People want to work, yet most have to labour: Towards decent work in South African supply chains, pp 1-27
Author/s: Von Broembsen, Marlese
The rights of labour have been described as 'claims of reciprocity for the reality of being labour'. For over 12 million unemployed South Africans the possibility of labour is denied, and those who labour informally increasingly enjoy limited 'claims of reciprocity' despite wide-reaching labour and employment laws and the inclusion of justiciable labour rights in the Constitution. This paper is concerned with a particular category of informal workers, namely informal craft producers who access formal markets through intermediaries. The paper questions the relevance of the traditional labour law lens, which seeks to frame the relationship between the intermediary and the producers as one of employer/employees, in this context. The paper argues for a broader lens than the binary employer/employee or triangular firm/broker/worker lens. It suggests that value chain analysis, which focuses on the entire supply chain, captures the complexity of the work relations and, more importantly, the extent of the power relations at play. The paper argues further that voluntary codes, regulatory or self- governance of supply chains seldom have redistributional effects and thus explores the redistributional potential of commercial incentives. Specifically, the paper considers whether the Broad-Based Black Economic Empowerment framework could be used by intermediaries and producers to achieve redistributive leverage.
Read more
The state of civil society participation in Parliament, pp 29-48
Author/s: Muntingh, Lukas
This article explores the extent of public participation in the legislative, oversight and accountability mandates of Parliament. From the analysis of data on public participation in the work of Parliament the key conclusion is drawn that the current state of public participation is almost exclusively focussed on the legislative mandate and that public participation in relation to the accountability and oversight mandates of Parliament is extremely limited. Defining a new legal order for South Africa based on the Constitution after 1994 required Parliament to finalise hundreds of pieces of legislation in a relatively short period of time. In completing this momentous task, the oversight mandate of Parliament was neglected and consequently public involvement in respect of Parliament's oversight mandate. However, the lessons learnt and jurisprudence that has emerged from the 15-year focus on legislation has provided valuable guidelines in deepening participatory democracy in South Africa. The right to public participation in the work of Parliament has now been consolidated based on the Doctors for Life and King decisions, which are discussed in the article. The next challenge is for the public to utilise this right in order to support and strengthen the manner in which Parliament fulfils its oversight mandate.
Read more
The narrative of vulnerability and deprivation in protection regimes for the internally displaced persons (IDPs) in Africa: An appraisal of the Kampala Convention, pp 219-252
Author/s: Juma, Laurence
Domestic legal systems are often incapable of providing protection to internally displaced persons (IDPs) to the level warranted by international and regional standards. This article suggests that one of the reasons for this anomaly is that international and regional protection regimes respond to the narrative of vulnerability and depravation more positively than the domestic systems. Domestic legal systems are often incapable of providing protection to internally displaced persons (IDPs) to the level warranted by international and regional standards. This article suggests that one of the reasons for this anomaly is that international and regional protection regimes respond to the narrative of vulnerability and depravation more positively than the domestic systems. This is because domestic systems are underwritten by rigid constitutions with a positivist orientation and are therefore less susceptible to the fluidity and flexibility that the narrative portends. Moreover, these systems often succumb to elite manipulation, corruption and political gerrymandering. This article argues that whereas the gap between international normative standards and domestic ones is not unique to IDP protection, the phenomenon provides an opportunity for infusing the notions of vulnerability and depravation into the normative transformation/change debate engendered by the current state of most political systems in Africa. To illustrate this theoretical postulation, the article examines the propriety of the recently passed Kampala Convention against the domestic systems of IDP management and protection in regions with higher incidence of displacement, such as Uganda and Kenya, and suggests that one of the ways in which the gap could be bridged is by re-conceptualising the narrative so that it becomes a tool for normative change. This approach, the article argues, places the narrative at the centre of legal reform and constitutional change, and emboldens the quest for improving IDP protection regimes across the continent.
