South Africa’s post-apartheid microcredit-driven calamity, pp 92-134
Author/s: Bateman, Milford
Although once universally lauded in international development community circles as a 'magic bullet', in recent years the concept of microcredit has been increasingly recognised as having had a number of seriously adverse impacts in precisely those countries, regions and localities wherein it has gained the strongest foothold. This paper argues that the microcredit model in South Africa provides one of the most vivid examples of this revised understanding. I argue that microcredit has been one of the most calamitous financial sector interventions impressed upon post-apartheid South African governments by the international development community. Adherence to the 'anti-developmental' microcredit model has manifestly added considerable impetus to the ongoing and widely recognised trends pushing South Africa's economic structure in the direction of further de-industrialisation, informalisation, disconnectedness and primitivisation. Needed progress towards greater trust, equality, solidarity, reciprocity, mutual support and social justice in post-apartheid South Africa has been undermined and blocked by the increasingly Wall Street-style operations of those financial institutions providing microcredit to South Africa's poor. I compare this adverse performance to a stylised benchmark local financial model that I call the 'developmental' local financial model, a financial model that proved to be a major factor in post-war European and Asian local economic development successes. Overall, my contention is that microcredit should more accurately be viewed as South Africa's own sub-prime-style disaster which, like the original US version, has mainly served to benefit a tiny financial elite working within and around the microcredit sector, whilst simultaneously destroying many of the most important pillars of the economy and society.
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A critique of the protection afforded to non-standard workers in a temporary employment services context in South Africa, pp 334-346
Author/s: Tshoose, Clarence and Tsweledi, Benjamin
Atypical employment relations, such as part-time work, temporary employment services, short-term, contingent work and independent contracting, have become increasingly prominent ways of organising work in recent years. Given its flexibility, labour broking is an international phenomenon, indicative of the needs of a rapidly changing global village, where industries expand and contract at increasing speed and modify their product offerings to match prevailing global demand. Against this background the article aims to examine the status of labour broking in South Africa. This article advances several reasons for the use of labour broking by employers. These reasons also indicate that labour broking should be seen in the broader context of atypical employment relationship. Similarly, the paradoxical mix of glamour and precariousness often associated with labour broking is discussed. The article also provides the latest trends and challenges facing labour broking in South African labour law.
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Contemporary trends in provincial government supervision of local government in South Africa, pp 178-201
Author/s: Mathenjwa, Mbuzeni
The purpose of this article is to establish whether the practice of provincial government supervision of local government corresponds to the legal position and whether, perhaps, adjustments are required to bring the practice of supervision in line with the established legal position. The article is based on law as well as empirical studies based on interviews with officials in municipalities in various provinces.
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Reflections on the rejection of the right to sexual orientation by the institution of traditional leadership: Lessons from South Africa, pp 80-91
Author/s: Ntlama, Nomthandazo
The quest for the removal of the right to sexual orientation in the Constitution of the Republic of South Africa by the institution of traditional leadership has generated debate on the regulation of traditional authority in line with the foundational values of the new dispensation. The debate, among others, raises questions as to the effect of traditional values such as ubuntu in the protection of these values under the system of traditional authority. Although Ubuntu is not an easily defined concept, it is proclaimed as an overarching African philosophy which encapsulates the collective respect for all the rights for all people without distinction. This article focuses on the importance of ubuntu in the protection of the rights of couples in same-sex relationships in the regulation of the traditional authority. The author argues that traditional leaders cannot use their position of authority and influence to promote divisive and stereotypical attitudes.
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Driving corporate social responsibility through black economic empowerment, pp 58-79
Author/s: Kloppers, Henk
Black economic empowerment (BEE) is one of the primary instruments in the government's attempt to redress the legacy of apartheid and is ultimately aimed at empowering Black South Africans to fully participate in all spheres of society in order to address economic inequalities. The BEE framework attempts on a progressive basis, to address the economic needs of a section of society that has been adversely affected by past government policies. The BEE framework includes the BEE Generic Scorecard which is used to evaluate the extent to which businesses have complied with the elements included in the Scorecard. The Scorecard includes the elements of skills development, preferred procurement; enterprise development; and socio-economic development. This article submits that these elements can directly be linked to corporate social responsibility (CSR) and given South Africa's history might be viewed as an adapted version of CSR. Given the lack of explicit steps taken by government to support CSR, the article identifies the mentioned elements of the Generic Scorecard as possible implicit measures aimed at furthering the CSR agenda. The article identifies a number of key definitions and discusses, within the context of CSR, the four elements of the scorecard. The article concludes with recommendations on how to further ensure that CSR becomes more embedded in the corporate culture.
