Law, Democracy 
&  Development

Law, Democracy 
&  Development

JOURNAL OF THE FACULTY OF LAW | UNIVERSITY OF THE WESTERN CAPE

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> Volume 28 (2024)

The potential influence of Sustainable Development Goal 6.1 in the South African legislative context, pp 1-20

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.

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Impediments to the democratic participation of foreign nationals in public-school governance, pp 21-49

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.

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The prevalence of cybercrimes and hacking incidents and their impact on the confidentiality of documents in civil proceedings, pp 50-75

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.

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Judicial problem-solving: An evaluation of Grobler v Phillips and Others [2022] ZACC 32, pp 76-101

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.

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A critique of the efficacy of the right to shelter for street children in Kenya, pp 102-128

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.

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A turning-point for transitional justice? Political violence in Zimbabwe, and transformative justice as a way forward, pp 129-151

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.

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The evolving developmental role of the state as public trustee of South Africa’s natural resources and property, pp 152-173

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.

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Eliminating racial discrimination of employees: An assessment of the Employment Equity Act 55 of 1998, as amended, pp 174-195

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.

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A critical analysis of Massmart Holdings and Others v South African Commercial Catering and Allied Workers Union [2022] ZALCJHB 119, pp 196-214

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.

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The rights of women in unregistered customary marriages in Zimbabwe: Best practices from South Africa, pp 215-236

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.

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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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Legislating marine intangible cultural heritage in South Africa, pp 491-515

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.

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State and intergovernmental organisations: Copyright, public domain, and the public interest in Africa, pp 516-538

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.

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A question of underlying interests: Economic justice, constitutional history and the capture of the South African state by white economic interests, pp 539-570

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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