Southern African Public Law - latest Issue
Volume 30, Issue 2, 2015
The inter-relationship between administrative law and labour law : public sector employment perspectives from South AfricaSource: Southern African Public Law 30, pp 319 –346 (2015)More Less
The legal position of public sector employees who challenge employment decisions taken by the state or organs of state in its/their capacity as employer in South Africa has long been problematic. Even though at least four judgments by the Constitutional Court of South Africa have considered whether employment-related decisions in the public sector domain do or could amount to administrative action and whether administrative law and/or labour law should be applicable for purposes of dispute resolution, legal uncertainty remains the order of the day due to a combination of factors. The authors assess whether (and to what extent) the rich South African administrative-law jurisprudence remains of importance in relation to the public employment relationship, bearing in mind the applicable legal considerations, including the inter-relatedness, interdependence and indivisibility of the range of applicable fundamental constitutional rights. Considering the debate in other jurisdictions on this issue, the authors develop a paradigm for situating different employment-related disputes as matters to be decided on labour and/or administrative-law principles in South Africa. This requires an appreciation, to the extent relevant, of the unique nature public sector employment relationships and a detailed investigation of the applicable legal sources and precise parameters of the cases already decided in the country. The position of employees deliberately excluded from the scope of labour legislation is analysed, for example, as is the legal position of high-ranking public sector employees. The outcome of the investigation is important for determining the legal principles to be applied in cases involving public sector employees in their employment relationship, and for purposes of determining the question of jurisdiction. Recent cases, for example where the courts have permitted the state, as employer, to review its own disciplinary decision (via a state-appointed chairperson of a disciplinary hearing) on the basis that this amounts to administrative action which is reviewable, are also examined in the light of the uncertainty regarding the precise nature and scope of the review.
Legal and public trust considerations for the Ndumo Game Reserve and South Africa-Mozambique border, following the migration of the Usuthu RiverSource: Southern African Public Law 30, pp 347 –378 (2015)More Less
The Usuthu River forms part of the international boundary between South Africa and Mozambique. In 2002, this River breached its south bank within the Ndumo Game Reserve and established a new channel within the protected area. In response to the breach, Mozambique proposed the excavation of the floodplain and the establishment of berms to force the flow of the river back into its original alignment. Analysis of the origin and associated history of this portion of the international boundary indicates that it is unlikely that the international boundary has moved with the breech. Furthermore, customary international law pertaining to avulsion or mutation alvei of rivers supports the notion that the international boundary remained in the original channel of the Usuthu River. Finally, case history of a similar circumstance in Africa affirms that this boundary is unlikely to have shifted with the avulsion of the Usuthu River. The Mozambican proposal brings to the fore an array of public trust considerations which are founded in South Africa's Constitution, and environmental and biodiversity conservation legislation. These considerations prohibit the excavation of the Ndumo Game Reserve. The concept of the state acting as a trustee for, inter alia, biodiversity and protected areas, is reinforced by various water and biodiversity-orientated multilateral agreements to which South Africa is a signatory. Within these, the ones adopted by the Southern African Development Community are the most profound in that they, and specifically the Protocol on Wildlife Conservation and Law Enforcement, enjoin state parties from taking decisions that may cause damage to the trust entity beyond the limits of their sovereignty.
Author Chuks OkpalubaSource: Southern African Public Law 30, pp 379 –405 (2015)More Less
For the sake of context, the abstract of this contribution is repeated below (see (2015) 30(1) SAPL for Part 1 of this article).
Early in the life of the South African democratic dispensation, the Constitutional Court distinguished the conduct of the President as the head of the executive branch of government from an administrative action. However, it held that executive conduct was, like all exercise of public power, constrained by the constitutional principles of legality and rationality. So, as a necessary incident of the rule of law, the executive may not exercise powers or perform duties not conferred upon it by the Constitution and the law. The cases decided since then demonstrate in practical and theoretical terms the democratic aphorism that no one is above the law and everyone is subject to the Constitution and the law. In the process, the Constitutional Court has entertained appeals for the review of executive powers such as where, inter alia, the President had acted on wrong advice or terminated the appointment of the head of the National Intelligence Agency; the legality of Ministerial Regulations and of the rationality of the presidential appointment of the Director of the National Prosecuting Authority. The role of reasonableness as a ground of review of executive conduct rather than administrative action has been demonstrated in the many cases where the distinction has been made between the rationality test and the reasonableness test. The conclusion, therefore, is that, through their interpretation of the Constitution and review of executive powers, the courts have developed a code of principles regarding the rule of law, good government, and democracy.