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Divorce and the law of Khul: A type of no fault divorce found within an Islamic legal framework, pp 37-57
Author/s: Booley, Ashraf
The non-recognition of Muslim marriages in South Africa goes back as far as the case of 'Seedat's Executors v The Master (Natal)' where the Appellate Court in 1917 expressly stated that 'with us marriage is the union of one man with one woman, to the exclusion, while it lasts, of all others'. As a consequence, South African courts have concluded that Muslim marriages are potentially polygynous and therefore invalid. The South African courts under a progressive constitutional dispensation gradually moved from this position. Islam set in motion a new course and introduced innovative standards concerning the rights and duties of women. One of the standards introduced by Islam was the transformation of a woman from being an 'object of sale' and directing the husband to pay 'mahr' (dowry) to his wife. The institution of marriage in Islam is regarded as one of the most virtuous and approved acts. However, Islam also permits the dissolution of marriage. The dissolution of marriage must be exercised only under exceptional circumstances. In most instances, Muslims would give preference to reconciliation because of their belief system that Islam despises divorce. 'Khul' refers to a woman's right to divorce under Islamic shari'ah law. It is considered to be a release for payment by the wife, and thus a woman is liberated from her marriage in return for some (or all) of the 'mahr' she was paid at its inception. There are a number of disadvantages when a wife seeks a divorce by way of 'khul'. One such disadvantage is that when the marriage is dissolved by this method, not only is the marriage dissolved, but the husband's duty to pay a deferred' mahr' also evaporates. Yet the practice continues to be met with resistance and for some women a 'khul' divorce remains difficult to obtain, as there must be a fear of desertion, abuse or sin in order for it to be granted. And since the payment of compensation or the renouncement of any financial claim is central to the notion of 'khul', only women who have the financial means may have access to such a divorce.
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Regional integration in the area of intellectual property: The case for Southern African Development Community involvement, pp 317-333
Author/s: Nkomo, Marumo
The Southern African Development Community (SADC) has played an important role in efforts to integrate the economies of its Members. This has been most prominent in the context of trade in goods and, most recently, services. While the SADC Protocol on Trade makes perfunctory reference to the need for its Members to comply with the Agreement on Trade Related Aspects of Intellectual Property Rights, there are no substantive or operational provisions outlining the proposed contribution of the SADC to this end. As cross-border trade and economic integration within the region increase, the existing territorial approach to intellectual property is becoming more and more inadequate. The existing regional intellectual property organisations in Africa have sought to bring a regional approach to intellectual property on the continent. African Regional Intellectual Property Organisation, the dominant forum as far as SADC countries are concerned, operates in a fragmented manner which can be seen to frustrate the business simplification objective of regional integration. Certain institutional limitations also call into question the suitability of the body as an appropriate platform for the advancement of regional integration in the context of intellectual property. This article makes a case for the participation of the SADC.
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The SADC regional bloc: What challenges and prospects for regional integration?, pp 22-36
Author/s: Mapuva, Jephias and Muyengwa-Mapuva, Loveness
Regional integration has been a global phenomenon seeking to strengthen the economic performance of countries within a specific bloc. In Africa, different regional economic blocs have manifested themselves as fronts for preferential trade, a bulwark against tariff regimes, as well as legal forums for co-operation and trade liberalisation. The establishment of the Southern African Development Community (SADC) regional grouping has been informed by the desire for regional economic integration, co-operation and co-ordination. However, the regional body has encountered several challenges that have hindered the much anticipated regional economic integration. This article discusses the most primary of these challenges which include over- ambitious targets set by SADC as a roadmap to economic regional integration; multiple and concurrent memberships to different regional economic communities (RECs); the heterogeneity nature of SADC economies which has provided for uneven economic environment; duplication emanating from the activities of (the Southern African Customs Union) SACU and the SADC; the intricacies of rules of origin; different levels of economic development within SADC member states; as well as the failure of the SADC Tribunal to provide recourse to justice and act as a unifying platform for member states. The domineering nature of Zimbabwe in the proceedings and verdict of the SADC Tribunal points to the fact that lack of sincerity, as well as egocentricity on the part of some boisterous SADC member states have shown that it is difficult for the bloc to achieve regional integration based on mutual trust. As long as some member states are more equal than others, achieving regional integration based on mutual trust and selflessness would be difficult. Additionally achievements that have been attained by the SADC towards integration are discussed.
