- A-Z Publications
- Journal of Law, Society and Development
- Previous Issues
- Volume 2, Issue 1, 2015
Journal of Law, Society and Development - Volume 2, Issue 1, 2015
Volume 2, Issue 1, 2015
Author Sibusiso Vil NkomoSource: Journal of Law, Society and Development 2, pp 1 –3 (2015)More Less
The introduction of the Journal of Law, Society and Development has been timely as it makes its appearance on the academic publishing stage at a time when South Africa and the world at large are in search of enquiry that cuts across disciplinary boundaries. Investigating and analysing the challenges of our times and arriving at both scientific and sustainable solutions requires what the journal advocates as being 'multi-, inter- and transdisciplinarity'. In recent times, much emphasis has been placed on the global economic and financial crises, in particular those sparked off in countries such as Greece, Italy, Spain and Portugal. In countries such as South Africa and the rest of the African continent the challenge of basing development on mineral commodities (this is a 19th-century European development strategy that has become antiquated for a modern Africa) and tourism income has left many of the continent's societies in difficult situations. There is no doubt that the content of research that emanates from these countries requires further interrogation from multidisciplinary, interdisciplinary and transdisciplinary perspectives.
BRICS and sub-Saharan Africa trade interdependence and peace : evidence based on revealed comparative advantagesAuthor Hailay Gebretinsae BeyeneSource: Journal of Law, Society and Development 2, pp 4 –28 (2015)More Less
This study examined economic integration through trade between BRICS (Brazil, Russia, India, China and South Africa) countries and sub-Saharan Africa. The study examines the comparative advantages of the two economic blocks with respect to the exportation of merchandise (food, agricultural raw materials, fuels, ores and metals, and manufactures). The findings of this study reveal the actual status of these two regions as economic partners in each of the five sub-sectors of merchandise exports. The trend shows that, with the exception of manufactures exports, the competitiveness of all sub-sectors of the merchandise exports of BRICS is characterised by a declining trend. BRICS has a comparative advantage in the world in the exportation of manufactures and fuels, and comparative disadvantage in the export of food, agricultural raw materials, and ores andmetals. Interestingly, manufactures are continuously and consistently in a steadily rising trend. This is evidence that BRICS's structural transformation towards higher valued-added commodities is proceeding well, which means that policy makers should be considering ways of enhancing it further. In the case of sub-Saharan Africa, with the exception of manufactures exports, it is found to have comparative advantages in all merchandise exports. Sub- Saharan Africa's competitive advantage is the highest in the exportation of ores and metals, followed by fuels, agricultural raw materials and food. Sub-Saharan Africa has a comparative disadvantage in the export of manufactures throughout the period considered in this study. This implies that the prospects of structural transformation to downstream of the higher value-added commodities export part of the supply chain are good: the slow pace of transformation towards higher value-added goods should therefore be demanding the attention of policy makers. The study has revealed that sub-Saharan Africa is more competitive than BRICS in the exportation of ores and metals, fuel, agricultural raw materials and food. On the other hand, BRICS is more competitive than sub-Saharan Africa in the export of manufactures.The study has also revealed that significant economic integration can be sustained between BRICS and sub-Saharan Africa in the exportation of all merchandise sub-sectors. Specifically, sub-Saharan Africa is a potential destination market for BRICS's exports of manufactures. Conversely, BRICS is also a potential destination market for sub-Saharan Africa's exports of ores and metals, fuel, agricultural raw materials and food. Economic integration between BRICS and sub-Saharan Africa favourably influences peace and stability in the regions. Sustaining peace and stability in these regions also favourably influences the well-being of the communities.
Author Juana CoetzeeSource: Journal of Law, Society and Development 2, pp 29 –47 (2015)More Less
Economic co-operation and integration brings with it a need to harmonise mechanisms for the regulation of international trade, not only at a public-law level between states but also at a private-law level between traders inter partes. It is often forgotten that differences in the substantive law applicable to a contract function as a non-tariff barrier to trade. Because international trade facilitates economic development, the focus in this article is on the harmonisation of sales laws. Traditionally, private law harmonisation has been conducted by international private or inter-state organisations that specialise in the harmonising of law ata global level. Today, private organisations and groups devoted to harmonising business laws, as well as regional economic integration organisations, are also pursuing legal harmonisation. Global, regional and domestic laws now all exist in the same area of the law, which can give rise to duplication of efforts and problems with the co-existence of global and regional sales law. This article will discuss these issues with reference to the United Nations Convention on Contracts for the International Sale of Goods (CISG) and selected regional laws in considering whether regional harmonisation can act as a stepping stone towards increased harmonisation at a global level or whether it is to be viewed as a threat to global integration and harmonisation.
Source: Journal of Law, Society and Development 2, pp 48 –65 (2015)More Less
In this article, the planning of electricity supply infrastructure is problematised from the ubuntu point of view. Among other things, I examine the impact of nuclear energy on planning electricity supply infrastructure in order to meet the administrative obligation to facilitate universal access to affordable, reliable and clean, modern electricity to the populace. In addition, flowing from the synergies between the hypothesis of cheap and clean electricity from nuclear capacity and collective benefits from available resources while protecting the environment, this article explores the right to access to electricity, and the role of the Department of Energy in providing electricity to the populace by planning electricity supply infrastructure that is in harmony with communities and environments, guided by the values of ubuntu.
