is known to have the highest recidivism rate in the world, peaking at 97 per cent. This raises the question of why South African recidivism rates are so high and what could be done to address the problem. It is thus important to investigate the reasons for such high recidivism rates, given that little research has been done on the issue. To this end, the article examines various socio-economic and psychological factors, such as education, employment, mental health, and substance abuse, to explore the link between them and recidivism. This is an important enquiry, as the failure to address these factors during rehabilitation decreases offenders' prospects of effective reintegration into society once released from prison. The article argues that needs-based rehabilitation programmes are essential to reduce recidivism rates, alleviate prison overcrowding, and, most importantly, successfully rehabilitate offenders; conversely, the "one-size-fits-all" approach taken to rehabilitation needs to be abandoned since it has proven to be ineffective.
Author/s: Samantha Smit
This article discusses how a waste picker’s rights to human dignity as well as to work and an ability to earn a livelihood are inextricably linked together. When an individual’s property rights threaten a vulnerable worker’s ability to earn a livelihood, such rights must be weighed against each other and evaluated in context. A private landowner is expected to accept a certain limitation of property rights when a vulnerable person’s ability to work, and therefore right to human dignity, is in the balance. Waste pickers are vulnerable members of society, and existing rights, such as the ability to access landfills – which, in turn, affords the right to earn a livelihood – should be protected. Not protecting waste pickers’ right to work and ability to earn a livelihood undervalues their labour despite the contribution it makes to limiting the negative environmental effects of waste.
Author/s: Geo Quinot
This article examines the legal position surrounding tender validity periods in South African public procurement law. It traces the evolution of jurisprudence on this issue from early High Court judgments to recent Supreme Court of Appeal decisions. The article highlights the established principle that a procurement process ends when the tender validity period lapses without extension or award. It explores the requirements for a valid extension, including the timing of requests and the necessity of bidder consent. The article critically analyses conflicting interpretations in recent case law, particularly regarding which bidders must consent to an extension. It argues that the approach taken in the Aurecon case (where only bidders still under consideration need to be involved in the extension process) is the most logical and one most aligned with constitutional principles. The article proposes a comprehensive rule for handling tender validity periods, emphasising the obligation of organs of state to act proactively as expiration approaches. It concludes that a procurement process should be able to continue if at least one qualifying bidder extends their tender validity period, thereby balancing the constitutional principles of competitiveness and cost-effectiveness in public procurement.
Author/s: Hoitsimolimo Mutlokwa
Achieving spatial inclusivity remains a challenge in South Africa. In 2025, the country marks 31 years of democracy, so it is opportune to reflect on how well the courts have fared in securing working-class’ freedoms in the struggle against spatial apartheid. Section 26 of the Constitution refers to the right to housing as subject to progressive realisation, a right which overlaps with ILO Recommendation 115 in regard to locating workers’ housing conveniently close to places of employment. However, the case of Minister for Transport and Public Works: Western Cape & others v Adonisi and Others (522/2021 & 523/2021) [2024] ZASCA 47 (12 April 2024) suggests that, for many workers in cities, the dream of equality remains unfulfilled. Here, the applicants sought to appeal an unfavourable decision from the court a quo, arguing, amongst other things, that provincial and local authorities were not compelled to provide social housing in specific areas. This case note examines the fairness of the decision, drawing inspiration from the capability approach. More widely, it assesses the extent to which freedoms have been realised after 31 democracy by looking at the social housing practices of provincial and local governments.
Author/s: Daniel M Walyemera
The role of philanthropy in financing Africa’s development needs is undervalued, even though the contributions that development partners from the Global North make in enabling the continent's development financing are inestimable, given the amount of development aid that Africa receives. There is, however, a growing view that, with the dwindling resources available in the Global North for the development of the Global South, African philanthropy should be harnessed as an alternative source of financing within the Global South. This is in keeping with the human right to development, which entails that the advantages of development should be enjoyed equitably by all of humanity, regardless of geographical location. Taking Uganda as its case study, this article contributes to those rising voices.
