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- Volume 1, Issue 1, 2014
Journal of Law, Society and Development - Volume 1, Issue 1, 2014
Volume 1, Issue 1, 2014
Author Z. Ntozintle JobodwanaSource: Journal of Law, Society and Development 1, pp 7 –33 (2014)More Less
The Southern Africa Development Community (SADC), the African Union (AU) and other African regional economic communities (RECs) have as their ultimate objective the political and economic integration of the African continent. The SADC is home to a number of countries, all of them striving to improve their investment climate to attract foreign investors by reducing the costs of doing business in the region. One way of achieving this is by setting targets for and speeding up political and economic integration, improving interconnectivity and thereby enlarging the market size and enhancing its attractiveness. The SADC region still suffers from high levels of energy poverty through low access levels in all countries except South Africa and Mauritius. Numerous studies have shown that greater regional trading and cooperation on power development within the SADC could substantially reduce investment and operational costs as well as carbon emissions. The need for a regional power trading pool and regional cooperation grew out of the power utilities' recognition of the vulnerability of individual countries if each continued to pursue a policy of self-sufficiency rather than out of a desire to minimise the social or financial costs of the region's power. The power sector in southern Africa is undergoing tremendous reforms, more especially since the establishment of the Southern African Power Pool (SAPP) in August 1995. The SADC, however, faces serious challenges that include diminishing surplus generation capacity and the need to ensure that SADC citizens have equitable access to electricity at affordable prices. To meet these challenges, treaties and protocols have been adopted but are failing to deliver at the implementation stage. This article reviews the SADC energy-electricity regulatory framework in the context of economic and political integration and recommends the establishment of an independent regional regulatory authority to oversee the implementation of integrated holistic energy and air pollution control and prevention, and a common climate change policy. Such a regulator would be a highly resourced regional institution that will liaise with international institutions. This independent regional authority will serve as a catalyst for regional economic integration. It will also have a mandate to introduce and coordinate the establishment of an SADC regional emissions trading scheme that will contribute to managing the mitigation of greenhouse gases (GHGs) and the implementation of global warming adaptation strategies in the region.
The broken legs of the African Union Commission Chair : a critique of the present and prospects for the futureAuthor Amos SaurombeSource: Journal of Law, Society and Development 1, pp 34 –47 (2014)More Less
Dr Nkosazana Dlamini-Zuma successfully lobbied for and secured the prime seat as the new AU Commission Chairperson. This paper argues that the office of the Chairperson of the AU Commission does not have the legal and political power to spearhead the proper functions of the Commission Secretariat, hence the 'broken legs' in the title. The new Chairperson is going into an organisation which is intergovernmental in nature, with the critical decision-making power still in the hands of individual member states. The question being asked in this paper is how the Chairperson can exercise her mandate under the current setup. There is a need to look critically at the AU's culture and how it functions, and at its grand political dreams that in most cases have not come true. The paper concludes by advocating major institutional reforms so that the office of the AU Commission Chairperson becomes credible and legitimate to empower her to sit down and work.
Search for and seizure of evidence in cyber environments : a law-enforcement dilemma in South African criminal procedureSource: Journal of Law, Society and Development 1, pp 48 –67 (2014)More Less
Investigating, deterring and imposing legal sanctions on cyber-criminals warrants an international legal framework for the investigation and prosecution of cybercrime. The real-world limits of local, state and national sovereignty and jurisdiction cannot be ignored by law-enforcement officials. It can be a strenuous task to obtain information from foreign countries, especially on an expedited basis - more specifically when the other country is in a different time zone, has a different legal system, does not have trained experts and uses different languages. In South Africa existing laws appear to be inadequate for policing the cyber realm. The effects and impact of information technology on the legal system have not yet received the attention they warrant. The challenges presented by the electronic realm cannot be solved merely by imposing existing criminal and criminal procedural laws which govern the physical world on cyberspace. The electronic realm does not necessarily demand new laws, but it does require that criminal actions be conceptualised differently and not from a purely traditional perspective. Sovereignty and the principle of noninterference in the domestic affairs of another state are fundamental principles grounding the relations between states; they constitute an important mechanism in the armoury of criminals. The harmonisation and enactment of adequate and appropriate transborder coercive procedural measures consequently play a pivotal role in facilitating effective international cooperation. This article examines the efficacy of South African laws in dealing with the challenges presented by police powers to search for and seize evidence in cyber environments. It analyses the rudimentary powers that exist in South African criminal procedure regarding the search for and seizure of evidence in cyber environments, and compares them against the backdrop of the more systemic and integrated approach proposed by the Cybercrime Convention.
