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: Malherbe, Kitty
Kitty Malherbe examines the legislative and policy developments that led to the enactment of the Older Persons Act 13 of 2006, designed to address the unacceptable levels of abuse and neglect suffered by older persons in residential care as well as in their communities and ensure that they receive the care and protection to which they are entitled. While the Act may have facilitated greater access to services for older persons, it is argued that the focus is still too much on residential services and not enough on older persons living in their communities. The state, however, has made it clear that its duty to provide care applies only to indigent and frail older persons who lack family care. Yet many older persons live with family who cannot cope with the burden of caring for them, and community organisations cannot lend the support required without state assistance. The Older Persons Act regulates community-based care and support services as well as residential facilities and broadens the scope of financial assistance to community organisations. The lack of enforcement mechanisms, however, detracts from the advances, and older persons seeking to enforce their equality rights in terms of the Act will have to seek their remedies beyond the Act.
Author/s: Millard, Daleen
Daleen Millard's comprehensive examination of relevant case law reveals abiding uncertainty in the determination of loss of earning capacity. Professor Millard demonstrates that the problems are the result of terminological infelicities, conceptual problems and evidentiary difficulties. She suggests that social protection measures such as income replacement, pensions or welfare benefits might be marshalled to alleviate the problem. The social protection mooted by Minister Trevor Manuel in his budget speech, she indicates, could be the impetus for a more integrated approach.
Author/s: Bamu, Pamhidzai; Schuckman, Joachim; and Godfrey, Shane
Pamhidzai Bamu, Joachim Schuckman and Shane Godfrey deal with the question whether the new National Credit Act will increase access to credit for small and micro enterprises (SMMEs). Government sees the promotion of SMMEs as a way of mobilising the so-called 'second economy', comprising mostly actors from the 'previously disadvantaged sector', to move closer to the 'first economy'. Access to finance is seen as one of the most important factors that hamper SMMEs' potential to succeed. The previous regulatory framework for the microfinance sector had been provided by the Usury Act of 1968. In the view of the authors, this framework had failed to provide a platform for the development of SMMEs. During the 1990s it became increasingly evident that a new regulatory framework was needed, and in 2005 the National Credit Act was passed. While acknowledging the importance of the Act, the authors suggest that the barriers to lending to unbanked SMMEs cannot be fully addressed by credit policy alone. To ensure that developmental credit gets the attention that it needs, they argue, will require a more holistic and more interventionist approach on the part of government.
Author/s: Hlongwane, Nomagugu
Nomagugu Hlongwane examines the problem of pay discrimination among employees doing similar work. Analysing the principle of 'equal pay for work of equal value', she notes that the Constitution prohibits pay discrimination only on the grounds set out in section 9(3) of the Constitution. The Employment Equity Act (EEA), in giving effect to the constitutional prohibition, is the direct vehicle for achieving pay equity in the workplace. South Africa is moreover a signatory to ILO Conventions advancing equal pay and the EEA must be interpreted in compliance with these Conventions. But, though 'equal pay for work of equal value' is explicitly recognised in the relevant Code of Good Practice and in the Public Service Act Regulations, the EEA (like the Constitution) only promotes it indirectly by way of its general prohibition of unfair discrimination. The author argues that the legislature should enact provisions directly regulating unequal remuneration for work of equal value in the EEA, including provisions for identifying 'work of equal value'.
Author/s: Mubangizi, John C
Professor Mubangizi argues that international human rights norms and values not only socio-economic but also civil and political should be infused into poverty reduction policies and institutions, which should include a restructuring of the global economic order. In his view this would play an important role in halting the vicious cycle of poverty produced, inter alia, by the structural imbalances inherent in globalisation; poor governance; conflict, political strife and social disharmony; ignorance and lack of and inappropriate education; and disease, especially HIV/AIDS. In his view this would play an important role in halting the vicious cycle of poverty produced, inter alia, by the structural imbalances inherent in globalisation; poor governance; conflict, political strife and social disharmony; ignorance and lack of and inappropriate education; and disease, especially HIV/AIDS.
Author/s: Manuel, Trevor
In celebration of Human Rights Day, Minister of Finance Trevor Manuel delivered the 4th Dullah Omar Memorial Lecture on 20 March 2007. The lecture examines the notions of 'continuity' and 'change' in the human rights context in South Africa's recent history. Dealing with specific challenges against the backdrop of our Constitution, he criticises problems such as corruption and concludes that more must be done to address them. Minister Manuel also discusses the importance of a culture of human rights as well as the challenges faced by South Africa in its struggle to build such a culture, and advances recommendations on how to achieve these objectives.
Author/s: De Villiers, Wium
In this case study Wium de Villiers discusses the Constitutional Court's endorsement of the SCA decision in SABC Ltd v National DPP and Others, to the effect that it would only allow Shabir Shaik's application for leave to appeal to be broadcast if it was satisfied that it would not inhibit justice. Professor de Villiers argues that section 12 of the Constitution should be recognised as a generic residual due process right, analogous to that of section 7 of the Canadian Charter of Rights and Freedoms, which would lead to a substantial reduction in the inconsistencies in the Constitutional Court's jurisprudence revealed by that decision.
Author/s: The Editors
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