Author/s: Alfred Maropefela
The Constitutional Court in Mahlangu and Another v Minister of Labour and Others 2021 (2) SA 54 (CC) (“Mahlangu”) dealt with the constitutionality of section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993, which excluded domestic workers from the definition of “employee” and as a result denied them the social security benefits provided under the Act. This case note argues that, notwithstanding this ruling, there are solutions that still need to be explored to enable domestic workers to be fully / sufficiently protected in terms of labour law. In particular, the note demonstrates that the court could have extended its jurisprudence and provided legal certainty about the protection that ought to be afforded to domestic workers who are statutorily excluded. In addition, stricter measures should be taken to ensure that domestic employers comply with their statutory obligations and make certain that their domestic employees receive social security and other benefits under the law. The case note concludes by proposing that legislation be enacted to address problems surrounding the recognition and employment of domestic work within employment law.
Author/s: Lindani Mhlanga
Democracy is often simplistically equated with the principle of "one man, one vote," implying an equal voice for every citizen in governance. However, this idealized notion frequently obscures the complexities and disparities inherent in post-colonial African democratic systems. In theory, each vote should hold equal weight, yet economic power frequently distorts this balance. This paper examines the interplay between democracy, constitutionalism, and socioeconomic inequalities in South Africa, with a focus on how global and local economic leverage shape the ideological formations and deformations of democratic outcomes. Through an analysis of post-apartheid economic structures, the study interrogates voter equality and questions who truly holds power in South Africa's democratic state.
Author/s: Linda Mushoriwa
This article provides an up-to-date analysis of the root causes of unconstitutional change of government (UCG) in Africa through military coups, causes which include corruption, economic decline, failure to institute democratic governance, and dissatisfaction with election outcomes. The discussion traces the phenomenon of coups back to the first wave of military takeovers in the 1960s and 1970s when, during the Cold War, African states were asserting their newly attained independence. Here, the focus is on the example in Ghana of Kwame Nkrumah’s ouster. The article also highlights the root causes of the second wave of coups between 1990 and 2001, using Sierra Leone as a case study. It then examines the third wave of coups that began in 2020, and focuses on the ones in Mali, Guinea and Gabon. This provides a basis for interrogating the efficacy of the African Union (AU) and Economic Community of West African States (ECOWAS) sanctions regime as a mechanism to respond to UCG. The contention is that sanctions often have the unintended consequence of causing hardships for ordinary people rather than the targeted military leaders. The article concludes that, given that military coups continue to see a resurgence in spite of the comprehensive AU and ECOWAS response frameworks, what is needed in order to end the scourge of military coups in Africa is a proactive rather than reactive approach – one which is combined with the political will among African leaders to implement policies advancing good governance and democracy.
Author/s: Sue-Mari Viljoen
The article describes private property’s essential features as it operates in South African law to show how and why it functions within a distinct realm of the law. The unique nature of private property is explained in order to reflect on its core characteristics, specifically that of being a right in rem and enforceable against the whole world. Noting this feature, the article investigates theoretical approaches that challenge the notion of unyielding property principles and redefine property as a state-created regulatory measure that responds to political and socio-economic imperatives; core features are especially prone to allow for exceptions and adaptations that pave the way for new property constructs. The article argues that private property’s wealth-enhancing, protective features continue to flourish for a minority group in South Africa; exceptions to core features remain exceptional because private property has not been adequately leveraged to act as a normatively acceptable restorative measure. A constitutionally driven notion of private property that responds to forms of vulnerability in order to shore up individual and communal resilience has therefore not progressed via constitutional avenues.
Author/s: Willemien Du Plessis and Saul Ngarava
The Constitution of the Republic of South Africa, 1996 provides for a right to access sufficient water and food. The right to access to water is elaborated upon in other legislation, while the right to access to food has not been developed in South African law. The Constitution places an obligation on local government to provide services that include water and energy provisioning. Local government is also responsible for indigent policies and by-laws directed towards providing basic access to water, energy and food to deserving households. Each municipality follows its own rules in this regard, but in principle it should provide a core minimum volume of water and a kilowatt of electricity to cover at least the most important of necessities. Where a municipality cannot provide electricity to the community, it should provide an alternative form of energy. It seems that the right to access food is realised via the social security grant system. Based on our empirical research, it seems that most households exist solely on these grants. This article provides a case study of selected rural communities’ knowledge of the law and their rights regarding their access to water, energy and food. To this end, the researchers undertook 1,184 household surveys in three rural areas in South Africa. The results make it clear that there are real concerns as to whether the Constitution and legislation reaches people on the ground and that more measures are needed in order to improve the situation.
