Law, Democracy & Development - Volume 18, Issue 1, 2014
Volumes & issues
Volume 18, Issue 1, 2014
Rights discourse and practices, everyday violence and social protests : who counts as subject and whose lives are real in the neo-colonial South African nation state?Author Linda StewartSource: Law, Democracy & Development 18, pp 1 –21 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.1More Less
I seek to provide an explanation for the disjunction between the lived realities of marginalised, displaced and impoverished collectivities in the neo-colonial South African nation state and the language, politics and practices of human or constitutional rights that represent them. I focus on individuals and groups and their struggles to participate in decisions affecting their needs and material existence, in the absence of assistance by public interest litigation, formalised civil society organisations or organised social movements, while facing economic constraints, complicated legal and political processes, and being bound to dismal structural and spatial conditions. I argue that individual/collective bodies suffer from everyday violence and that the modernist legal construction of the subject "derealises" their suffering and silences their needs. Therefore, I aim to examine some of the human rights discursive and non-discursive practices that produce the body as a subject of constitutional rights in the context of the neo-colonial South African nation state, and to question how to "realise" the suffering of the individual and of groups.
Source: Law, Democracy & Development 18, pp 22 –36 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.2More Less
Generally, regional integration is when a group of countries get together and develop a formal agreement (by way of treaties) regarding how they will conduct trade with each other. Ernst Haas, perhaps the most prominent integration scholar of the time, defined integration as follows:
[T]he process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities toward a new centre, whose institutions possess or demand jurisdiction over pre-existing national states. The end result of a process of political integration is a new political community, superimposed over the pre-existing ones.
Author Ashraf BooleySource: Law, Democracy & Development 18, pp 37 –57 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.3More Less
"Treat your women well and be kind to them for they are your partners and committed helpers". Generally, Muslims (men and women) believe that asking perplexing questions about Islam is frowned upon. A few believe that it is shameful to ask pertinent questions or to express a degree of doubt. This, however, is not according to the tenets of Islam. Islam permits the raising of questions and debates about pertinent issues. The manner of inquiry is referred to as ijtihad or personal reasoning. Kamali rightly points out that ijtihad is a continuous process of development of a person, whereas sacred revelation and Prophetic narrations terminated upon the departure of Muhammad. According to traditional Islamic scholars, it was not an impropriety to raise difficult questions about Islam or to highlight one's doubts; rather, it would be a sin not to do so. In fact, one of the responsibilities of scholars was to prepare cogent answers in response to inquiries from the Muslim community.
Author Henk KloppersSource: Law, Democracy & Development 18, pp 58 –79 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.4More Less
Motivated by the imperative to redress the imbalances caused by economic exclusion, government has taken remedial measures and established a framework aimed at empowering Black South Africans. Government's commitment to empowering previously disadvantaged South Africans and achieving socio-economic transformation is underlined by its enactment of the Broad-Based Black Economic Empowerment Act which is aimed at advancing social and economic justice. This Act represents an attempt by government to achieve substantive equality by placing black people in a position to fully participate in all spheres of society in order to develop their full human potential. The Act strives towards transforming society through the dismantling of economic inequality and is widely regarded as the pre-eminent vehicle for the redistribution of wealth in post-apartheid South Africa. It further represents an attempt to address the disadvantages and vulnerability caused by apartheid and consequently has a clear remedial nature.
Reflections on the rejection of the right to sexual orientation by the institution of traditional leadership : lessons from South AfricaAuthor Nomthandazo NtlamaSource: Law, Democracy & Development 18, pp 80 –91 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.5More Less
The submission made by the National House of Traditional Leaders to the Constitutional Review Committee for the removal of sexual orientation from the protection accorded to it in section 9(3) of the 1996 Constitution has sparked debate on the regulation of traditional authority by the institution of traditional leadership in accordance with the foundational values of the new constitutional dispensation. The debate is, amongst others, related to the impact of the submission on the rights of couples in same-sex relationships within the framework of the traditional system of governance. It further raises questions as to the effect of traditional values, such as Ubuntu, in the protection of these rights under the system of traditional authority. Ubuntu is proclaimed as an overarching African philosophy which encapsulates the collective respect for all rights for all people without distinction.