Read more
Constructing the amicus curiae procedure in human rights litigation: What can Uganda learn from South Africa?, pp 199-218
Author/s: Mubangizi, John C and Mbazira, Christopher
The 'amicus curiae' procedure is gradually entrenching itself as part of judicial and legal practice. Human rights activists and advocates the world over are increasingly using this procedure in both domestic and international courts as a tool for influencing the outcomes of judicial proceedings. The 'amicus curiae' procedure is gradually entrenching itself as part of judicial and legal practice. Human rights activists and advocates the world over are increasingly using this procedure in both domestic and international courts as a tool for influencing the outcomes of judicial proceedings. The procedure is used to ensure that courts are responsive to the human rights needs of vulnerable and marginalised groups and individuals. Some jurisdictions however, are yet to take full advantage of the procedure. Such jurisdictions can learn from countries like South Africa which has adopted the procedure by entrenching it in its procedural laws and embracing it as part of judicial practice. Many organisations in South Africa have taken advantage of this by making timely, well researched and invaluable interventions. This has contributed a lot to the development of the now envied South African human rights judicial jurisprudence. The Ugandan judiciary, legal practitioners and human rights activists can draw lessons from South Africa. The first step is to entrench the amicus procedure as part of Uganda's procedural law. This should be followed by encouraging advocates to use the procedure and urging the judiciary to accept and define liberal and well developed principles for its application.
Read more
Protecting inmates’ dignity and the public’s safety: A critical analysis of the new law on medical parole in South Africa, pp 185-198
Author/s: Albertus, Chesne
This article discusses the new medical parole system introduced by the Correctional Services Amendment Act 5 of 2011. It seeks to establish whether the new system is capable of giving effect to inmates' right to dignity and the public's right to safety. Specific questions are posed to ascertain the impact that the new system will have on inmates' dignity. This article discusses the new medical parole system introduced by the Correctional Services Amendment Act 5 of 2011. It seeks to establish whether the new system is capable of giving effect to inmates' right to dignity and the public's right to safety. Specific questions are posed to ascertain the impact that the new system will have on inmates' dignity. It includes questions regarding the application process and the criteria for eligibility for medical parole. These questions are discussed with a view to determining whether inmates will be assured of objective and fair decisions regarding their applications. Public safety, though it is not the primary consideration insofar as medical parole decisions are concerned, cannot be overlooked. To this end it is thus considered whether the safeguards afforded by the new medical parole system will adequately protect the public against repeat offending by medical parolees. In this regard the 'low risk of re-offending' is analysed to gauge its impact on the public and on inmates. The possibility of revoking medical parole is also discussed as a measure that gives effect to public safety. It is concluded that the new medical parole system poses many challenges which will encroach upon both inmates' right to dignity and the public's right to safety.
Read more
Defining the term basic education in the South African Constitution: An international law approach, pp 162-184
Author/s: Simbo, Chiedza
This paper locates the term basic education in international law and recognises it as a term defined by the World Declaration on Education for All. The paper argues that the term basic education provided by the South Africa Constitution connotes the quality of education that the government should provide and not merely the provision of a compulsory number of years that a learner is supposed to attend school. Whilst basic education for both children and adults is an unqualified human right in South Africa the problem is that the South African Constitution does not define the term basic education and the term has no definite meaning in national jurisprudence. It is not clear whether the term connotes mere school attendance for a specified number of years or the quality of education that the educational institutions should provide. Determining the scope and content of the term basic education in a country like South Africa where millions of people are still to receive a basic education is an important process that might help the government to delineate its obligations and to devise methods to ensure compliance with section 29 (1) (a) of the South African Constitution. Further, it might enable the public to mark out government's obligations and to identify its violations and then demand compliance. This paper locates the term basic education in international law and recognises it as a term defined by the World Declaration on Education for All. The paper argues that the term basic education provided by the South Africa Constitution connotes the quality of education that the government should provide and not merely the provision of a compulsory number of years that a learner is supposed to attend school.