Author/s: Maphuti D Tuba
There are different legal ways in which a litigant can access information held by other persons, state organs and regulatory bodies, one of which, for example, is by means of the Financial Intelligence Centre (FIC). Another is by accessing such information in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA), which was promulgated in terms of section 32(2) of the Constitution of the Republic of South Africa of 1996. Alternatively, the litigant may invoke rule 35 of the Uniform Rules of Court to discover documents during legal proceedings. In certain instances, legislation may provide measures on how to access certain information that relates to the regulatory scope. An example of such legislation is the Financial Intelligence Centre Act 32 of 2001 (FICA), which regulates access to information reported to the FIC as a regulatory body to prevent financial crime. Litigants, however, often experience challenges in putting their case within the provisions of FICA or in determining other legal avenues to access the relevant information. The decision of the Western Cape Division of the High Court in Ndudane and Others v Financial Intelligence dealt with access to information in terms of sections 40(1)(e) and 41(d) and (e) of FICA. This case note examines how the court interpreted and applied these sections, other relevant pieces of legislation, and the Constitution as avenues for accessing information. More importantly, it critically analyses the impact of this decision on continuing cases of termination of bank accounts and how bank customers may use the relevant legislative provisions to access information to establish reasons for the termination, including discrimination by banks as a ground for termination. The discussion identifies one potential development raised in this case in relation to cases of termination of bank accounts. The development relates to how fairness was cited as a ground to access information relating to the termination of bank accounts. Therefore, the discussion also determines the correctness of applying fairness as an ground or defence for the termination of bank accounts.
Author/s: Lungisani David Neke
Section 26 of the Constitution and judicial pronouncements related thereto have progressively resulted in the amendment of certain court rules. Judgments which inspired changes in related court rules include those in Gundwana, Jaftha, Grootboom and Saunderson. Most of these cases sought to infuse the element of judicial oversight into specific formal litigation procedures with the potential to result in the loss of homes. Among the rules subsequently altered, mention can be made of Magistrates’ Courts rules 5, 12, 43, and 43A, and High Court rules 31, 46, and 46A. These rules regulate mechanisms in civil procedure with the potential, in other instances, to culminate in eviction processes against homeowners, such as summonses, default judgments and, significantly, executions. The language used in some of the court rules amended in the quest for instituting constitutional safeguards against evictions has seemingly been a cause for concern, necessitating interpretation by various courts. High Court rules 46 and 46A, extending to their Magistrates’ Courts counterparts, are cases in point. The confusing wording of these rules has attracted the attention of recent case law for purposes of effective implementation. The perceived shortcomings of these court rules, High Court rules 46 and 46A in particular, are critically explored in this article, with recommendations made with a view towards enhancing civil procedural instruments in eviction-related matters.
Author/s: Muhammad Sameer Kasker
Water is at the very core of sustainable development, as it is critical for a thriving people and planet. In recent years, there have been increasingly urgent warnings of a global water crisis. From an international perspective, the most recent development dealing with water access, conservation and management is Sustainable Development Goal 6 (SDG 6), which forms part of the 2030 Agenda for Sustainable Development. This article focuses on the domestic implementation of SDG 6.1 against the backdrop of current South African legislation dealing with water access and management. The aim of the article is to analyse SDG 6.1 and determine if and how it can be incorporated into South African water legislation in order to give effect to it and grant it legal legitimacy in the domestic context.
Author/s: Callixte Kavuro
In their efforts to promote the constitutional values of equality, human dignity and freedom, public-school laws and policies emphasise non-discrimination in the admission of learners and democracy in the professional management and governance of public schools. The democratisation of post-apartheid public schools must comply with democratic participation and representativity. Whereas democratic participation can be realised through the exercise of active voting rights, democratic representativity can be achieved through the exercise of passive voting rights. This article explores notions of democracy, non-discrimination, and representativity so as to examine and highlight factors that may restrict or inhibit the participation of foreign nationals in school governing body elections.