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Development as a right in Africa: Changing attitude for the realisation of women’s substantive citizenship, pp 224-239
Author/s: Ozoemena, Rita and Hansungule, Michelo
The right to development is entrenched in Africa-based international human rights instruments. Yet, the majority of African people suffer great indignity due to poverty occasioned by inequality and disempowerment. The group most affected are women and their vulnerability is further exacerbated where the majority of them do not enjoy substantive citizenship. Substantive citizenship presupposes that they (women) are active participants towards their own socio-economic development through the elimination of discriminatory laws that adversely affect them. Socio-economic development can only be protected where women have legal claims to the entitlements that arise from national recognition and identity. We argue in this article that the basis therefore, for holding governments accountable for the duty to promote the right to development starts with citizenship rights. Where citizenship rights are compromised, development in social, economic, political and cultural spheres remains an illusion.
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Rights discourse and practices, everyday violence and social protests: Who counts as subject and whose lives are real in the neo-colonial South African nation state?, pp 1-21
Author/s: Stewart, Linda
This article seeks to illustrate the disjunction between the lived realities of marginalised, displaced and impoverished collective bodies in the neo-colonial South African nation state and the language, politics and practices of human or constitutional rights that represent them. The article commences with a discussion of the relationship between neo-liberal capitalism, complex legal organisation and the rising number of social protests in South Africa. It focuses on the shack settlements on the edges of South African cities.
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Human rights, core labour standards and the search for a legal basis for a trade-labour linkage in the multilateral trade regime of the World Trade Organization, pp 240-263
Author/s: Warikandwa, Tapiwa V and Osode, Patrick C
The multilateral rules which regulate international trade do not effectively recognise a need to protect core labour standards in trade. The omission of a trade-labour linkage clause in the legal framework of the World Trade Organization (WTO) compromises social justice. The incorporation of such a clause would advance efforts to ensure justice in labour practices linked to trade. However, such justice cannot just be found but must be built. Institutions must be created or reformed to guarantee progress towards fairness and equality and to protect human freedoms and fundamental rights. Core labour standards are essential to all democratic societies. However, developing countries view proposals to include core labour standards in multilateral trade agreements as part of a trade protectionist agenda of developed countries. The WTO has distanced itself from the protection of core labour standards taking the stance that it is the duty of the International Labour Organisation to protect such standards. This article assesses the prospects of locating the legal basis for establishing a trade-labour linkage in the WTO legal framework on the widely accepted theory and conception of human rights. Embracing core labour standards as human rights, it emphasises the need to balance trade-related profit maximisation and the attainment of social justice as a development which could strengthen the WTO's legitimacy.
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Assessing the nature of competition law enforcement in South Africa, pp 136-163
Author/s: Prins, Deon and Koornhof, Pieter
There has been speculation in South African law in recent years regarding the nature and scope of the powers and duties conferred on the local competition authorities. This is due in part to divergent opinions in case law surrounding the nature and scope of the powers of the competition authorities, as well as the nature of the fines imposed by them (one of the most common remedies in competition law enforcement both locally and abroad). This article provides a historical analysis of the development of competition law enforcement in South Africa as well as a discussion of case law relating to competition law enforcement in order to determine what the nature thereof is. A comparative analysis is also conducted to establish the extent to which the local position deviates from foreign jurisprudence. In conclusion, the various arguments as to whether competition law enforcement should be seen as criminal or sui generis in nature are set out.
