Law, Democracy & Development 2021-09-02T13:17:17+00:00 Dr Jamil Mujuzi Open Journal Systems The evolution and implementation of democracy, good governance practices, human rights and socio-economic development are critical issues facing South Africa and Africa as a whole. Law interacts with this process in ways that may promote or inhibit it. <em>Law, Democracy &amp; Development</em> addresses this interaction. Our aim is to create a forum in which critical aspects of the process can be debated by scholars, practitioners as well as those concerned with policy-making across the continent, thus contributing to the development of shared knowledge and cooperative effort. The focus is on:<br />* the way that the law regulates important aspects of the economic process such as trade and industry, labour, the environment, education, training and culture;<br />* the protection and extension of rights which drive and mould socio-economic development such as political rights, gender rights, children's rights, labour rights and other rights which enable the individual to participate in civil society;<br />* the influence of international and regional developments in the areas of policy and law on socio-economic development. Law, Democracy &amp; Development is a peer-reviewed journal and has been accredited by the Department of Education for the publication of subsidised research outputs since 2001. Other websites related to this journal: <a title="" href="" target="_blank"></a> Who are “the people” in the German Constitution? A critique of , and contribution to , the debate about the right of foreigners to vote in multi-level democracies1 2021-09-02T11:30:10+00:00 Jelena Bäumler <p>Democracy means power to the people, but it is not always clear who belongs to “the people”. The question has become pertinent in the age of migration where large groups of foreigners permanently reside outside their countries of nationality. The economic, cultural, and political integration of these foreigners is one of the pressing problems faced by democratic States in both the developed and developing worlds. One question is : whether resident non-citizens should be granted the right to vote. The answer to this question depends on who belongs to “the people”. In federal and quasi-federal States with multiple levels of government the further question arises : whether “the people” is a homogenous concept that applies uniformly across all levels of government. This article contributes to the debate about the right of foreigners to vote in democratic States with multiple levels of government, such as, South Africa and Kenya. It does so by discussing the German response to the problems mentioned above. The dominant view of the German Federal Constitutional Court since the 1990s has been that “the people” only includes “German citizens” , and that attempts by lower levels of government to extend the right to vote to foreigners from Africa and elsewhere are unconstitutional. In this article I explore and critique this conventional view. I then present a positive case for the extension of voting rights to resident non-citizens under the German Constitution. Many of the arguments would apply with equal force to the debate about the right to vote of foreigners in African multi-level democracies, such as, South Africa and Kenya.</p> 2021-09-02T00:00:00+00:00 Copyright (c) Understanding, Protecting, Promoting and Entrenching the Rule of Law – What Individuals, Constitutional Institutions, State Entities and Civil Society must do 2021-09-02T12:56:39+00:00 Justice Mahomed Solomon Navsa <p>The UWC Law Faculty in 2019 celebrated its 40 year existence as an independent faculty. The Law Faculty became an independent faculty on 1 January 1979 when the Faculty of Commerce and Law was divided in two: the Faculty of Economic and Management Sciences and the Faculty of Law. The Dean’s Distinguished Lecture was initiated in 2015, with the following judges as speakers: Moseneke (2015), Pillay (2016), Cameron (2017), and Ngoepe (2018). Justice Mahomed Navsa, who presented the lecture in 2019, obtained the BA (law) degree from UWC in 1978 and the LLB degree in 1980. In his lecture, Justice Navsa emphasised the importance of consolidating the gains of the struggle against apartheid through the establishment of the rule of law. In an age where the Constitution is under attack from many sides, Justice Navsa emphasised the importance of fulfilling the promises of that Constitution, not only by government and public officials, but by each citizen.</p> 2021-09-02T00:00:00+00:00 Copyright (c) Private regulation in the context of international sales contracts 2021-09-02T12:32:21+00:00 Juana Coetzee <p>This article argues that modern international sales law has a hybrid character as it increasingly makes provision for interfaces between public and private, State and non-State, hard and soft , law. Although private forms of regulation are often associated with the lex mercatoria, this article shows that they rarely reflect or constitute mercantile custom or trade usage. However, they often address issues that State law does not. As a result, these forms of regulation have become an effective tool in supply chains, especially in the context of sustainable development. Whether private forms of regulation constitute law is a matter for debate, though. This article concludes that in the context of international sales, private forms of regulation mostly obtain their legitimacy through contract, which “hardens” them into law.</p> <p>&nbsp;</p> 2021-09-02T00:00:00+00:00 Copyright (c) An empirical analysis of class actions in South Africa 2021-09-02T12:19:28+00:00 Theo Broodryk <p>As far as the author is aware, there has not been an empirical analysis of class actions in South Africa since the introduction of the mechanism by the interim Constitution of 1993 more than 25 years ago. There is no publicly available data which provides meaningful empirical insight into the operation of the South African class action. There is consequently much that we do not know about it. This article attempts to examine class actions over a period spanning more than 19 years. The purpose of the article will be to provide, through an analysis of case law, an empirical exposition of class actions instituted in South Africa using the criteria and methodology mentioned below. The study demonstrates that, although there have been only a limited number of certification judgments delivered to date, there has been rapid growth in the number of certification judgments delivered in the past five years. Most of these judgments are aimed at providing access to justice for poor and marginalised individuals. The data presented herein could place South Africa in the fortuitous position of being able to build a comprehensive data archive in which the class action is statistically dissected. Without comprehensive data concerning the operation of the class action, the available information will be insufficient from the perspective of providing adequate insight to enable its optimal development going forward.