Author/s: Nombulelo Queen Mabeka
Confidentiality is important in legal practice as it obligates legal practitioners to protect clients’ information. It is often linked to the right to privacy entrenched in section 14 of the Constitution of the Republic of South Africa, 1996. The link is made on the basis of clients’ entitlement to attorney-client confidentiality. Furthermore, the rules of courts in civil proceedings require legal practitioners to include clients’ personal or confidential information in court documents, including their identity numbers. The requirement of clients’ personal information in court documents is found in particular in Rule 3(A)(1)(b)(i) of the Uniform Rules of Court, 2009 as amended. This personal information is uploaded online in the CaseLines system, as required by Practice Direction 1 of 2023, a situation which poses a significant risk because such information may be hacked and used to commit cybercrimes. The article examines current legislation, the respective rules of court, and the approach followed by the courts, in order to determine whether confidentiality does indeed exist in civil proceedings.
Author/s: Arthur van Coller
The South African Constitutional Court was recently tasked with considering whether the “just and equitable” requirement of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act had been complied with when an eviction order was granted in the Somerset West Magistrates’ Court. The Magistrates’ Court found that the occupier unlawfully occupied the land and determined that the eviction was just and equitable in the circumstances. However, the High Court and the Supreme Court of Appeal held that the order of the Magistrates’ Court could not be confirmed. With certain conditions attached, the Constitutional Court held that the eviction was just and equitable. These judgments are noteworthy as they highlight the inconsistencies in the reasoning of the various courts that considered the same facts. The conclusion is that judicial reasoning which creates tension between the rights of private landowners and unlawful occupiers is not constructive. Ideally, evictions should be resolved by enforcing a potentially homeless person’s right to access adequate housing by holding the state to account for its constitutional obligations.
Authors: Leah Alexis Ndimurwimo, Esther Nasimiyu Wanjala, and Asande Felix Makori
The right to housing or shelter is a fundamental right that has been given recognition at national, regional, and international levels. In Kenya, everyone’s right to access adequate housing and basic shelter is enshrined in the Constitution of Kenya, 2010 and various international and regional human instruments, but there is no specific legislation or policy that caters to the right of street families and children to access housing or shelter. The gap that exists in law and policy deepens the vulnerability of street families and children, who are being left behind and not included in governmental socio-economic programmes and interventions targeting vulnerable and marginalised persons. For example, street children are often excluded from planning, budgeting, and national decisions relating to socio-economic rights that include shelter. This article considers how Kenya’s street children’s right to shelter may be protected. Accordingly, it recommends measures that could be taken to protect their right to shelter, as well as other socio-economic rights, and thereby create a pathway to realising the values of equality and human dignity enshrined in the Constitution.
Author: Tinotenda Chidhawu
Since the year 2000, elections in Zimbabwe have been hotly disputed and marred by violence. Victims of politically orchestrated violence have received neither apology nor compensation from the government. Whilst transitional justice mechanisms such as the due processes of law, closure for victims, indemnification, and the restructuring of state institutions are essential to ensure justice, there is a need to go beyond the legal system and focus on socio-economic issues. Transitional justice’s emphasis on the state and institutions is not enough, given that communities and citizens’ concerns due to weak statehood are seldom considered. This article engages with key aspects of transitional justice and, aligning itself with voices from the margins, places greater emphasis on transformative justice, which it regards as a step towards grassroots reconciliation and the prevention of further rights violations. Transformative justice emphasises peacebuilding initiatives, as well as conflict transformation and development, in the interests of securing sustainability in the future. The study does not dismiss or reject transitional justice as a field of practice and scholarship, but argues rather that transformative justice can complement it. While transitional justice should be applauded for identifying the core themes that characterise and establish a terminus a quo for ensuring justice, the dilemmas raised in allied disciplines and contemporary scholarship and practice call for a broader framework informed by an intersectional analysis of the complexities and contradictions of state–society relations.
Author: Anthea-Lee September-Van Huffel
Through its environmental laws and policies, the state needs to ensure the ecologically sustainable development and use of South Africa’s natural resources, while promoting justifiable economic and social development. Thus, the view that property owners may not use their property in ways that prejudice the community and other peoples’ interests in environmental resources must be considered. This corresponds with the acknowledged stance that property, in its widest sense, has a “public or civic or proprietary” aspect to it that transcends individual economic interests, and that private property ownership should be inherently limited for the benefit of society at large. Property is, therefore, intimately bound up with the socio-economic security and well-being of all South African citizens. Since a developmental state actively guides economic development and the use of the country’s resources to meet the needs of the people, the developmental role of the state should serve the public interest. In South Africa, though, the public function of property is frequently usurped by the government’s developmental-state ambitions and influenced by political and economic considerations that affect the socio-economic fabric of the country. The South African government, as public trustee of the nation’s natural resources, must regulate access to and use of natural resources by exercising its stewardship ethic. However, this is not always the case when it comes to critical resources like water and land – a situation that perpetuates the historically imbalanced distribution of wealth in South Africa.