Read more
Democracy and pretend democracies in Africa: Myths of African democracies, pp 139-161
Author/s: Uwizeyimana, Dominique E
Based on the analysis of a number of printed and electronic media, this paper rejects the myth of a special kind of African democracy as well as the claim perpetrated by some African leaders that western liberal democracy is not compatible with African traditions. Literature shows that democracy as a modern style of governance is in theory and practice a European phenomenon that has grown out of European history and built on European social ideals and political movements. Since the early years of African independence (1950/60s) most of Africa's heads of state and government have rejected liberal democracy and the values and principles on which it is based, arguing that this system of government is not compatible with African traditions. However, despite having rejected liberal democracy and the values on which it is based, most African leaders like to describe the regimes of their countries as democratic. They claim to have an essentially African democracy or a kind of indigenous democracy, which is different from western liberal democracy. Based on the analysis of a number of printed and electronic media, this paper rejects the myth of a special kind of African democracy as well as the claim perpetrated by some African leaders that western liberal democracy is not compatible with African traditions. It also argues that a small number of fully democratic African states in the post-colonial era have adopted unmediated liberal democratic values and that any attempt on the part of an African leader to subvert the principles of liberal democracy, as developed in Europe and North America, has led most African regimes to become what this paper has called pretend democracies.
Read more
Towards a human rights-based approach to trade and investment in Africa in the context of globalisation, pp 101-117
Author/s: Mubangizi, John C
This article explores the implications of globalisation in Africa, in the specific context of human rights, trade and investment. It begins by discussing the meaning of, and the relationship between, human rights and globalisation. The article also explores the relationship between globalisation, trade and investment on one hand and human rights, trade and investment on the other. This article explores the implications of globalisation in Africa, in the specific context of human rights, trade and investment. It begins by discussing the meaning of, and the relationship between, human rights and globalisation. The article also explores the relationship between globalisation, trade and investment on one hand and human rights, trade and investment on the other. A discussion on the implications of globalisation and human rights on trade and investment in Africa would be incomplete if it didn't take into account Africa's unique challenges such as poverty, disease, unemployment, conflict, corruption and poor governance. The paper highlights these challenges before making suggestions on a suitable balance between globalisation, human rights and trade and investment. Fundamental to this balance is a human rights-based approach. This approach entails embracing a culture of human rights, and placing it at the centre of all trade and investment processes and outcomes. It requires, for example, that any trade or investment treaty that conflicts with human rights norms should be considered null and void. The article posits that adopting a human rights-based approach towards trade and investment can go a long way towards mitigating the adverse effects of globalisation in Africa, and the resultant implications for trade and investment. It is then concluded that if the balance between human rights and trade and investment is right, human rights can be good for trade and investment, and vice-versa.
Read more
Gender-specific HIV policies and programmes at South African workplaces, pp 89-100
Author/s: Vettori, Stella
The purpose of this article is to explore how legislation and common law can be creatively interpreted in the light of the Constitution, soft law and international law so as to create legal duties on the part of employers to implement gender-specific policies and practices in the fight against HIV/AIDS, thereby helping to achieve equality and dignity. However, it is acknowledged that the law, even if imaginatively interpreted in the interests of equality and dignity, cannot alone bring about these ideals. Sexual, cultural and economic transformation can only be achieved in the light of a profound understanding of the fundamental causes of gender inequality so that pro- active strategies to eliminate them can be devised and implemented. Fundamental rights such as the right to equality and the right to dignity can form the foundational basis upon which to ground these strategies and programmes. This foundation must serve as a premise for a society where altered roles related to gender can be learned by society in general. Since commonly accepted expectations with regard to male and female behaviour are of prime importance in the spread of HIV/Aids, changes in these accepted gender roles is where the potential for the elimination of the spread of HIV/AIDS lies.
