The implications of Truworths Limited v Minister of Trade and Industry 2018 (3) SA 558 (WCC) for access to credit by historically disadvantaged and low-income consumers, pp 1-17
Author/s: Wazvaremhaka, Tinashe and Osode, Patrick C
The problem of safe and affordable credit for low-income consumers has remained a conundrum for policy makers. More pointedly, sustainable participation of historically disadvantaged and low-income consumers in the mainstream credit market has proved to be problematic in South Africa. Despite the introduction of the National Credit Act 34 of 2005 ('NCA') numerous South Africans are still trapped in debt. To alleviate this problem the NCA was amended by the National Credit Amendment Act 19 of 2014 ('NCAA') to promote responsible lending and borrowing. Nonetheless, certain regulations that were promulgated under the NCAA were challenged in Truworths v Minister of Trade and Industry 2018 (3) 558 (WCC) ('Truworths') on the basis that they discriminated against the informally employed and financially excluded since they require consumers to provide bank statements, pay slips or financial statements as proof of income. This article presents a reflective appraisal of Truworths in the light of its support for access to credit by those on the peripheries of South Africa's credit market. Although the authors applaud the decision in Truworths as having the potential to open up the credit market to the financially excluded, they also raise concerns about whether striking down regulations that encourage consumers to open bank accounts is the optimal approach to promoting financial inclusion in South Africa.
Read more
Bicameralism in Lesotho: A review of the powers and composition of the second chamber, pp 18-43
Author/s: 'Nyane, Hoolo
Lesotho has a bicameral parliamentary system based on the British model. While the National Assembly is clearly a representative House elected by the citizenry, the purpose, structure and legislative powers of the Senate as the Second Chamber have been a matter of considerable controversy throughout the history of parliamentary democracy in the country. The National Assembly generally has the upper hand not only in the legislative process but also in the broader parliamentary system it chooses the Prime Minister, it places its confidence in the government and it can withdraw such confidence. The fact that the model generally gives the National Assembly the upper hand is a matter of common cause. What is in question, though, is the nature and extent of the limitation of the powers of the Senate in terms of the Constitution. This article investigates this question and contends that the composition of, and restrictions on, the Senate need to be reviewed in order to enable the Chamber to play a meaningful role in Lesotho's parliamentary democracy.
Read more
Supervision of local government in Zimbabwe: The travails of mayors, pp 44-67
Author/s: Chigwata, Tinashe Carlton; Marumahoko, Sylvester; and Madhekeni, Alois
The discourse on decentralisation theoretically supports central government supervision of local government. The exercise of such powers by the central government of Zimbabwe is mired in controversy. Mayors are often suspended and/or dismissed to safeguard so-called 'public interests'. In particular, those who are from the opposition political party, the Movement for Democratic Change, have been greatly affected in this regard. The supervisory interventions of the Zimbabwe African National Unity-Patriotic Front led national (central) government have raised questions about the very existence of local democracy and the parameters within which supervision should be implemented. The inadequacy of the laws regulating central supervision over local government and, in some cases, the blatant disregard of such laws by the supervising authority have left mayors vulnerable to arbitrary suspensions and/or dismissal. Such interventions have been motivated mainly by sinister political objectives rather than a genuine desire to improve local governance. A case study methodology focusing on the supervision of mayors in Zimbabwe since independence has been adopted.
Read more
The global financial regulatory system and the rule of law: An appraisal of the regulatory process under Basel III, pp 148-180
Author/s: Mengie, Legesse and Arcuri, Alessandra
The efficacy of the existing international financial regulation and adoption of an institutionalised form of regulation are among the global financial governance issues which have been well addressed by scholars in the field. The less-investigated but directly related and worth considering issue is the impact of the contemporary global financial governance system on fundamental values like the rule of law. This article examines this less explored yet worth investigating issue with a focus on Basel III, namely, how far does the regulatory process under Basel III, as it stands today, inhibit or foster the rule of law. Soft law, informal groups of this regulatory network and the regulatory process are analysed in the light of the relevant elements of the rule of law. The article shows that the accountability deficit and lack of inclusive governance in the Basel III regulatory system have inhibited the advancement of the rule of law which should have been fostered to build legitimacy in this regulatory system.
