The state of political inclusion of ethnic communities under Kenya’s devolved system, pp 131-153
Author/s: Nyabira, Ben Christopher and Ayele, Zemelak
Inter-ethnic relations in Kenya have been characterised by deep animosity and suspicion. This is mainly due to the political and economic exclusion of various ethnic communities of the country both before and after Kenya became an independent country. The political exclusion was exacerbated as the country increasingly became centralised, leading to periodic violent ethnic conflict. The 2010 Constitution of Kenya seeks to end this political system and practice and ensure the political inclusion of previously excluded communities through various institutional mechanisms, including a system of devolution. The Constitution provides for the creation of 47 counties on a wall-to-wall basis and the devolution of political and financial power to these sub-national political units. Moreover, as per the Constitution, general elections were held in 2013 through which those running the political organs of the counties were elected. This article seeks to examine the potential of the newly introduced devolved system to ensure the political inclusion of previously excluded communities. Based on the 2013 elections, the article also investigates the trend in this respect.
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Dismissal of an employee at the instance of a client: Revisiting Nape v INTCS Corporate Solutions (Pty) Ltd in the context of the Labour Relations Amendment Act 6 of 2014, pp 106-130
Author/s: Nkhumise, Ramokgadi Walter
This article interrogates the challenges related to employees whose services have been procured through temporary employment services. More recently there have been some serious efforts by the legislature to regulate labour broking in an attempt to protect employees whose services are procured through temporary employment services. The purpose of this article is to critically analyse the judgment of the Labour Court in Nape v INTCS Corporate Solutions (Pty) Ltd (2010) 31 ILJ 2120 (LC) and to consider its implications for the regulation of labour under section 198 of the Labour Relations Act 66 of 1995 (the 'LRA'). The main question in this case related to the dismissal of an employee at the instance of the client. It is against this background that this contribution argues for the need to recognise the right of recourse of the labour broker against the client. The first part of the article analyses the judgment in Nape case which provides an overview for interpretation of section 198 of the LRA. The second part analyses the principles developed in the Nape case and argues for the need to recognise the right of recourse of the labour broker against its client. The third part of the article briefly examines and analyses the effect of the legislative amendment introduced by the Labour Relations Amendment Act 6 of 2014 which seeks to regulate the protection of the rights of low-earning employees by ensuring that they have been employed in terms of genuine labour broking contracts, thus maintaining a fair balance between commercial sustainability of business whilst still recognising protection of the rights and interests of employees.
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Exploring the citizen inclusiveness and micro-economic empowerment aspects of regional integration in Africa, pp 91-105
Author/s: Lehloenya, Palallo Michael and Mpya, Maropeng Norman
A significant number of regional blocs have emerged on the African continent which often cite the liberation of their Members' citizens from poverty and hardship as one of their main goals. In reality, however, there have been numerous instances where the actions of these groupings and their Members have raised questions about their commitment to the economic emancipation of their citizens, either because they have not followed up on their undertakings or acted contrary to them. There have also been many occasions when the strategies and methods employed by the regional blocs and their Members have cast doubt on the prospects of their professed goals being achieved. This is so because, even where the measures undertaken yield some benefits, the benefits often accrue to big corporations and a small ruling elite, while the vast majority of the population remain excluded and left to fend for themselves. This article draws attention to the persisting neglect of a people centred approach in Africa's regional integration efforts, focusing on the current poor public participation in the debates and implementation drive, as well as the weak support for Small, Medium and Micro Enterprises (SMMEs). The article argues that there is a need for a fundamental shift in the continent's strategy if regional integration is to yield the desired results, with citizens becoming the primary focus of the initiative.
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Confronting selected difficulties associated with the enforcement of res judicata in South Africa with reference to Samancor v Rham Equipment (532/13) [2014] ZASCA 66, pp 215-225
Author/s: Chitimira, Howard
Estoppel prohibits a person (asserter) from asserting something contrary to what is implied by the previous action, conduct or statement of that person or by a previous pertinent judicial determination regarding such action, conduct or statement. There are various types and/or principles of estoppel that govern the application and enforcement of estoppel in many jurisdictions. Nevertheless, a detailed discussion of such types and/or principles is beyond the scope of this article which primarily discusses certain difficulties and/or flaws that are found in the enforcement of res judicata in South Africa as exposed in Samancor v Rham Equipment (532/13) [2014] ZASCA 66. In view of this, it should be noted that the article explores the judgment in this case in order to expose certain difficulties and inconsistencies that still confront the courts in relation to the application and enforcement of res judicata and issue estoppel in South Africa.