Read more
A foreskin too far? Religious, medical and customary circumcision and the Children’s Act 38 of 2005 in the context of HIV/AIDS, pp 69-88
Author/s: Sloth-Nielsen, Julia
This article analyses the legal framework surrounding male circumcision (infant and youth) in South Africa, having explained the requirements of international human rights law. Provincial legislation regulating traditional circumcision is detailed, followed by an explanation and analysis of the relevant provisions of the Children's Act 38 of 2005 and its accompanying Regulations. Thereafter the recently changed context, as evidenced by the current campaign for mass male circumcision as a means of preventing HIV/AIDS, is considered. The implications for the narrow circumstances in which circumcision is legalised by the Children's Act are then explored, and further potential results - in the longer term - for traditional circumcision practices are predicted.
Read more
Application of the African Charter by African sub-regional organisations: Gains, pains and the future, pp 49-68
Author/s: Ebobrah, Solomon T
When the African Charter on Human and Peoples' Rights was adopted in 1981, its founding fathers may have envisaged and hoped that the spirit and content of the Charter would seep down into municipal legal systems for the benefit of African citizens. However, it is doubtful if even the most visionary of African leaders or the most optimistic of human rights advocates ever foresaw the adoption of the African Charter by other African international organisations. By 2007, the African Charter had become such a common feature in the founding instruments of some regional economic communities in Africa that it was asserted that the Charter was gaining the status of a common sub-regional human rights standard. Since then, the idea of human rights has moved from its lifeless mention in treaty documents into the court rooms of sub-regional judicial bodies and the work of other organs of the sub-regional organisations. While the African Charter has also moved along with the concept of rights realisation in the sub-regional organisations, there have also been theoretical and practical challenges to its application. The Charter is becoming entrenched as an adopted catalogue within the framework of certain RECs, yet in others it is fighting for its survival as an applicable instrument. This contribution analyses the application of the African Charter in sub-regional organisations between 2007 and 2010. The contribution highlights the gains and pains in the application of the Charter and makes projections for the future.
Read more
Between tax competition and tax harmonisation: Coordination of value-added taxes in SADC member states, pp 119-138
Author/s: Letete, Puseletso
This paper examines strategies which can be adopted for achieving regional integration through the harmonisation of value added tax (VAT) laws in Southern Africa. The paper looks into the extent to which harmonisation of VAT in SADC member countries can be used as one of the tools towards economic integration and development. This paper examines strategies which can be adopted for achieving regional integration through the harmonisation of value added tax (VAT) laws in Southern Africa. The paper looks into the extent to which harmonisation of VAT in SADC member countries can be used as one of the tools towards economic integration and development. The other related important aspect which this paper looks into is the issue of harmonisation of VAT laws and the question of tax competition in the broader context of impacting on economic activities of member countries and their full integration process. Where VAT policies of countries within an economic grouping are not harmonised, tax competition is likely to arise as a result of differences in the tax treatment of goods and services in these countries. This analysis is especially applicable within a process of economic integration, for example, in a common market or economic union or a customs union. Eleven of the 15 SADC member states have introduced VAT, while four other countries without a VAT have alternative domestic indirect tax systems. It is imperative that the four SADC member states should consider introducing a VAT for tax harmonisation in this area to progress.
Read more
FORUM CONTRIBUTION: Towards a more activist parliament more engaged with civil society, pp 1-11
Author/s: Carrim, Yunus
This contribution consists of the edited text of a speech delivered by Yunis Carrim at the launch of the Community Law Centre's Parliamentary Programme in Cape Town on 20 October 2010, and is reproduced here because of the importance of the issues it addresses in the context of South Africa's evolving democratic practice. The central conclusion is that 'neither Parliament nor civil society organisations are sufficiently recognising the value of effective engagement between them. Yet if they worked creatively together they would be able to put the executive under more pressure to deliver more effectively. The state alone cannot ensure a significant improvement in service delivery and development. ... So new opportunities are opening up for a more active role for civil society organisations. Let us make creative use of this. It's over as much to you as it is to Parliament to do so. Are you up to it?'
Read more