Source: Law, Democracy & Development 18, pp 92 –134 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.6More Less
Thirty years ago, the international development community was abuzz with excitement. The reason was that the almost perfect solution to poverty, unemployment, inequality and low growth in developing countries appeared to have been finally located. This solution was microcredit. As originally conceived, microcredit is the provision of tiny micro-loans to the poor to allow them to establish a range of income generating activities, thereby supposedly facilitating an escape from poverty. A widespread assumption quickly emerged suggesting that the microcredit model would, among other things, generate significant local employment opportunities, raise average incomes, empower women, reduce inequality, and so, overall, create the basic foundation for sustainable "bottom-up" local economic and social development. Not surprisingly, given such assumed benefits, microcredit was quickly and very centrally incorporated into the international development community's array of local development policies and programs, ultimately becoming the most important international development policy of all.
Source: Law, Democracy & Development 18, pp 136 –163 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.7More Less
There has been speculation in South African law in recent years regarding the nature and scope of the powers and duties conferred on the local competition authorities. This is due in part to divergent opinions in case law surrounding the nature and scope of the powers of the competition authorities, the interpretation of provisions relating to administrative penalties as well as the introduction of new criminalising provisions by the Competition Amendment Act 1 of 2009. Given that Chapter 5, Part B of the Competition Act already provides the Competition Tribunal with powers comparable to those of a prosecuting authority when dealing with complaints referred to it, procedural fairness in competition law enforcement proceedings, as well as the nature of remedies demanded and imposed in these proceedings, have become pertinent issues for analysis. Whereas some maintain that the powers and duties of the competition authorities are necessary to abide by the stated objectives of the Act, and that the administrative penalties commonly imposed on contravening firms are purely administrative and a form of equitable relief, others argue that the system is frighteningly similar to criminal procedural systems, and as such should be held to a higher standard and burden of proof at all times. This article attempts to identify and elaborate on the core issues related to the above and seeks to determine what position, if any, should be adopted by our courts and legislature to address them. First, a brief analysis of the historical development of South African competition law will be undertaken, with special emphasis on identifying the intention of the legislature. Thereafter a review of how the relevant provisions (and the legislature's intent) have been interpreted by South African courts is conducted, whereafter the traditional approach to the difference between criminal and civil procedure is examined. In this regard, a comparative analysis will illustrate how the situation has unfolded in foreign jurisdictions, specifically those of Canada, the European Union and the United States. These jurisdictions have been chosen, in particular due to their similarities with South African competition law, as well as the fact that South African courts often refer to them for guidance when developing its competition jurisprudence. Finally, a brief concluding overview shall be provided.
Before the camel's back is broken : how Malawi provides succour to employers by jettisoning the payment of a severance allowance and pension benefits at the same timeAuthor Mtendeweka MhangoSource: Law, Democracy & Development 18, pp 164 –177 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.8More Less
After the enactment of the Employment (the Employment Act), the legal position in Malawi was that an employee, who left the employment of the employer (for reasons other than his own resignation or misconduct) that had provided voluntary contractual pension benefits, was entitled to payment of both pension benefits and a severance allowance. The employer was liable for these payments. Hence, there was a double burden on the employers, who operated voluntary pension schemes for their employees, to statutorily pay severance allowances and contractually pay pension benefits upon the termination of employment. It is important to mention that prior to 2011 the provision of pension benefits was not mandatory in Malawi but voluntarily provided for by some employers in their employment contracts. Hence, I refer to voluntary contractual pension benefits to distinguish them from the current mandatory pension benefits entitlement under the Pension (the Pensions Act). There were numerous legal challenges by employers against this double financial burden, but the courts, including the Supreme Court of Appeal in Auction Holdings, consistently held that employees are entitled to be paid both a severance allowance and pension benefits upon termination of their employment by the employer, and that the employer is liable to pay these costs. This article discusses the problems surrounding the payment of a severance allowance and private pension benefits in Malawi. It starts by discussing the case law developments following the passage of the Employment Act and its subsequent amendments, which were repeatedly struck down by the courts. The article seeks to demonstrate the context which led to major pension and employment reforms in 2011 in the form of the Pension Act and the Employment Amendment (the Employment Amendment Act), which were concurrently enacted to specifically resolve the above problem. It examines the effects of these legislative reforms on Auction Holdings and later cases, and whether these legislative reforms undermined those judicial pronouncements. The article argues that the legal position that prevailed after 2000, when the Employment Act was enacted, no longer exists following the enactment of the Pension Act and the Employment Amendment Act. Further, it argues that Auction Holdings and its preceding cases are no longer good law at least on one legal proposition because the Pension Act and Employment Amendment Act undermined some aspect of Auction Holdings.