Read more
The South African Constitution's empty promise of radical transformation: Unequal access to quality education for black and/or poor learners in the public basic education system, pp 100-147
Author/s: Arendse, Lorette
The South African Constitution mandates the radical transformation of the public basic education system. To that end, the Constitution, read with the South African Schools Act, entrenches a right of equal access to quality basic education for all. The substantive approach to equality, rooted in the transformative ideology of the Constitution, necessitates an acknowledgment and overcoming of the past patterns of disadvantage, based primarily on the grounds of race and socio-economic class. Locating her analysis in 'quality education' in the United Nations Report, 'Normative action for quality education', the author finds that the definition of 'quality education' involves a holistic approach which encompasses learners' level of academic achievement, the provision of an adequate school infrastructure, a well-qualified teaching profession, and schools that embrace a substantive form of democracy. In examining each of these indicators, the emergence of a pattern is clear: for black and/or poor South African learners in the public school domain, disadvantage manifests in an unequal access to quality education.
Read more
Has South Africa committed in good faith to article 34 of the UN Refugee Convention, which calls for the naturalisation of refugees?, pp 68-99
Author/s: Khan, Fatima
It is widely accepted that to be naturalised one must acquire the nationality of a political or national community, and that such a status is accompanied by various rights. It is also widely accepted that nationality can be acquired in various ways. Article 34 of the 1951 United Nations Convention Relating to the Status of Refugees provides that States must facilitate the naturalisation and assimilation of refugees and expedite these proceedings as far as possible. As South Africa has not filed any reservations to the UN Refugee Convention, it is bound to respect article 34 of this treaty and thus not block the pathway to naturalisation. Failure to do so means that South Africa is violating its obligations under international law. There is a legal pathway to ending refugee status in South Africa; however, it is bound by a complicated process regulated by three different pieces of legislation, namely, the Refugees Act, the Immigration Act, and the Citizenship Act. It therefore appears that South Africa has not enacted this provision in good faith. This article provides an analysis of South Africa's domestication of article 34 of the UN Refugee Convention. Moreover, it concludes that the current system is complicated and hinders refugees from accessing naturalisation, and therefore is not in the spirit of the UN Refugee Convention.
Read more
A fourth transformation of democracy? Liquid democracy, supra-national democracy and the fate of participation, pp 181-201
Author/s: Dingeldey, Philip
Liquid democracy is defined as a cyber democracy that combines representative democracy and spontaneous direct democracy by using technologies of the web 2.0. In recent years, some political theorists and actors have been optimistic that liquid democracy could make a more participatory and direct democracy possible to fulfil the democratic promise of freedom and equality of the people. One could even ask if a supra-national system could become a democratic option by using digital technologies for discussions and deciding. After the historical transformations of democracy, from the Greek city state via the nation-state to a global or supra-national unit, and the second and third ones came or come with a loss of participation, there could be, according to net-optimists, a fourth and more participatory transformation of democracy. This article doubts the emancipatory and participatory potential of liquid democracy (especially for a supra-national system), and I choose the classical theoretical perspective of democracy's ancient core elements of free and equal participation. By analysing the arguments of net-optimists the problems for participation in a political sphere are shown. The point the paper wants to make is that under the circumstances of a (digital) oligopoly-capitalism, fragmentation, and digital divide, or in short, the omnipresent influence of big social inequalities, a cyber-democracy is an unlikely ideal.
Read more
Does the exclusion of a right to basic sanitation in international law impede its legal enforcement?, pp 245-269
Author/s: Heleba, Siyambonga
Despite expressly providing for a number of rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR) sadly omits the right to basic sanitation. This is a matter of concern as figures released by United Nations agencies and other international organisations paint a bleak picture of the levels of provision (or lack thereof) of basic sanitation around the world. They demonstrate huge and growing disparities in relation to the provision of basic sanitation facilities between urban and rural populations. International law has certainly not helped the situation by omitting this important right in key human rights instruments such as the ICESCR. This is also manifested in the tendency by many governments to separate basic sanitation from the right to water. The article argues, however, that this fact alone should not hinder the legal enforcement of this right.
Read more
Ex parte Somers (1927) 48 NPD 1: A story of racial exclusion in the South African legal profession, pp 219-244
Author/s: Lutchman, Salona
The article critically examines the judgment in ex parte Somers (1927) 48 NPD 1 from both a legal and personal perspective. The judgment details the case of an Indian South African who requested the Court to grant his admission as a candidate attorney. The Court refused his application on the basis that he could not complete the set of courses required by the Supreme Court Rules, as his admission to Natal University College had been denied. Without detailing the reasons for the College's refusal, the Court reinforced the College's racial discriminatory policies. The article examines the judgment from two perspectives: courtrooms as a space of protest; and racial exclusion at law schools and the legal profession.