</p> 2021-09-02T00:00:00+00:00 Copyright (c) An analysis of the duty to reasonably accommodate disabled employees: a comment on <i>Jansen v Legal Aid South Africa</i> 2021-09-02T12:39:25+00:00 Estie Gresse Melvin L.M. Mbao <p>Persons with disabilities are a historically marginalised minority, who have the capacity to make a valuable contribution in the workplace. Recent case law suggests that the duty to reasonably accommodate disabled employees remains a conundrum for employers in South Africa. In Jansen v Legal Aid South Africa (C678/14) [2018] ZALCCT 17 (16 May 2018) the Labour Appeal Court had an opportunity to make a definitive pronouncement on the meaning and reach of the employer’s duty to reasonably accommodate a disabled employee. Even though the duty to reasonably accommodate disabled employees is set out in our legislative and policy frameworks, there is a need to have a more detailed framework. The Constitutional Court is yet to hear a case on the duty of employers to provide reasonable&nbsp; accommodation to employees with disabilities, and until we have such a precedent, more and more employees with disabilities will continue to suffer at the hands of their employers. Both the Code of Good Practice, as well as the Technical Assistance Guidelines ,&nbsp; published by the Department of Labour, have gone “relatively unnoticed and unread” in the workplace. This article argues that employers should follow a broad interpretation of the guidelines contained in the Code, as well as in the Technical Assistance Guidelines. Employers need to undertake proper investigations, with the assistance of experts if needs be, to investigate an employee’s incapacity.</p> 2021-09-02T00:00:00+00:00 Copyright (c) Sustainable development and international economic law in Africa 2021-09-02T12:47:32+00:00 Thabo Fiona Khumalo <p>Sustainable development has been advocated by the developed world as a means to ensure that the most widely beneficial type of development occurs. This has resulted in a body of rules, which though well intended, does not adequately address the developmental needs of developing countries. It has become a source of tension between developing and developed countries. Developing countries fear that it can be used to frustrate their prospects of development. Hence the adoption of sustainable development provisions by African countries has largely been controversial. This article explores the concept of sustainable development and its level of acceptance in&nbsp; international economic law instruments involving African countries. This article argues that African countries should adopt a more intentional position with regards to sustainable development to ensure that each agreement creates an opportunity for economic&nbsp; transformation and sustainability.</p> 2021-09-02T00:00:00+00:00 Copyright (c) Shifting consciousness and challenging power: Women activists and the provision of HIV/AIDS services 2021-09-02T12:52:28+00:00 Shauna Mottiar Vuyiseka Dubula <p>In 2003, the South African government shifted AIDS policy making HIV treatment available in the public healthcare sector. The antiretroviral roll out, while hailed as a success, has required continued activism to ensure genuine implementation. Women particularly the poor, traditionally bear the brunt of the impact of HIV/AIDS socially and economically. Very often they do this in most marginalised spaces. This paper draws on theories of participation and empowerment to understand female activism during the period of antiretroviral roll out in South Africa. The paper seeks to understand how processes of empowerment linked with the first stage – access to ARVs impacted on the second stage - ARV roll out .It also considers how female activists understand their empowerment in the context of their role. The focus is grassroots activism females in Lusikisiki and Khayelitsha. This paper draws from a qualitative study on bottom-up policy advocacy utilising participatory observation and in-depth interviews with activists and civil society organisations. The main findings are that during the roll out phase of the HIV/AIDS campaign women activists worked from transformed “ways of thinking and being” in terms of HIV/AIDS and in terms of their role in the struggle for health rights. Their contesting embedded notions of power contributed to the democratisation of HIV/AIDS services. The transformation also caused shifts in the ways women mobilised, framed their understanding of the struggle and accessed participation spaces.</p> 2021-09-02T00:00:00+00:00 Copyright (c) The incentivisation of inclusionary housing by South African municipalities: a property law perspective 2021-09-02T09:13:39+00:00 Kenneth Wanyama Kulundu Gustav Muller <p>Although it is still in its formative stages, the idea of inclusionary housing in South Africa’s constitutional context is inescapable. The typical characteristic of inclusionary housing is that a developer is required or encouraged to dedicate a specified portion of her housing development project to the provision of affordable housing. This raises concerns about the possible violation of developers’ property rights because it affects their investment backed expectations regarding future earnings. Since municipalities are the chief agents of the implementation of inclusionary housing, it is important to investigate how they can respond effectively to the property related concerns of developers. This article conducts an overview discussion of the concept of property in South African law, with a special focus on how property regulation can be anchored on the “givings” concept. It then explores the legal mechanisms through which municipalities can pay financial incentives to housing developers to ensure the growth of a housing stock that is geared for affordability as well as social and economic integration. We undertake a critique of the current statutes governing local government financial management and illustrate their inadequacy. It is concluded that inclusionary housing can only succeed in South Africa if legal policy recognises the need for financial payments to developers that go beyond mere compensation for excessive regulation of property rights.