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Revisiting the participation of traditional leaders in municipal councils in South Africa, pp 200-214
Author/s: Mathenjwa, Mbuzeni and Makama, Porsche
The role of traditional leaders in governance dates back to long before the colonial conquest of South Africa, when the chief as head of indigenous African government employed traditional councillors as a means of reaching people through the traditional councils. After the onset of colonial conquest, African leaders were subordinate to the settler governments and the settler governments were the primary source of their powers. In the new democratic constitutional dispensation the institution of traditional leadership is recognised in the South African Constitution. However, the Constitution makes provision for national legislation to provide for a role for traditional leadership at the local level on matters affecting local communities. The Local Government: Municipal Structures Act of 1998 makes provision for the participation of traditional leaders in municipal councils without the right to vote. However, the participation and role of traditional leaders in municipal councils are subject to the discretion of the MEC for Local Government who identifies and prescribes a role for traditional leaders who should participate in municipal councils. In the fashion of the colonial era of old, when the settler government was the source of the powers of traditional leaders, the role of traditional leaders in local government is decided by the MEC in the new constitutional dispensation. This article explores the structural and legislative possibilities of decolonising municipal councils by allowing full participation of traditional leaders in municipal councils.
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An overview of South Africa’s institutional framework in promoting women’s right to development, pp 40-68
Author/s: Stevens, Clydenia and Ntlama, Nomthandazo
The article provides a brief overview of the Chap 9 institutions with particular reference to the South African Human Rights Commission and the Commission for Gender Equality as established in terms of South Africa's 1996 Constitution in the quest to promote women's right to development. The focus on these institutions is motivated by the broader mandate that is bestowed on the SAHRC for the promotion of human rights and the CGE's specific one for gender equality. The objective is to harness the inter-relationship of the right to development with other fundamental human rights entrenched in the Constitution which are essential for the advancement of women's rights. These institutions are designed to strengthen the constitutional democracy which is essential for the promotion of women's right to development. Hence this article argues that the two institutions should sharpen their constitutionally protected responsibility by localising the level of awareness of the right to development as a human rights issue that will ensure the advancement of other protected rights in the Bill of Rights. The emphasis on women is also motivated by their vulnerable status, as opposed to that of men, because they are subject to many socio-political, cultural and legal ills that compromise their worth to development. The existence of an institutional and legislative framework that is designed to transform the country based on its foundational principles of non-sexism and non-racialism, has not as yet transmitted to the implementation of women's right to development in a more meaningful way which would ensure the full realisation of their development. Various studies have been conducted to highlight the plight of women and this article is not meant to reproduce the information that is already in the public domain except to indicate how the two institutions can forge tools towards the realisation of women's right to development. Against this background, this article starts by providing the conceptual framework of the right to development in international human rights law. The section identifies the robust debates around the concept of the 'right to development' and then justifies the importance of the right to development in the general framework of the rights. The second part focuses on the constitutional strength of the two institutions and provides recommendations on how they can fulfil their mandates in a way that befits the general populace of the Republic.
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Does the South African Pension Funds Adjudicator perform an administrative or a judicial function?, pp 20-45
Author/s: Mhango, Mtendeweka
This article examines the powers, role and functions of the Pension Funds Adjudicator with a view to determine whether the Adjudicator's functions are administrative or judicial in nature. In recent years, South African courts have disagreed on this question and have offered different interpretations of the nature of the functions performed by the Adjudicator. On the one hand, some courts have consistently held the view that the Adjudicator performs judicial functions, and on the other hand, one court has said that the Adjudicator's functions are administrative in nature and that the provisions of the Promotion of Administrative Justice Act 3 of 2000 apply. The article argues that the preferred interpretation of the law is that the Adjudicator performs a judicial function.
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The application of the doctrine of res judicata in political rights cases: National Freedom Party v Electoral Commission and Others (2016), pp 192-199
Author/s: Dube, Angelo and Machaya, Musavengana
The South African Constitution provides for the right of every citizen to free and fair regular elections. This right is often enjoyed through the instrumentality of political parties, which are the vehicles through which most candidates come to hold office. This constitutional right is further given effect to by various pieces of legislation, including the Electoral Commission Act 51 of 1996 and the Local Government: Municipal Electoral Act 27 of 2000. These Acts prescribe certain prerequisites for political parties to meet prior to being allowed to participate in elections. One such requirement is the payment of an electoral deposit to the Electoral Commission. In 2016, the National Freedom Party failed to make such payment, leading to its name not being included in the list of political parties eligible for the elections. The Party in its initial application unsuccessfully approached the Electoral Court for a remedy. A few days later, the Party lodged a second application on the same set of facts, thereby prompting the Court to invoke the principle of res judicata. This case note analyses the decision of the Court in the light of the principle of res judicata and the powers of the Electoral Court and the Electoral Commission.