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Before the camel’s back is broken: How Malawi provides succour to employers by jettisoning the payment of a severance allowance and pension benefits at the same time, pp 164-177
Author/s: Mhango, Mtendeweka
This article discusses the problems surrounding the double payment of a severance allowance and private pension benefits in Malawi. It starts by discussing the case law developments following the enactment of the Employment Act 2000 and its subsequent amendments, which were repeatedly struck down by the courts. The article seeks to demonstrate the context which led to major pension and employment reforms in 2011 in the form of the Pension Act and Employment Amendment Act, which were concurrently enacted in 2011 to specifically resolve the above problem. It examines the effects of these legislative reforms on the relevant case law. The article argues that the legal position that prevailed since 2000, when the Employment Act was enacted, no longer exists following the enactment of the Pension Act and the Employment Amendment Act.
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The Amended Government Procurement Agreement: Challenges and opportunities for South Africa, pp 202-223
Author/s: Kollamparambil, Umakrishnan
The amended Plurilateral Agreement on Government Procurement, aimed at liberalising and increasing transparency in procurement markets, was signed by 42 countries in March 2012. South Africa has not been open to GPA because of the preferential procurement policy envisaged in its Constitution. This article discusses the characteristics of South African procurement markets and analyses the pros and cons of South Africa accessing the Agreement. The author argues that while increased contestability can lead to better value for money, this can be achieved without completely overriding the use of government procurement as a policy tool to promote local industry and poor sections of society. The article further discusses how the GPA clauses can be exploited to ensure that South African domestic industry is given the time and encouragement to become competitive internationally.
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After the Novartis judgment - ‘Evergreening’ will never be the same again!, pp 305-316
Author/s: Vawda, Yousuf A
This article traces the genesis of Indian patent law with regard to the protection of product patents for medicines, reviews the changes brought by the TRIPS Agreement and India's measures to become compliant with this international regime, reviews the legal and policy arguments raised in the Novartis case, and discusses the implications of this decision on other developing and least developed countries in terms of access, policy considerations and legislative choices when crafting appropriate laws.
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Devolution of power in Zimbabwe’s new constitutional order: Opportunities and potential constraints, pp 289-304
Author/s: Moyo, Philani and Ncube, Cornelias
Zimbabwe adopted a new constitution in May 2013 replacing the negotiated transitional Lancaster House constitution. This new constitution introduced devolution of power as a new governance model for Zimbabwe to replace deconcentration on the premise that devolution is a more democratic, citizen-centred, participatory, more transparent, accountable and locally relevant development focused governance system. This paper examines the opportunities and potential constraints associated with this transition from deconcentration to a three tier devolved system of governance. It does this through answering questions including the following: To what extent will this reconfiguration of the state from centralisation to devolution give citizens more power to elect representatives who understand and champion their local development needs? Will local needs, aspirations, and influence drive the development agenda? Which consequentialist and deontological benefits will be derived from devolution of power? Is devolution going to influence equitable and fair exploitation of local resources for the benefit of all communities including 'marginalised' provinces such as Matabeleland, Midlands and Manicaland? Does an anti-devolutionist ZANU-PF dominated government have the political will to fully implement devolution?
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The political question doctrine in Uganda: A reassessment in the wake of CEHURD, pp 264-288
Author/s: Dennison, Brian D
The political question doctrine obliges courts to set aside certain government actions and decisions from judicial review. The doctrine emerged in the United States in the early 19th Century. It first appeared in Ugandan jurisprudence in Ex parte Matovu (1966). After Matovu, the doctrine kept a relatively low profile in Uganda. However, the doctrine re-emerged dramatically in the case of Centre of Health Human Rights & Development (CEHURD) and Others v. Attorney General. In CEHURD, the Constitutional Court of Uganda held that the political question doctrine prevented the court from reviewing government policy concerning the provision of maternal health care. Critics of the CEHURD judgment question the legitimacy of the political question doctrine and contend that the doctrine should not apply to matters involving human rights. Criticisms continue as the matter sits on appeal before the Supreme Court of Uganda. Notwithstanding the protestations, the political question doctrine has its rightful use and place in Uganda. The doctrine springs from a necessary limitation on judicial power and the need to honour purposeful allocations of power among the other branches of government. Thus, the doctrine has a fundamental role to play in achieving separation of powers and allocating of government responsibilities. Despite its utility, the political question doctrine should not be used as an excuse for the judiciary to abscond from core responsibilities or to avoid controversy. This is especially true in nations where courts are historically susceptible to political pressure.
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