Animal rights theory, animal welfarism and the 'new welfarist' amalgamation : a critical perspectiveAuthor Jan-Harm De VilliersSource: Southern African Public Law 30, pp 406 –433 (2015)More Less
Adherents of the 'new welfarist' approach advocate welfare reforms as essential short-term steps en route to the ultimate ideal of animal rights. A critical engagement with the ideological underpinnings of animal welfare theory and animal rights theory illustrates the contrasting moral spaces that the animal occupies in these theories and that the 'new welfarist' approach is philosophically unsound in assuming that these approaches are ideologically compatible. Karin van Marle's 'jurisprudence of slowness' and Jacques Derrida's exposition of the sacrificial logic underlying Western culture's exclusion of animals from the 'thou shalt not kill' proscription provides a framework within which to illustrate and engage with the ideological purlieu that separates these theories.
Author Elmien (W.J.) Du PlessisSource: Southern African Public Law 30, pp 434 –455 (2015)More Less
Estoppel is a well-known defence against (or limitation on) the rei vindicatio. This would be the case for example where the owner by some representation creates the impression that a third party is the owner of a thing and that the third party has the capacity to alienate the property. The bona fide third party can, when the owner then institutes the rei vindicatio to recover his property, raise estoppel and preclude the real owner from claiming his property.
Before 2002, if one wanted to evict an unlawful occupier from certain residential premises, one would institute the rei vindicatio. In Ndlovu v Ngcobo; Bekker v Jika  4 All SA 384 (SCA) the court, however, ruled that the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) must be used in all instances of evicting people from urban residential premises. The question is: does estoppel serve as a defence/limit in the application of PIE? Surprisingly few cases deal with this issue. The court in Joe Slovo made a few remarks about the possibility of using estoppel as a defence against the rei vindicatio by looking at the interpretation of 'tacit consent' required by PIE. This article will interpret provisions of PIE and look at case law that deals with the use of estoppel in lease cases. It will conclude by remarking on the feasibility of using estoppel as a defence in PIE eviction cases.
Author Marelize MaraisSource: Southern African Public Law 30, pp 456 –483 (2015)More Less
The clear-cut exclusion from constitutional protection of 'hate speech' contemplated by section 16(2)(c) of the Constitution is not per se concerned with the expression or promotion of hurtful or offensive discriminatory views, not even if intentionally aimed at disadvantaging the target group. Rather, it is concerned with the devastating human rights risk that irrational, cruel behaviour may be borne out of the hatred instilled in others by the inflammatory speech of reckless orators who advocate hatred. The article submits that existing legislative measures do not satisfactorily meet the responsibility to take necessary legislative measures to safeguard society against the realisation of this risk. It points out that while expression under section 16(2)(c) of the Constitution to a substantial extent falls within the ambit of existing criminal offences, in particular the common law offence of incitement to commit a crime, expression contemplated by section 16(2)(c) that incites others to inflict harm by means that do not constitute criminal offences, for instance, discrimination or the promotion of hatred, is prohibited under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, but not criminalised. Expression of this nature should be criminalised, but only when the inciting action or attitude will have the effect of victimising target groups to the extent that they are effectively prevented from exercising their constitutional rights, in particular their right to freedom of expression. An analysis of the Draft Prohibition of Hate Speech Bill, 2004 reveals that the Bill fails to provide appropriate protection. Taking into account the guarantees of the Constitution including the right to freedom of expression, international commitments, comparative law and, most significantly, relevant features of South African society, the conclusion is reached that the criminalisation of incitement to promote hatred on the grounds stipulated in section 16(2)(c), as well as on the additional grounds of sexual orientation and nationality, is indeed called for.
Author Gugulethu NkosiSource: Southern African Public Law 30, pp 484 –503 (2015)More Less
This article seeks to provide an analysis of the right of children to social security as provided for in the various international legal instruments, and as assimilated in other legal documents. Furthermore, it argues that scarcity of resources prevents children from enjoying socio-economic rights, including the right to social security adopted through international instruments and entrenched in domestic laws. The Convention on the Rights of a Child provides for the right to social security in the event of lack of resources to benefit the child. So does the International Covenant on Economic, Social and Cultural Rights and the African Charter on the Rights and Welfare of the Child. In all the said legal instruments, the clauses on social security do not explicitly prescribe the rights that ought to be promoted through it. However, since the jurisprudence on socio-economic rights emphasises the view that socio-economic rights are interrelated, interdependent and indivisible, it can also be safely said that through social security, beneficiaries, that is children, should be able to enjoy access to other socio-economic rights in general. Therefore, the significance of the right to social security as a means to address poverty and facilitate the development of children is explored.