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Formation of a government in Lesotho in the case of a hung parliament, pp 174-191
Author/s: Nyane, Hoolo
The reform of the electoral system in Lesotho from the constituency based to a mixed one has affected not only the structure of constitutional democracy but also the dynamics of parliamentary politics. Prior to the reforms, political contestation - which was largely majoritarian ' was aimed at an outright majority in Parliament in order to form a government. The introduction of a mixed electoral system after the 1998 political discontent ushered in a paradigm of alliance politics in the country. While the trend began to be apparent in the run-up to the 2007 parliamentary election, it became completely clear with the outcome of the 2012 parliamentary election which produced no outright majority for a single political party. While these electoral reforms brought about a shift from Westminster electoral conventions, the Constitution largely remains stuck with the British based constitutional conventions on the formation of a government. The contention of this article is that where an election has not produced an outright majority for a single party in parliament, Westminster conventions remain a guide for the formation of a government in Lesotho. The article extrapolates these conventions to bring some meaning to clauses of the Constitution of Lesotho and make recommendations for reform.
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Integrating the traditional with the contemporary in dispute resolution in Africa, pp 154-173
Author/s: Aiyedun, Adenike and Ordor, Ada
Traditional justice systems remain and thrive in various forms on the African continent, serving large populations located mainly in rural communities. Customary law is not static and, consequently, changes in traditional perceptions of substantive and procedural justice have over time informed the articulation of concepts, such as, the restatement of customary law and the ascertainment of living customary law. Having restated or ascertained customary law, there remains the task of integrating traditional and contemporary dispute resolution methods on the continent, to promote better access to justice for litigants. This article revisits earlier studies on traditional justice processes in Africa, following a trajectory that starts off with an overview of the colonial influence on the development of legal systems in Africa, which resulted in dual, and sometimes multiple, normative orders existing side by side. It moves on to show how the plural legal landscape is configured, using examples from a number of communities in Africa. The discourse highlights key features of this dualism, including the superior position accorded to the received legal system as well as the difficulty and expense of accessing the formal justice system. Similarities and differences between proceedings in traditional justice systems and formal courts are identified as a starting point for any process of integration.
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Geography, marginalisation and the performance of the right to have access to health care services in Johannesburg, pp 1-19
Author/s: Pieterse, Marius
Rights are not exercised in the abstract or in a vacuum, but are rather performed in a variety of physical contexts and settings, and through a variety of physical actions and interactions. It is therefore essential that laws and policies aimed at realising rights pay attention to their geographical and 'performative' dimensions. To illustrate this in relation to socio-economic rights, this article considers the performance and actualisation of the right to have access to health care services by different inhabitants of Johannesburg. It shows how a 'performative' understanding of the right to have access to health care services dovetails with the international law approach to assessing compliance with the right to health, and points to certain features of South African socio-economic rights jurisprudence that enable such an understanding of the right. Thereafter, it considers some of the geographic aspects of access to health care services in Johannesburg, with a particular focus on the experiences of marginalised groups. Current health system reforms and urban development initiatives in Johannesburg, that relate to the geographical features of access to health care in the city, are then assessed. It is shown that, while many of these measures will have very positive consequences for the progressive realisation of the right to have access to health care services, the interaction of geographic factors with other determinants of access may nevertheless continue to frustrate access to care by certain marginalised groups. To show that this is not inevitable, two examples of target-group specific, place-aware interventions pertaining to access to sexual health services by marginalised groups in the city are discussed. Some cautionary notes for law and policy reform, particularly in relation to the rolling out of National Health Insurance, are offered in conclusion.
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The role of traditional leaders in Zimbabwe: Are they still relevant?, pp 69-90
Author/s: Chigwata,Tinashe
In Zimbabwe, 67 per cent of the population resides in rural (communal) areas where the institution of traditional leadership, rather than modern state structures, is the immediate form of government. The institution of traditional leadership plays a crucial role in the governance of these rural communities. Its role, however, remains controversial ever since the colonial government tampered with its structure and system. Successive governments in both the colonial and independent eras have (re-)defined the place and role of the institution in the political system, mostly to protect their respective narrow political interests at the expense of those of the broader generality of society, particularly those of rural communities. Surprisingly, the legitimacy of and support for the institution of traditional leadership, especially in rural areas, remains largely unshaken despite more than a century-long period of frequent (re-)definition and modification of its role and place. The 2013 Constitution of Zimbabwe has elevated the place and role of the institution of traditional leadership. It acknowledges the important role of the institution in the Zimbabwean polity and seeks to maximise its remarkable resilience to promote the realisation of development and peace, among other goals. This article examines the place and role of the institution of traditional leadership with the objective of establishing its relevance to and compatibility with modern state and governance structures and procedures in realising various constitutional objectives.
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