Author Mbuzeni MathenjwaSource: Law, Democracy & Development 18, pp 178 –201 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.9More Less
Since the onset of the current system of local government in South Africa, it has become possible to determine certain trends in respect of the supervision of local government. These trends demonstrate current thinking and approaches concerning the proper relationship between the three spheres of government. Government in the Republic "is constituted as national, provincial and local spheres of government". The structure of government, where powers are distributed among and simultaneously shared by different spheres of government, may pose challenges to the functioning of government. Accordingly, a mechanism is necessary to ensure that all the spheres of government exercise their powers properly for the good of governance in the Republic. Thus, intergovernmental supervision is a necessary but potentially intrusive component of the constitutional relationship between the spheres of government. The purpose of this article is to establish whether the practice of provincial government supervision of local government corresponds to the legal position and whether, perhaps, adjustments are required to bring the practice of supervision in line with the established legal position. The article is based on law as well as empirical studies based on interviews with officials in municipalities in various provinces. This article discusses the practice of supervision of local government in South Africa. The constitutional principle of co-operative government which informs intergovernmental supervision is briefly explained in the first instance. In setting the context for a discussion of the practice of the supervision of local government, the legal framework for the supervision of local government is subsequently discussed, and a conclusion is reached on the trends of supervision of local government in South Africa. For purposes of this article, the cases which deal with both the monitoring and intervention components of supervision of local government are discussed and assessed together. This is so because both the monitoring and intervention in local government reflect the trends of supervision in local government. In KwaZulu-Natal, supervision is examined in the Utrecht Local Municipality, IMbabazane Local Municipality, Abaqulusi Local Municipality, UMvoti Local Municipality and UMgungundlovu District Municipality. In the Western Cape, the trends are discussed regarding the supervision of the Overberg District Municipality and the Langeberg Local Municipality by the provincial government of the Western Cape. In the Eastern Cape, the supervision of Mnquma Local Municipality by the provincial government of the Eastern Cape is examined. These case studies assist in explaining the trends in provincial supervision of local government in South Africa.
Author Umakrishnan KollamparambilSource: Law, Democracy & Development 18, pp 202 –223 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.10More Less
General government procurement (including for defence) accounts for 20 per cent and 15 per cent of Gross Domestic Product (GDP) of Organisation for Economic Co-operation and Development (OECD) and non-OECD countries, respectively. Despite liberalisation of trade under the General Agreement on Tariffs and Trade (GATT) and the World Trade Organisation (WTO), government procurement largely continues to have high levels of home-bias. This is primarily so because a multiplicity of objectives drive government procurement. Considerations of government procurement as a policy instrument very often override cost-effectiveness as the primary consideration in determining it. For example, government procurement is commonly used as a policy tool for developing target sections of populations, industry, regions etc. In addition, according to Keynesian arguments, government procurement is the key instrument for fiscal policy intervention to kick-start a slowing economy. These multiple objectives create complexity because there are usually trade-offs involved between them in that attaining one is usually at the cost of the another.