Author: Jeannine van de Rheede
The Employment Equity Act 55 of 1998, as amended, was enacted inter alia to “achieve equity in the workplace by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination”. In terms of the Act, no person may discriminate against an employee unfairly, but research shows that racial discrimination of black employees persists, despite the promulgation of the Act. The objective of this article is to determine whether the Employment Equity Act 55 of 1998, as amended is the appropriate vehicle to eliminate racial discrimination of black employees. This is undertaken through the lens of critical race theory, which analyses the ways in which ignoring the importance of race perpetuates oppression. Although critical race theory was developed in the United States, it is relevant to South Africa given that black employees are still subjected to racial discrimination even many years after the end of apartheid. The tenets of critical race theory include structural determinism; the critique of liberalism; social science insights, historical analysis and multidisciplinary thinking; intersectionality; storytelling, narrative, and naming one's reality; and anti-essentialism. This article examines each tenet and shows how they relate to the Act. The contention is that the Employment Equity Act 55 of 1998, as amended is not the most appropriate vehicle for eliminating racial discrimination of black employees in South Africa.
Author: Marvin R Awarab
South African law under the Labour Relations Act 66 of 1995 (LRA), as amended, confers on the Labour Court the power to adjudicate on issues relating to strikes and to grant an interdict and/or order the payment of just and equitable compensation for any loss attributable to the strike or lockout. At least 48 hours before the strike, workers or their trade unions must give written notice of their intention to strike to the employer, the applicable negotiating council, and the Commission for Conciliation, Mediation, and Arbitration. If a strike follows the law, workers who take part in it are shielded from being fired for no other reason than that they are striking. Employees on strike and their trade unions are shielded from lawsuits for any losses or harm sustained while on the protected strike. During an unprotected strike, workers lose the legal protections afforded by labour laws, leaving them open to legal action and possible termination. In the case under review – Massmart Holdings and Others v South African Commercial Catering and Allied Workers Union [2022] ZALCJHB 119 – the trade union, from whom the employer sought compensation for damages caused during a protected strike, objected to the Labour Court’s jurisdiction as derived from the LRA. This article provides a critical review of the Labour Court’s jurisdiction, particularly in the light of section 68 of the LRA, to order compensation. The analysis revisits previous judgments to test the correctness of the judgment given in the Massmart case.
Author: Priccilar Vengesai
Zimbabwe’s marriage regime is regulated by the Marriages Act No. 1 [Chapter 5:17] of 2022 (Marriage Act, 2022). According to the Marriage Act, 2022, the proprietary consequences of all marriages solemnised and registered following its provisions are regulated by the Matrimonial Causes Act [Chapter 5:13] of 1985 (Matrimonial Causes Act). Yet unregistered customary marriages are neither solemnised nor registered in terms of the Marriage Act, 2022. As such, a gap in law is created in which unregistered customary marriages fall beyond the regulation of the Matrimonial Causes Act at divorce. In other words, when it comes to divorce, unregistered customary marriages are not guaranteed the equitable distribution of matrimonial property contemplated by the Matrimonial Causes Act. This position affects the property, cultural and equality rights of women who are in unregistered customary marriages. It is thus recommended that Zimbabwe follow the example of South Africa, which has recognised the validity of unregistered customary marriages even at divorce. This in turn calls for the reform of marriage laws in Zimbabwe.
Author: Kim-Leigh Loedolf; Megan Hector
South Africa faces a shortage of skilled workers due to long-standing systemic challenges that prevent it from producing the skills necessary for economic development. In 2021, only 25 per cent of persons employed in South Africa were considered highly skilled. The critical skills work visa has been designed to facilitate the employment of skilled immigrants, but is unsuitable for doing so in the case of skilled asylum seekers and refugees, even though the latter could alleviate the shortage of skilled workers. While members of this group are eligible to apply for a critical skills work visa, they face significant obstacles that hinder their chances of obtaining one. This article highlights the barriers this group encounters and draws lessons from Canada’s Economic Mobility Pathways Project, which has successfully connected skilled refugees to employers and filled in-demand positions. In South Africa, the likelihood of obtaining a critical skills work visa without governmental intervention is low for many in this group, resulting in a waste of their skills. The article compares the South African case to how Canada has integrated skilled refugees to occupations requiring skills. Canada’s partnerships with NPOs such as Talent Beyond Borders have been vital in assisting skilled refugees and connecting them to employers. The article thus argues that to employ skilled refugees in positions commensurate with their skills, the South African government has to assist and form partnerships with organisations specialising in this cause.