Read more
Four years following South Africa's declaration upon the ratification of the ICESCR and jurisprudence on the right to basic education: A step in the right direction?, pp 270-298
Author/s: Nanima, Robert Doya and Durojaye, Ebenezer
Education empowers individuals to develop the skills needed for economic success in order to contribute to nation-building and reconciliation. Following South Africa's ratification of the International Covenant on Economic, Social and Cultural Rights, there were mixed reactions on account of the much-anticipated ratification, on the one hand, and the declaration that subjected the right to basic education to the National Education Policy Framework and the available resources, on the other. This article interrogates the efficacy of this declaration in the realisation of the right to basic education in South Africa. It utilises a three-step approach. First, it contextualises the right to education and evaluates the declaration. Secondly, it evaluates selected decisions of the South African courts to establish the trend on the right to basic education. The third step juxtaposes the executive's and the courts' approaches from the ratification to date. A conclusion and recommendations inform the way forward.
Read more
Democracy and (the essential content of) fundamental rights: Marching in line or precarious balancing act?, pp 299-330
Author/s: Schaks, Nils
This article addresses the question of how democracy and fundamental rights interplay, and compares German and South African law for this purpose. The author argues that democracy requires and presupposes fundamental rights, but that these two values do not always align, and then deals with the question of how to reconcile democracy and fundamental rights in case of conflict. The potential conflict between the two values is sometimes reflected in the relationship between Parliaments as the embodiment of democracy and the Constitutional Courts as the embodiments of fundamental rights (the so-called 'counter-majoritarian dilemma'). However, the author rejects the recent critique by some scholars that the German Federal Constitutional Court structurally exceeds its powers vis-a-vis the German Parliament and that there is a permanent judicial overreach. On the contrary, the author argues that Constitutional Courts do not have sufficient tools to counter a democratic backsliding, i.e. the incremental erosion of democracy. Since the author considers democratic backsliding to be a greater and more acute threat to democracy than judicial overreach, he presents the view that the guarantee of the essential content of a right delineates the minimum of a fundamental right in a democratic society. This view is explained using freedom of expression as example.
Read more
Hold on to critical jurisprudence, pp 202-218
Author/s: Van Marle, Karin
The main aim of this article is to reflect tentatively on the importance of a continuing critical jurisprudence. By thinking about the lives and legacies of the late Nelson Rolihlahla Mandela and his second wife, Winnie Madikizela Mandela, the author seeks to reconsider a specific kind of critical jurisprudence, with particular attention to the issue of constitutionalism. She argues for a critical jurisprudence that responds to the many complexities that South African society faces, with nuance - not broad strokes and generalisations but with care, neither aggressive nor defensive; and with thought, not strategic or calculated. This third position also has an important, albeit minor, place in legal scholarship and legal education, and most pertinently in the LLB curriculum.
Read more
Protecting the deity called neoliberalism from shame: Uganda’s 2020 Covid-19 lockdown and violations of the right to health, pp 54-85
Author/s: George, Kizito Michael
The Covid-19 pandemic struck Uganda like a storm. On 18 March 2020, President Museveni ordered the closure of schools and suspended religious gatherings, public rallies and cultural meetings with effect from 20 March. This was aimed at safeguarding the right to health in general, and the right to life in particular, of all Ugandans. By 30 June 2020, Uganda had not registered a single Covid-19 death and had had less than 1 000 infections. The Covid-19 pandemic, however, created great panic among the leadership of Uganda's neoliberal regime. For three decades, the Ugandan state has deliberately underfunded the health sector, using the neoliberal logic that the market will address the challenges of the health sector. The state has treated economic and social rights as mere aspirations and not as genuine human entitlements. Museveni's regime has rejected pleas from civil society organisations to allocate 15 per cent of the budget to the health sector, as per the Abuja Declaration. The New Public Management philosophy of neoliberalism advocates for public hospitals and health facilities to be run like private-sector enterprises that employ fewer personnel in order to cut the costs of salaries and wage expenses. This article argues that the Ugandan state violated the right to health of Ugandans during the 2020 Covid-19 lockdown. It contends that the ruthless enforcement of the lockdown in Uganda in the wake of the coronavirus pandemic aimed to protect the neoliberal state from embarrassment occasioned by the prioritisation of markets over people's social and economic rights.
Read more