Development as a right in Africa : changing attitude for the realisation of women's substantive citizenshipSource: Law, Democracy & Development 18, pp 224 –239 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.11More Less
Development has been a right in Africa since African leaders made the commitment thereto at the adoption of the African Charter on Human and People's Rights in 1981. Yet, in Africa, the majority of women cannot exercise citizenship rights because of the manner in which their society view them and, sometimes, even because of the way women view themselves. Development in critical aspects of the lives of the people is regarded as one of the envisaged products of constitutional democratic institutions. Women are at most times relegated to the status of "second class citizens" who only operate within the private spheres. While regional human rights instruments have made remarkable gains in ensuring that women within the region are protected, there is, however, a disconnect between the rights enshrined in the instruments and the daily reality of the majority of women. The majority of African countries are still far from creating an egalitarian society where men and women have equal opportunity and access to benefits. In this article, the authors argue that the conduct of governments in protecting the substantive rights of the majority of women in Africa is in total violation of domestic, regional and international law. Nigeria, for example, is committed to the protection of the human rights of all its citizens. However, citizenship rights in Nigeria do not seek to promote and protect the substantive rights of the majority of women. The implication is the complete erosion of dignity and fundamental rights. In other words, the majority of women lose the essence of the inherent membership of their society.
Human rights, core labour standards and the search for a legal basis for a trade-labour linkage in the multilateral trade regime of the World Trade OrganisationSource: Law, Democracy & Development 18, pp 240 –263 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.12More Less
Linking the right to engage in international trade to respect for human rights has emerged as one of the most controversial debates in contemporary international law discourses. Opponents of such a linkage point to inequalities in levels of development as a compelling reason for excluding a trade-labour linkage from the legal framework of the World Trade Organisation (WTO). In an era in which countries are vigorously competing for investment by multinational corporations, there is growing fear of a "race to the bottom" given that core labour standards are arguably being lowered to attract investors. While developing countries are being pressured by champions of private sector interests to neglect core labour standards in order to lure investors, democratic societies generally regard substantial compliance with core labour standards as a plausible social policy. This article explores the contemporary debates regarding a need to establish a trade-labour linkage in the WTO on the basis that core labour standards are human rights. This subject has become more prominent and assumed greater urgency given that recent data on governance and human rights protection reveals that developing countries are generally struggling to protect workers' rights. The article is divided into five sections. The first section introduces the rationale behind proposals to incorporate a trade-labour linkage clause in the WTO's legal framework. The immediately following section outlines some of the notable cases that suggest a negative attitude towards the protection of core labour standards in trade based on evidence from some developing countries. The third section then explores the need to protect core labour standards in trade. In this regard, an analysis of the positivist, normative and instrumentalist approaches to protecting core labour standards as human rights is undertaken. That analysis is then followed by an examination of the WTO's human rights commitments. The last section presents conclusions on strengthening proposals for a trade-labour linkage in the WTO's legal framework.
Author D. Brian DennisonSource: Law, Democracy & Development 18, pp 264 –288 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.13More Less
On 5 June 2012, the Constitutional Court of Uganda handed down its decision in Centre for Health Human Rights and Development (CEHURD) & others v Attorney General ("CEHURD"). The CEHURD petitioners challenged the adequacy of maternal health services in Uganda. Central to the petitioners' assertions is the claim that the levels of funding and maternal health care in Uganda amount to a denial of a constitutionally mandated right to health. The petitioners sought various forms of judicial remedies ranging from judicial declarations as to the unconstitutionality of government policies to the award of compensation to the families of the deceased victims of poor maternal health care. Uganda's Constitutional Court dismissed the petition, holding that matters of government health policy are non-justiciable political questions. The ruling was a significant blow to advocates for the judicial enforcement of social and economic rights and proponents of public interest litigation in Uganda. Suddenly, a legal principle of American origin stood in the way of judicial engagement with the pressing matter of maternal health.