Politics-law convergence or divergence? 'small' political parties, realpolitik and South Africa's 20 years of democracyAuthor Kealeboga J. MaphunyeSource: Journal of Law, Society and Development 2, pp 66 –92 (2015)More Less
This article examines South Africa's 20-year democracy by contextualising the roles of the 'small' political parties that contested South Africa's 2014 elections. Through the prism of South Africa's Constitution, electoral legislation and the African Charter on Democracy, Elections and Governance, it examines these parties' roles in South Africa's democratisation; their influence, if any, in parliament, and whether they play any role in South Africa's continental orinternational engagements. Based on a review of the extant literature, official documents, legislation, media, secondary research, reports and the results of South Africa's elections, the article relies on game theory, rational choice theory and theories of democracy and democratic consolidation to examine 'small' political parties' roles in the country's political and legal systems. It concludes that the roles of 'small' parties in governance and democracy deserve greater recognition than is currently the case, but acknowledges the extreme difficulty experienced by the 'small' parties in playing a significant role in democratic consolidation, given their formidable opponent in a one-party dominant system.
Author Patrick MatsemelaSource: Journal of Law, Society and Development 2, pp 93 –119 (2015)More Less
Freedom of testation is considered to be one of the founding principles of the South African law of testate succession. Testators are given freedom to direct how their estate should devolve and free rein to dispose of their assets as they deem fit. As a result, effect must be given to the expressed wishes of the testator. Prior to 1994, such freedom could be limited only by common law or statutory law; more recently, such freedom has been tested against the Constitution of South Africa. This means that a provision in a will cannot be enforced by the courts if it is contra bonos mores, impossible or too vague, in conflict with the law, or is deemed to be unconstitutional. Having regard to the unfair discrimination provisions of section 9(3) of the Final Constitution, can a court enforce a will or a trust deed which discriminates against potential beneficiaries on account of their race, gender, religion or disability? Will such clause pass the test of constitutionality, be justified or considered to achieve a legitimate objective? Can potential beneficiaries or anyone who has locus standi challenge the freedom of testation by relying on the freedoms and rights entrenched in the Bill of Rights? It is against this background that the paper attempts to answer these questions and explore the extent to which the Constitution has an impact on freedom of testation. The central thesis of the article is to determine whether clauses in wills or trust instruments which differentiate between different classes of beneficiary can be deemed to be valid. This is done by looking at several more recent cases that have appeared before our courts.
Author M.T. MokoenaSource: Journal of Law, Society and Development 2, pp 120 –139 (2015)More Less
The right to remain silent is one of the most important symbols of a fair trial in the accusatorial legal systems, to which South Africa also belongs. In certain countries, such as the United States and South Africa, this right is constitutionally entrenched as a fundamental human right, which virtually guarantees that adverse inferences cannot be drawn against an accused who fails to disclose pre-trial information. The accused is thereby excluded as a critical source of information during this stage of the proceedings. In essence, this means that the criminal process is compelled to close one eye to a valuable and crucial source of information. Other jurisdictions within the accusatorial family, notably England and Scotland, have introduced legislation aimed at crime control which essentially compels the accused to break his or her silence during the pre-trial stage of the criminal process. The very essence of the right to remain silent as a fundamental human right is proving problematic to the South African Constitutional Court when considering it within the context of the limitation clause. It is argued, in this article, that the solution lies, first, in a substantive constitutional analysis of rights and, secondly, in interpreting the right as a functional evidentiary principle with the aim of securing procedural fairness.
Author Ulrich G. SchroeterSource: Journal of Law, Society and Development 2, pp 140 –164 (2015)More Less
The use of mobile communication devices such as mobile phones, smartphones, tablet computers or notebooks with access to the internet has become an everyday phenomenon in today's business world. However, whenever mobile communications are used for the purposes of contract formation, that is, the mobile dispatch of offers or acceptances, the mobility of the communicating parties raises important difficulties for the application of traditional legal rules: The fact that messages transmitted via phone, email or SMS can be dispatched and received at virtually any place on earth challenges the categories of private international law and international contract law, which are based on the (unspoken) assumption that parties communicate from their home country. The existing legal framework for cross-border contracts therefore hardly takes into account the possibility that parties may move across borders, and that the place of their communications may accordingly vary. The present article addresses the legal difficulties and uncertainties that crossborder mobile communication raises under international rules of law. It elaborates on the traditional role of the site of communication in this context before scrutinising how 'mobility friendly' the provisions of the relevant conventions developed by the United Nations, the Hague Conference for Private International Law and other organisations are. In doing so, it critically discusses in particular article 10(3) of the UN Electronic Communications Convention of 2005, the most recent attempt at regulating mobile communications. Finally, it identifies a number of problems that have hitherto been overlooked (as notably the interaction of article 10(3) of the UN Electronic Communications Convention with traditional private international law rules on the formal validity of contracts) and proposes appropriate solutions.
Author Paul SmitSource: Journal of Law, Society and Development 2, pp 165 –188 (2015)More Less
Globalisation and the increasing movement of capital and labour across international borders, with the exception of migrant workers who are facing major obstacles due to immigration laws, are creating a situation where laws in general and labour laws in particular are acquiring an international character. International bodies such as the United Nations, the International Labour Organisation and the European Union have adopted various international norms and standards to which most countries have agreed and which have established minimum international standards for basic universal human rights and worker rights. The Southern African Development Community is a transnational organisation that has also adopted certain basic norms and standards in its Treaty, Charter on Fundamental Social Rights and various protocols that are applicable to all citizens within the Community. In this contribution, the concept of transnational labour relations is considered. The different international approaches towards transnational labour relations are evaluated, as is the manner in which the European Union approached the integration of regional labour standards. The author seeks to establish what the Southern African Development Community can learn from the European Union's experience and in what way a transnational labour relations system or regional labour standards regime for the Southern African Development Community can be established.