Law, Democracy
& Development
Law, Democracy
& Development
JOURNAL OF THE FACULTY OF LAW | UNIVERSITY OF THE WESTERN CAPE | ISSN: 2077-4907JOURNAL OF THE FACULTY OF LAW, UWC | ISSN: 2077-4907
Author/s: The Editors
Author/s: De Visser, Jaap
Jaap de Visser examines the responsibilities of the three spheres of government with regard to implementing the right of access to housing and, in particular, the responsibility of local government. Local authorities are obliged, just as much as national and provincial government, to protect basic rights and advance their realisation. When it comes to implementing an economic, social or cultural right, however, local government is bound by its constitutional mandate. The Constitution, the author argues, does not place the primary obligation to implement the right to housing on local government. However, in Government of the Republic of South Africa v Grootboom the Constitutional Court held that that access to land cannot be separated from access to housing or access to basic services, such as water and sewage removal. Local government thus plays a key part in fulfilling those ancillary aspects of the right of access to housing.
Author/s: Mettler, Johann
Johann Mettler notes that the status of local government has changed radically: it has become an autonomous sphere of government with powers derived from the Constitution, no longer delegated by national or provincial government. The Constitution further provides for the monitoring, support, regulation and supervision of municipalities by provinces. Johann Mettler notes that the status of local government has changed radically: it has become an autonomous sphere of government with powers derived from the Constitution, no longer delegated by national or provincial government. The Constitution further provides for the monitoring, support, regulation and supervision of municipalities by provinces. The sum of these relationships may be clustered under the term 'intergovernmental relations', although the term captures much more. The articles discusses a number of challenges that have emerged in the relations between provincial government and municipalities within the same province and suggests an appropriate way to approach them.
Author/s: Steytler, Nico
Nico Steytler focuses on the of 47new district municipalities established in December 2000, which share legislative and administrative powers with local municipalities in their areas. As shared authority in local government in non-metropolitan areas is new to South Africa, it poses a number of problems. The article notes the change in vision from the Municipal Structures Act of 1998 to the Municipal Structures Amendment Act of 2000, which transformed the district municipality from a coordinator and provider of bulk services to a regular end-user service provider. This amendment not only threw the original, carefully constructed vision into disarray but also left it uncertain where responsibility lies for the provision of basic services. Apart from the dire consequences of removing income-generating services from local municipalities, it also creates a democratic distance between service providers and consumers. Provinces have a significant role to play in ensuring that this complex system works.
Author/s: Wandrag, Riekie
Before the passing of the Municipal Finance Management Bill of 2003, Riekie Wandrag explains, local government confronted a number of issues, including lack of a coherent legislative regulation of municipal borrowing powers, a policy shift from national government guarantees to local responsibility for debt and stagnation of the municipal debt market, combining to produce increasing financial difficulties for local government. She assesses whether the Bill will meet these challenges. Placing emphasis on preventing municipal financial crisis rather than curing it, the Bill makes it clear that this is primarily the responsibility of municipalities themselves. The Municipal Financial Recovery Service, it is noted, also attempts to regulate and balance (rather precariously at times) the rights and needs of municipalities and their creditors in times of financial crisis.
Author/s: Magaisa, Alex Tawanda
Alex Tawanda Magaisa argues that knowledge has always been contested territory but, as the centrality of knowledge or information systems increases in the global economy, so have the contests over its ownership. Exploring the struggles over indigenous knowledge systems, he focuses particularly on medical knowledge systems. The article notes that indigenous systems were subordinated by Western systems during the colonial encounter and, whereas intellectual property laws were created to protect the latter, the former were regarded as mere superstition and left vulnerable. Today, however, there is greater interest in indigenous knowledge systems, especially among pharmaceutical and bio-chemical companies seeking new medicines; yet indigenous peoples who hold the knowledge are not acknowledged or compensated for their contributions. The author argues for the reconstruction of the legal landscape and for the protection of all knowledge systems to eliminate the phenomenon of the 'dominant and the other' and consequent exploitation.
Author/s: Rugege, Sam
Sam Rugege discusses the role of traditional leadership in the context of the democratic dispensation in which elected local government has been established throughout South Africa. He traces the institution from its pre-colonial form to its distortion under colonialism and apartheid and notes the considerable powers and functions enjoyed by traditional leaders at the dawn of democracy. Looking at the constitutional provisions dealing with traditional leadership in comparison to the powers and functions accorded to elected local government, the author discusses the struggle of traditional leaders to retain the powers they had under apartheid and argues that the Traditional Leadership and Governance Framework Bill 2003, aimed at transforming the institution in accordance with the values of democracy and equality, goes a long way in accommodating traditional leaders and charting a potentially important role for them in the new democracy.
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Law, Democracy & Development (LDD) is an accredited journal - that is, approved by the Department of Education for the publication of subsidised research output. This means that the articles we publish are subject to stringent quality control. All articles, unless otherwise indicated, are peer-reviewed - that is, anonymously assessed by independent experts. In addition, we also publish reviews, commentaries or other contributions which the editors consider topical or important but which have not been subjected to the formal assessment process - for example, contributions by emerging researchers (such as those in our ALAD section), keynote speeches by leading commentators and the like. These non-refereed items are identified as Forum contributions.
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