Better late than never : lessons from S v Jordan in strengthening women's participation in litigation : journalAuthor Amanda SpiesSource: Southern African Public Law 30, pp 505 –518 (2015)More Less
In 2002 the South African Constitutional Court rejected the decriminalisation of sex work and for many years the judgment has constricted further debate on the topic. In 2013 organisations such as the Commission for Gender Equality have again publicly committed themselves toward lobbying for the decriminalisation of sex work. The renewed debate has necessitated a reconsideration of the Court's decision in S v Jordan and this article focuses on the organisations that participated as amicus curiae in the matter. The discussion highlights the importance of organisational participation in litigation and how this participation could provide the context in which to consider future debates on the topic.
Source: Southern African Public Law 30, pp 519 –554 (2015)More Less
In this note on land the most important measures and court decisions pertaining to restitution, land redistribution, land reform, unlawful occupation, housing, land use planning, deeds, surveying, rural development and agriculture during the period May 2015 to October 2015 are discussed.
Author Andrew MuirSource: Southern African Public Law 30, pp 556 –579 (2015)More Less
The KwaZulu-Natal, Pietermaritzburg High Court case of Le Sueur v eThekweni Municipality was decided on the basis that a municipality, in the local government sphere, was permitted to legislate within the functional area of the environment. The Constitution of the Republic of South Africa, 1996 sets out functional areas of governmental powers in Schedules 4 and 5 and allocates these powers to National, Provincial and/or Local Government. Established jurisprudence in the Constitutional Court has entrenched the sanctity of the functional areas and interpreted these areas in such a way as to prohibit intrusion by one sphere into a functional area allocated to another. Both the 'environment' and 'municipal planning' are allocated functional areas, the first to the National and Provincial spheres concurrently and the second to local government. The judgment in the Le Sueur case is seemingly at odds with the accepted jurisprudence. Although the decision in Le Sueur seems to be intuitively correct the reasoning employed seems to be somewhat strained. This paper proposes an alternative rationale which could be used to permit the same decision to be reached in a less strained manner. The local government 'right to govern' is postulated as a plenary power granted to local government and this, in turn, requires that Schedules 4 and 5 be interpreted in a slightly different manner. If this approach is followed then local government would be entitled to legislate in the functional area of the environment (and indeed generally) subject to the limitations discussed.
Cynicism and the rule of law : a critical analysis of President of the RSA v M&G Media Limited 2012 2 SA 50 (CC) and associated judgments : case notesSource: Southern African Public Law 30, pp 580 –597 (2015)More Less
Omar al-Bashir from leaving South Africa. Although Al-Bashir is wanted by the International Criminal Court for war crimes and South Africa is a signatory to the Rome Statute and has passed the Implementation Act, the government failed to arrest him as required by an order of court. Short-term political considerations appear to have outweighed the need to respect the rule of law.
Parallels can be drawn between this incident and the decision by the executive to refuse access to the Khampepe Report when requested to do so by the Mail and Guardian newspaper. The report was prepared at the request of former President Mbeki by two senior South African judges, after a visit to Zimbabwe shortly before the election held in that country in 2002. In an attempt to prevent disclosure, the executive approached various courts on six different occasions and drew out the process for more than six years.
The main issue in this case is the use of section 80 of the Promotion of Access to Information Act by the courts, a discretionary power that is applied sparingly. In terms of PAIA, the state is prevented from making reference to the content of a record in order to support a claim of exemption. In such instances, section 80 provides courts with the power to inspect the record - a procedure known as a 'judicial peek' - in order to make a determination as to whether the exemption is justified. This case provides a clear example of how the state cynically used this provision as a dilatory tactic in refusing access to the report.
The current system that relies solely on the courts to handle access to information matters undermines the main objectives of the Act and is inefficient and costly. It is recommended that PAIA be amended to provide for an information commissioner with powers to mediate and make binding decisions.