A proposed model for the appointment and dismissal of the national commissioner of the South African Police Service : a comparative studyAuthor M. MonteshSource: Journal of Law, Society and Development 1, pp 68 –89 (2014)More Less
When South Africa's first democratically elected president was inaugurated on 10 May 1994, South Africans were anxious to see who would be leading the police service. Nelson Mandela followed his heart without bowing to political pressure and appointed seasoned police official Commissioner George Fivaz. Although the Interim Constitution Act 200 of 1993 was silent on the powers of the President to appoint the national commissioners, this appointment was made in terms of section 214(1) of that Act. At the time George Fivaz's term expired, Mandela was also bowing out of the political limelight. When Thabo Mbeki assumed the presidency in 1999, he appointed Jackie Selebi, a former Umkhonto we Sizwe (MK) cadre, who came from the Department of Foreign Affairs without any policing experience. This appointment was made in terms of section 207 of the Constitution of the Republic of South Africa, read with section 7(1)(a) of the South African Police Service Act 68 of 1995. Section 8(1) of the South African Police Service Act stipulates that 'if the National Commissioner has lost the confidence of the Cabinet, the President may establish a board of inquiry to inquire into the circumstances that led to the loss of confidence, compile a report and make recommendations.'
After serving his first term, reports of Selebi's involvement in the criminal underworld began to emerge. As a result of these reports, the then Directorate of Special Operations (the Scorpions) investigated Selebi's involvement in corrupt activities. In 2007, Selebi was charged inter alia with two counts of corruption; in 2010, he was found guilty of corruption and sentenced to 15 years' imprisonment. Surprisingly, on 2 August 2009, President Jacob Zuma appointed General Bheki Cele, who also came from an MK background without any policing experience, as the third National Police Commissioner.
Within a year, reports of Cele's involvement in illegal lease deals began to emerge and the office of the Public Protector was called in to investigate the allegations. As a result of its findings of improper conduct and maladministration, he was suspended in 2011 and a commission of inquiry was established in terms of section 8(1) of the South African Police Service Act 68 of 1995 to find out whether the Commissioner was fit to hold office. General Cele was fired for maladministration and corruption and was replaced by General Riah Phiyega, who also did not have any policing experience. A few months after her taking office, the Marikana incident occurred and all the blame for it has been directed at the National Commissioner, although the commission has not yet finalised its mandate. In view of the above-mentioned incidents, it is clear that there is a problem with the way in which the National Commissioner is appointed. This article seeks to unravel the powers of the president in appointing the National Police Commissioner and discuss the cases of the two former incumbents who bowed out of office in disgrace without completing their terms of office. It also includes a comparative study with countries such as Kenya, Northern Ireland, Uganda, Canada and selected countries from the Caribbean islands. As a way forward, a new model for appointing and dismissing the National Commissioner for South Africa is proposed.
Author Stephen De la HarpeSource: Journal of Law, Society and Development 1, pp 90 –109 (2014)More Less
The promotion of international trade is seen as one of the important instruments to ensure development in developing nations and regions. The history of the World Trade Organisation (WTO) and the drafting of many regional and similar international trade agreements are evidence of this. The Southern African Development Community (SADC) is no exception.
Author Harold A. McDougallSource: Journal of Law, Society and Development 1, pp 110 –135 (2014)More Less
What's the problem and where did it originate?
The murder of Trayvon Martin in 2012 and the acquittal of his killer George Zimmerman a year later were deeply disturbing events, inflaming racial tension and provoking nationwide protests in the United States (http://bostonherald.com 2013). Two years later, I find myself seeing the tragedy as a reflection of an American culture burdened not only by racism, but also by wider oppression and subordination, hyper-masculinity, violence and an obsession with guns.