Author: Lindani Mhlanga
This article examines the relationship between neoliberalism and legal culture in South Africa, focusing on how the neoliberal paradigm influences legal interpretation and the adjudication of socio-economic rights. It explores how neoliberalism, defined as the dominance of capitalist forces over weaker oppositional interests, permeates judicial decision-making, shaping how courts address issues of inequality and social justice. The article argues that neoliberalism, in prioritizing market interests, has contributed to a conservative legal inertia that prevents transformative legal outcomes. This dynamic has entrenched existing socio-economic disparities, especially as state power continues to serve the interests of capital, reinforcing apartheid-era economic structures. Despite the transformative potential embedded in South Africa's constitutional framework, the legal system remains constrained by what Karl Klare terms as professional sensibilities, codes, and values, many of which are influenced by neoliberalism. Drawing on theoretical insights of Karl Klare, the article calls for a rethinking of legal culture and a shift towards more relational, metaphorical approaches that challenge hegemonic narratives. Only by resisting these metanarratives can meaningful transformation be achieved in the pursuit of equality and justice.
Author: Ntando Ncamane
The Covid-19 pandemic required states worldwide to take action to contain it and, as part of this effort, adopt measures to mitigate its socio-economic impacts. In South Africa, these measures include the enactment of lockdown regulations in terms of the Disaster Management Act 53 of 2005. This article focuses on one of the measures, namely the Covid-19 Temporary Employee/Employer Relief Scheme (TERS), a system created in terms of the Unemployment Insurance Act 63 of 2001. TERS aimed to provide support to employers who were in distress at the height of the pandemic and unable to pay their employees. TERS falls under the scope of social security law because it is a measure that finds expression under the unemployment insurance system, which is an element of social insurance. This article argues, however, that temporary schemes such as TERS provide no solution to the long-standing problems of the unemployment insurance system and perpetuate its exclusionary practice of not covering informal workers. This is evident in the definitions of an employee and contributor in terms of the Unemployment Insurance Act (UIA). The two definitions lean towards offering coverage to workers in formal employment but not to informal workers. This leaves such workers destitute and vulnerable, as they have no protection; for instance, they became on furlough owing to the effects of Covid-19. This article proposes that the UIA’s definition of employees be amended to include informal workers and thereby afford them unemployment protection as well.
Author/s: Seun Bamidele; Taiwo Oladeji Adefisoye
Forced displacement is one of the most topical issues in contemporary development and humanitarian studies. Although the displacement of people across national borders and regional boundaries is not new, recent waves of forced displacement in sub-Saharan Africa have swelled numbers in displacement camps and exacerbated the abysmal conditions in these camps, attracting media and scholarly attention. This article contributes to the literature on forced displacement by examining the topic in terms of governance and transnationalism in sub-Saharan Africa. Sub-Saharan Africa is the focus of the article due to the record numbers of forced displacements in this region; specifically, cases are drawn from Nigeria. Moreover, displacement in sub-Saharan Africa involves governments and various non-state actors in multiple countries. Data for this article were sourced from the media as well as reports by various organisations, in particular in regard to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. The article concludes by pointing out the need for a more human-centric approach and for African governments to fulfil their obligations to their people in order to prevent an escalation of the problem.
Author/s: Leah Alexis Ndimurwimo
This article examines how transitional justice mechanisms have been used to reconcile warring parties in Burundi. It draws on the findings of the Truth and Reconciliation Commission (or Commission vérité et reconciliation, commonly known as the CVR) to demonstrate the deficiencies of transitional justice in addressing Burundi’s dark history. Among the key findings of the CVR report of 2021 is the revelation that the mass killings of 1972 amount to the international crime of genocide, a characterisation which is still contentious in Burundi. This article explores the strained relations between Burundi and international donors. As the year 2024 marks the passage of 52 years since the 1972 mass killings, it is surprising that many Burundians are still waiting for justice to be served. The article critically examines the application of transitional justice mechanisms through the flaws of truth-telling, reconciliation, and reconstruction in post-conflict Burundi.
