Law, Democracy & Development - Volume 8, Issue 2, 2004
Volumes & issues
Volume 8, Issue 2, 2004
Source: Law, Democracy & Development 8, pp VII –XIV (2004)More Less
Once again, socio-economic rights are centre-stage in this issue of Law, Democracy and Development. This should not be seen as coincidental. The fact that the same theme has dominated four of LDD's last five issues reflects the crucial importance of the area encompassed by these rights at the present stage in South Africa's transition. Not to put too fine a point on it: social inequality in our country embodies a crisis of national proportions. No society can hope for enduring stability, let alone growth. if large numbers of its citizens are consigned to poverty and illiteracy while a small minority enjoy extremes of wealth.
Author Nico SteytlerSource: Law, Democracy & Development 8, pp 157 –180 (2004)More Less
The socio-economic rights in the Bill of Rights bind all organs of state, including municipalities. These rights may also impose positive obligations. Through the delivery of basic services, municipalities fulfil some of these obligations; indeed, the very purpose of municipalities is to be 'developmental'. Municipalities usually provide these services themselves but they may also use external service providers, including the private sector. National government policy also encourages municipalities to privatise their services and municipalities are increasingly doing so.
Author Danwood Mzikenge ChirwaSource: Law, Democracy & Development 8, pp 181 –206 (2004)More Less
Several studies of privatisation have been conducted but have rarely done so from a human rights perspective. The implications of human rights, especially socio-economic rights, for privatisation of basic municipal services therefore remain under-researched. This article seeks to explore this question in the South African context. The focus will be on water privatisation. The point of departure is that the provision of water services is directly connected to the enjoyment of the right of access to water, which is expressly recognised by the South African Constitution as a justifiable right. It follows that water services delivery mechanisms and policies must be structured in terms of human rights principles. The article begins by briefly providing the context in which water privatisation in South Africa is occurring. Then the concept of privatisation is defined. It is argued that this term encompasses many forms of private-sector involvement in service delivery over and above full divestiture. This is followed by a discussion of the key constitutional principles relevant to privatisation of basic services such as water. The last part deals with some of the specific human rights concerns as raised by privatisation generally, and as revealed by experience in South Africa.
Monitoring the implementation of socio-economic rights in South Africa : some lessons from the international communityAuthor Nomthandazo NtlamaSource: Law, Democracy & Development 8, pp 207 –220 (2004)More Less
The real test for commitment to human rights norms lies in the mechanisms that are put in place for their enforcement. In order to ensure that socio-economic rights do not end up as mere paper rights, the progress made in realising these rights must be closely monitored. Monitoring must be designed to give a detailed overview of the existing situation, The principal value of such an overview is to enable the people to determine how government has performed in respect of the implementation of human rights, including socio-economic rights.
The implication of socio-economic rights jurisprudence for government planning and budgeting : the case of children's socio-economic rightsAuthor Kenneth CreamerSource: Law, Democracy & Development 8, pp 221 –233 (2004)More Less
Given the entrenchment of socio-economic rights in South Africa's constitution, jurisprudential development and discussions on government's obligations with regard to the realisation of socio-economic rights should provide important guidance to the development of social policy. In particular the budget process, as a key instrument of government planning and implementation, should involve the active application of evolving interpretations of government's socio-economic rights obligations.
The right of access to land and its implementation in Southern Africa : a comparative study of South Africa and Zimbabwe land reform laws and programmesAuthor Sam RugegeSource: Law, Democracy & Development 8, pp 235 –265 (2004)More Less
South Africa and Zimbabwe share a common history of colonisation and land dispossession that resulted in the bulk of the agricultural land being owned by a minority settler group. In both countries the colonial state confined the indigenous African people to reserves consisting largely of barren land or areas with poor rainfall patterns while the more fertile land was allocated to white settlers for commercial agriculture. The struggle for liberation from colonial and apartheid domination in South Africa and from colonial and minority rule in Zimbabwe was partly based on the objective of regaining the land.
An exploration of mata'a maintenance in anticipation of the recognition of Muslim marriages in South Africa : (re-)opening a veritable Pandora's box?Source: Law, Democracy & Development 8, pp 267 –288 (2004)More Less
In Muslim personal law, the husband on pronouncing a divorce has a number of legal obligations towards his wife, including maintenance and payment of outstanding dower. While there is no dispute among Muslim scholars and jurists that a wife's right to maintenance (nafaqa) arises upon marriage as a natural consequence of it, there is no unanimity as to whether this right is extendable after the marriage ends. The position may also vary depending on the circumstances leading to the dissolution and the financial situation of the spouses.
Defining the parameters of employment : the position of the company shareholder and close corporation memberAuthor Craig BoschSource: Law, Democracy & Development 8, pp 289 –299 (2004)More Less
Only 'employees' within the legislative definition stand to benefit from the protective provisions or labour legislation relating to unfair dismissal, unfair labour practices, unfair discrimination, minimum conditions of employment etc. Most employers are therefore aware of the importance of distinguishing between employees and other types of workers.