Devolution of power in Zimbabwe's new constitutional order : opportunities and potential constraintsSource: Law, Democracy & Development 18, pp 289 –304 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.14More Less
Many countries in sub-Saharan Africa have adopted constitutions which legislate different forms of decentralisation for their governance structures and systems. This currency and desirability for decentralisation is built on a consensus of African governments, international development agencies and civil society organisations that see it as a democratic system of government which advances citizen participation in human development. This consensus further sees decentralisation as a key for local democratisation in Africa since it brings a locally responsive government closer to the people and makes government more accountable to local people. Although there are four main forms of decentralisation, namely, administrative, political, fiscal and market, many African governments have chosen to implement political decentralisation (devolution) and administrative decentralisation (deconcentration) with those running devolved systems of government being seen and acclaimed as more democratic. These are the democratic credentials usually showered on Kenya and Uganda which run devolved governments, as well as South Africa which uses a unique decentralisation model based on a three tier co-operative government structure. Of late, Zimbabwe has joined this group of African countries with constitutions that legislate a devolved governance system. Zimbabwe's new Constitution adopted in May 2013 states that governmental powers and responsibilities must be devolved between the national government, provincial and metropolitan councils and local authorities which are expected to ensure good governance by being effective, transparent, accountable and responsive to the needs of local people. This introduction of devolution of power as a new governance model in Zimbabwe replaces deconcentration on the premise that devolution is a more democratic, citizen centred, participatory, more transparent, accountable and locally relevant development focussed governance system. This article examines the opportunities and potential constraints associated with this transition from deconcentration to a three tier devolved system of governance. It does this through answering the following questions: To what extent will this reconfiguration of the State from centralisation to devolution give citizens more power to elect representatives who understand and champion their local development needs? Will local needs, aspirations, influence and drive the development agenda as opposed to the current top-down deconcentration model of development? Which consequentialist and deontological benefits will be derived from devolution of power? Is devolution going to influence equitable and fair exploitation of local resources for the benefit of all communities including "marginalised" provinces, such as, Matabeleland, Midlands and Manicaland? Does an anti-devolutionist ZANU-PF dominated government have the political will to fully implement devolution? Or maybe devolution of power will remain a symbolic constitutional provision while the deconcentration status quo remains?
Author Yousuf A. VawdaSource: Law, Democracy & Development 18, pp 305 –316 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.15More Less
For South Africa, the decision handed down by the Indian Supreme Court in the Novartis case could not be more timely. As South Africa's legislators and policymakers ponder a new draft intellectual property (IP) law, they would do well to take heed of the import of this decision. While on the face of it the case involved "evergreening" - the claim for a patent on an incremental improvement of an existing cancer drug (as opposed to a "genuine" innovation) - the decision has significance far beyond the question of which medicines ought to be patented. It is instructive in that it impacts the discourse on a wide range of issues, such as: a country's ability to design a patent regime according to its specific conditions and context; the role of the courts and whether patent disputes may be resolved on narrow legal and technical arguments, or whether the wider context of the interests of society at large is to be considered; and the ramifications of this decision on the role of India's generic manufacturers in facilitating the accessibility and affordability of much-needed medicines in developing and least developed countries. This article traces the genesis of Indian patent law with regard to the protection of product patents for medicines, reviews the changes brought by the TRIPS Agreement and India's measures to become compliant with this international regime, reviews the legal and policy arguments raised in the Novartis case, and discusses the implications of this decision on other developing and least developed countries in terms of access, policy considerations and legislative choices when crafting appropriate laws.
Regional integration in the area of intellectual property : the case for Southern African Development Community involvementAuthor Marumo NkomoSource: Law, Democracy & Development 18, pp 317 –333 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.16More Less
As the Southern African Development Community (SADC) seeks to position itself as a conduit to promote economies of scale and contribute to the development of its Member States, the importance of intellectual property (IP) as a driver for innovation, investment and thus economic activity should not be understated. While, admittedly, IP is not the most pressing priority for most African countries, it is of considerable importance to our trading partners and their constituent industries as demonstrated in multilateral forums such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO) and at regional level as seen during the Economic Partnership Agreement (EPA) negotiations with the European Community (EC).
A critique of the protection afforded to non-standard workers in a temporary employment services context in South AfricaSource: Law, Democracy & Development 18, pp 334 –346 (2014) http://dx.doi.org/http://dx.doi.org/10.4314/ldd.v18i1.17More Less
The increase in temporary employment services is an international phenomenon, indicative of the needs of a rapidly changing global village, where industries expand and contract at increasing speed and modify their product offerings to match prevailing global demand. The use of labour brokers therefore forms part of a wider development, namely, the changing nature of work and, in particular, the shift away from what was historically considered the standard form of employment, namely, full-time employment of an indefinite duration, under the control of the employer and mostly at the employer's workplace.