Author/s: Rufaro Emily Chikuruwo; Christa Rautenbach
In this article we explore the significance, complexities, and potential of child participation in environmental decision-making by juxtaposing Greta Thunberg’s activism and the Cape Town water crisis in South Africa. Although child participation in environmental activism, as exemplified by Thunberg, has gained global prominence, it remains underexplored in South Africa. The United Nations Convention on the Rights of the Child emphasises the right of children to participate in decisions affecting their lives, yet the practical implementation of this right varies widely. In South Africa, legal frameworks such as the Constitution of the Republic of South Africa, 1996, and the Children’s Act 38 of 2005 provide a basis for child participation but often fall short, especially in environmental decision-making. Using the example of Thunberg’s global activism, we attempt to illustrate the transformative potential of child-led activism, and argue that similar approaches could benefit children’s participation in a local context, such as during the Cape Town water crisis in 2017–2018. Thunberg’s bold actions, including filing a complaint with the United Nations, demonstrate what children can achieve through activism. In contrast, the Cape Town water crisis lacked meaningful involvement with children, thus missing out on potentially innovative solutions. We conclude with recommendations to improve children’s participation in environmental decision-making in South Africa, including through policy interventions, institutional reforms, educational initiatives, and community-based campaigns. Embracing child participation could not only bring fresh perspectives to environmental challenges, but also ensure a more inclusive, democratic and sustainable future for South Africa and beyond.
Author/s: Lerato Rudolph Ngwenyama
In recent years, disputes around the relocation of occupiers under the Extension of Security of Tenure Act 62 of 1997 (ESTA) have increased significantly. This contribution analyses the case of Boplaas Landgoed (Pty) Ltd v Jonkies (LCC 37/2022) [2022] ZALCC 38 (15 August 2022) (Jonkies), in which an owner sought the relocation of ESTA occupiers from their ESTA homes to state-sponsored ones allocated to them by the state and which they owned. The aim of this case note is to critically reflect on the case of Jonkies. The argument is made that there is a distinction between “relocation” and “eviction”, and that not only owners should be able to request relocation. It is also argued that while relocations as evictions are not permitted under ESTA, ESTA occupiers who have been offered alternative housing by the state may be evicted. A balance is, however, required in the context of ESTA so as to challenge the historical hierarchy which persists between owners and ESTA occupiers, in order to transform property relations, ensure fairness, and prevent further prejudice to ESTA occupiers.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Author/s: Rosabelle Boswell
South Africa is a developing country where there is insufficient conservation of tangible and intangible cultural heritage. In this article, it is argued that the adequate conservation of both forms of heritage is important to the realisation of democracy. A long history of colonisation and apartheid means that the identification and conservation of indigenous heritages is lacking. This article proposes that the National Heritage Resources Act 25 of 1999 (NAHRA), which provides for the recognition and protection of cultural heritage, including living heritage, also insufficiently provides for marine intangible cultural heritage (MICH) in South Africa.
Author/s: Desmond O Oriakhogba
States and intergovernmental organisations (IGOs) in Africa produce and control materials that may be eligible for copyright protection. Thus, some national laws vest copyright in states and IGOs, which may be exercised to prevent access to the information contained in the materials and forestall the promotion of the public-interest objectives as articulated in sustainable development agendas (such as the African Union Agenda 2063). This makes it imperative to examine effective strategies for managing the materials produced and controlled by states and IGOs in order to promote public-interest objectives in Africa. To this end, this article determines whether the materials produced and controlled by states and IGOs are indeed eligible for copyright protection, or whether they constitute public domain resources.
Author/s: Sanele Sibanda; Ngwako Raboshakga
Understanding the South African constitutional state beyond the banal framings of liberal or transformative thinking requires a reconsideration of the prevailing approach to questions of constitutional identity or character. Rather than fixating on the ideological underpinnings that mark the identity of the South African Constitution, we suggest that more may be learnt about its nature by examining the material relations that it recognises between its various subjects and the institutions it establishes. To understand why and how South African society came to be so constituted, it is imperative to interrogate how the Constitution deals with the question of material distribution. In this respect, we focus on how white economic interests impacted on South Africa’s constitution-making processes at two distinct points in history, namely the making of the 1910 and post-1994 constitutions.
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