Law, Democracy & Development - Volume 8, Issue 1, 2004
Volumes & issues
Volume 8, Issue 1, 2004
Source: Law, Democracy & Development 8, pp VII –XXIV (2004)More Less
The first six papers in this number of the Law, Democracy and Development are a selection from papers presumed at an inter-university colloquium hosted by the Faculty of Law of the University of the Western Cape in Cape Town on 13 to 15 August 2003. A further two selected papers will be published in the next (2004(2)) issue of this Journal. The colloquium, titled "The Aix-UWC Colloquium on the Regional Realisation of Socio-economic Rights - A European and Southern African Perspective", represented the culmination of a similarly named joint research project between two teams of researchers from the Faculties of Law of the Universities of the Western Cape (South Africa) and Paul Cézanne (France). The project coordinators, who are also the editors of this issue, were Tobias van Reenen (Western Cape) and Jean-Yves Chérot (Paul Cézanne).
A new beginning? The enforcement of social, economic and cultural rights under the African Charter on Human and Peoples' RightsAuthor Pierre De VosSource: Law, Democracy & Development 8, pp 1 –24 (2004)More Less
In this article l focus on one such group - social and economic rights - but in a way that rejects the traditional distinction between the various kinds of rights and embraces an understanding of the rights in the Charter as being truly interdependent and indivisible. I argue that the Charter is unique amongst regional human rights instruments in that it makes no distinction between various kinds of rights, and that the scope and content of these rights should therefore be interpreted in a way that makes sense for all the rights contained in the document. Although I therefore focus on social and economic rights, l do so with reference to all rights contained in the Charter.
Trade liberalisation as facilitated through trade agreements within the Southern African region : an instrument in the realisation of socio-economic rightsAuthor Patricia Michelle LenaghanSource: Law, Democracy & Development 8, pp 25 –58 (2004)More Less
Section 27 of the South African Constitution guarantees everyone the right to have access to social security. The state is compelled to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. Consequently the realisation of socio-economic rights is intrinsically bound to the availability of these resources. Within the regional context of the Southern African Development Community (SADC), advantageous commercial considerations form the cornerstone of many of the bilateral and multilateral agreements that on a regional or individual basis have been entered into by member states of SADC. These agreements embody not only provisions of trade liberalization, but also are indicative of a realisation of the multifaceted approach that economic growth requires. The aim of this paper is to explore whether the various bilateral and multilateral trade agreements that currently exist have, through successful implementation, enhanced the accessibility of resources as a direct consequence of the economic growth that could possibly result from these agreements. In addition to this, the aims of the various bilateral and multilateral trade agreements will be analysed in an attempt to appreciate the extent to which the advancement of socio-economic rights is portrayed as a principal objective of these agreements.
Author Marle-Pierre LanfranchiSource: Law, Democracy & Development 8, pp 47 –58 (2004)More Less
The co-ordination of social security rights in Southern Africa : comparisons with (and possible lessons to be learnt from) the European experienceAuthor Kitty MalherbeSource: Law, Democracy & Development 8, pp 59 –84 (2004)More Less
Sub-Saharan Africa is regarded as one of the poorest regions in the world and the number of very poor people has been increasing steadily since 1993. Social security measures are widely regarded as one of the more important poverty alleviation tools, therefore any endeavours to improve the quality of lives of the peoples of the region should take social security structures into account.
Author Darcy Du ToitSource: Law, Democracy & Development 8, pp 85 –118 (2004)More Less
This article deals with some of the implications, from an employee's point of view, of the transfer of the transfer of a business. The Labour Relations Act, following European precedent, provides for the transfer of employees contractual and other employment rights from the old to the new employer if a business is transferred as a "going concern". In addition, the Constitution provides for the horizontal application of fundamental rights, thus creating scope for the enforcement of socio-economic rights as between employer and employee Employment benefits, it will be argued, fall into this category.
Author Laurence GaySource: Law, Democracy & Development 8, pp 119 –137 (2004)More Less
If current national and international declarations on human rights tend to recognise a "right to housing", the exact meaning of such provisions remains a controversial issue. In France, the Constitution of 1958 does not proclaim such a right. The constitutional judge considers "the possibility for any person of having decent housing" as "an objective of constitutional value". However, this norm is mostly interpreted as a goal of general interest. It gives a basis to public intervention aimed at building social housing, but also aimed at acting on the private market of housing (especially by regulating leasing agreements.
Legitimacy and interpretation in Ghanaian law : the literal interpretation theory versus the value-based interpretation theoryAuthor Kwadwo B. MensahSource: Law, Democracy & Development 8, pp 139 –156 (2004)More Less
What should the courts do when they are called upon to interpret important documents, such as statutes and constitutions? Should they interpret them literally - using the words of the document alone, even when a literal interpretation leads to unjust results or arbitrary consequences? Or should interpretation necessarily involve protecting and promoting certain background political and moral values - values that are cherished in Ghanaian or African society? We shall call the problem raised here the problem of Interpretation.