This article will focus on the importance of committed and participating civil communities in the realisation of health rights on the African continent. The various social, material, organisational, religious and cultural conceptions unique to the Malawian and Ugandan communities will be touched upon to show that community-specific responses to health rights are shaped by and are being informed by the social and cultural milieu of these African societies. From the examples put forward in this article it will become clear that the realisation of health rights on the African continent will remain a mere pipe dream if the social and cultural milieu of health needs and rights in Malawi and Uganda are ignored. First, the constitutional and legislative frameworks for health rights in Uganda and Malawi will be outlined whereafter the most pertinent social, religious and cultural conceptions that currently impact on the realisation of the right to health in these two countries will be discussed. The importance of recognising and addressing these social determinants of health on the African continent will be emphasised and a more contextualised approach to the realisation of health rights will be advocated for.
Pension regulation in Malawi has been uncertain and inadequate until recently when parliament introduced the Pension Bill 14 of 2010. This Bill heralds important changes in the pension law landscape, such as expanding the categories of beneficiaries of death benefits. The Bill is progressive in its attempts to regulate the pension funds industry comprehensively and should be welcomed. Reflections on South African and Australian law are needed in order to learn from the mistakes and best practices of these countries, in order to ensure the efficacy of Malawi's pension system.
In terms of the South African general anti-avoidance rule, a transaction that misuses or abuses the provisions of the Income Tax Act may be disregarded for tax purposes. The misuse or abuse provision, along with the general anti-avoidance rule (GAAR), has not yet been judicially considered. It is argued that the provision brings further uncertainty and breadth to the general anti-avoidance rule. It calls for a purposive interpretation of tax legislation. This approach, however, creates uncertainty regarding the determination of purpose. In Canada, from which the provision was borrowed, the courts initially applied a policy approach in determining purpose but this disadvantaged the revenue authorities in a series of cases. The Minister of National Revenue was required to present a clear and unambiguous policy which in reality could not be found. The thrust of this article is to show that the misuse or abuse concept could turn out to be a lateral development in the South African GAAR because of the uncertainty it carries and if lessons on its application are not learned from the Canadian experience.
This article attempts to contribute to the on-going debate on African integration from a legal perspective. Africa's path towards consolidating unity and development, as elsewhere, is replete with fundamental obstacles. This article suggests a way forward through a number of legal initiatives designed to redress the failures usually encountered in the process of African integration. Such legal imperatives include commitment to constitutionalism in member states, a framework for ensuring compliance with transnational directives, enhanced synergy between national and regional institutions and increased interaction amongst legal stakeholders across the continent.
Accession is an original method of acquisition of ownership. For purposes of this article it refers to the situation where movable things which are attached to land permanently become part of the land and therefore the property of the owner of the land. This method of acquisition of ownership is called 'building' or 'inaedificatio' in South African law. The Dutch Civil Code provides that buildings or other improvements that have been united with land in a durable manner become immovable things through 'vertical accession'. In this article, the criteria to determine whether a movable thing becomes permanently attached to land that are applied in South African law are referred to and are compared to those applicable in Dutch law. An interesting aspect in this field of study, which will specifically be addressed in this article, is the question whether objective or subjective criteria should be considered when determining whether a movable thing became an immovable thing through accession or not.
Integration in the Southern African Development Community (SADC) is deepening to the extent that the organisation is being tasked with greater responsibilities. However, deeper integration is unlikely to occur within a framework of uniformity; hence, the process of deepening integration may demand flexibility. Flexibility is necessary because SADC member states are likely to differ in their views about the way forward, and how much of their national sovereignty they are willing to trade for the benefits of SADC membership. One example of a critical difference, as SADC prepares for the customs union, is the use of import tariffs. South Africa and Mauritius are increasingly using this as an instrument of industrial policy. On the other hand, poor countries such as Lesotho and Swaziland, are using it as a source of revenue. It is about time that SADC member states realise and accept that these differences will persist rather than wither away. Flexibility does not have to be read as a brake on integration. On the contrary, flexibility offers the most useful means of balancing different national interests, thereby allowing progress to be made in SADC as a whole. This paper seeks to draw lessons for flexible integration from the European Union (EU). Such an undertaking is considered relevant as SADC has made a laudable effort to follow the EU model of regional integration. Part 1 of this paper attempts to define flexible integration within the context of SADC regional integration and the experiences of the EU, while part 2 deals with the rationale for employing flexible integration in SADC. Part 3 discusses the challenges of flexibility and, finally, part 4 outlines ways in which SADC can make flexibility work.
For a long time, children born of unmarried parents have not been accorded the same rights and benefits as children born of married parents. Today, the international community has unanimously condemned the discrimination against children born of unmarried parents (previously referred to as 'illegitimate children') through the adoption of the Convention on the Rights of the Child. To that end, Lesotho has joined those who addressed discrimination against children born to unmarried parents. However, the case of Lesala v Morojele decided by the High Court of Lesotho leaves much to be desired and has prompted this paper. In this case, the judge, relying on very old South African jurisprudence, ruled that an unmarried father has no rights to his child born out of wedlock. He ruled that it is not in the best interests of the child to keep contact with his father who is not living with the child's mother. This note seeks to analyse this decision critically by exploring the unmarried father's right of access to his child born out of wedlock, and the court's subsequent failure to grant an order of maintenance.