</p> 2021-09-02T00:00:00+00:00 Copyright (c) Staircase or safety net? Examining the meaning and functioning of RDP house ownership among beneficiaries: a case study of Klapmuts, Stellenbosch 2021-09-02T08:54:13+00:00 Jackie Dugard <p>Recognising the apartheid legacy of in-access to housing and property for the majority of black South Africans, the Constitution entrenches rights of access to housing and property. Since 1994, one of the main ways the government has pursued this mandate has been to roll out an ambitious Reconstruction and Development Programme (RDP) private house ownership programme. The overarching goal of the programme (now called Breaking New Ground or BNG) is to establish “sustainable human settlements” that result in “sustainable development, wealth creation, poverty alleviation and equity”. Speaking to the “wealth creation” and “equity” aspects, a key component of BNG is “ensuring property can be accessed by all as an asset for wealth creation and empowerment”. Thus, BNG is explicitly aimed at addressing inequality through asset formation. Yet, despite the considerable public resources spent on home ownership projects in South Africa, there is little understanding of the subjective meaning accorded to having an RDP house and the extent to which the financial function of private housing, as a wealth-generating asset (the Hernando de Soto “staircase” role), plays out in practice alongside its more poverty alleviation function as providing social security, including shelter (the “safety net” role). To contribute towards a better understanding of the role and value of RDP home ownership, I undertook a qualitative study among 21 beneficiaries of an RDP housing project in Klapmuts (Stellenbosch). The study provides some tentative conclusions regarding the utility and impact of the private ownership paradigm of these State projects.</p> 2021-09-02T00:00:00+00:00 Copyright (c) A human rights based approach to fighting corruption in Uganda and South Africa: shared perspectives and comparative lessons 2021-09-02T09:24:19+00:00 John C. Mubangizi <p>This article focuses on corruption in Uganda and South Africa. It begins with a brief analysis of the effects of corruption on the two countries before looking comparatively at their anti-corruption legal frameworks by analysing the relevant constitutional and legislative anti-corruption provisions. The choice of Uganda and South Africa for comparison is based on several factors. The two countries have much in common. They are both transitional societies with disturbing histories characterised by apartheid, oppression and repression in South Africa , and colonialism and military dictatorships in Uganda. In the mid-1990s, the two countries adopted new constitutions that contained Bills of Rights. Such similarities justify comparison for purposes of shared perspectives, approaches and good practices.&nbsp; Moreover, there are many benefits to be gained from comparative research involving cross-national studies – including a deeper understanding of how different countries do things in the context of differing political, cultural and socio-economic circumstances. The choice of the two countries is also based on the research interests of the author who, besides comparing Ugandan and South African ant-corruption approaches, also calls for a human rights based approach that empowers ordinary people to demand transparency,&nbsp; accountability and responsibility from elected representatives and public officials.</p> 2021-09-02T00:00:00+00:00 Copyright (c) The implications of the decision in<i> Helen Suzman Foundation v Judicial Service Commission</i> 2018 (7) BCLR 763 (CC) 8 on the functioning of the South African Judicial Service Commission 2021-09-02T09:41:48+00:00 Nomthandazo Ntlama <p>The article examines the implications of the judgment of the Constitutional Court in Helen Suzman Foundation v Judicial Service Commission 2018 (7) BCLR 763 (CC) 8 on the functioning of the Judicial Service Commission (JSC). The judgment has brought to the fore a new lease of life relating to the JSC’s post-interview deliberations as a disclosable record in terms of Rule 53(1)(b) of the Uniform Rules of Court. The disclosure seeks to provide an insight into the decision-making process of the JSC in the appointment of judicial officers in South Africa. It is argued that the judgment is two-pronged: first, the disclosure of the post-interview record enhances the culture of justification for decisions taken, which advances the foundational values of the new democratic dispensation; secondly, it creates uncertainty about the future management and protection of the JSC processes in the undertaking of robust debates on the post-interview deliberations. It then questions whether the JSC members will be privileged in their engagement with the suitability of the candidates to be recommended for appointment by the President. The question is raised against the uncertainty about which decision of the JSC will be challenged that will need the disclosure of the record because the judgment does not entail the national disclosure of the record in respect of each candidate but applies only when there is an application for review of the JSC decision.</p> 2021-09-02T00:00:00+00:00 Copyright (c) Nativism in South African municipal indigent policies through a human rights lens 2021-09-02T09:01:46+00:00 Oliver Fuo <p>The dawn of constitutional democracy in South Africa triggered a new wave of immigration into the country. Foreign migrants post-1994 now make up about seven per cent of the country’s population. The majority of the new intake are Africans pursuing economic opportunities, or refugees seeking asylum. The convergence of South African citizens and foreigners, especially in the country’s major cities, generates competition over space and limited social welfare services which at times degenerates into conflicts with dire consequences. Some South African Ministers and local government leaders have resorted to a nativistic discourse to address competition over limited welfare services and to shield themselves for the failures of the State to achieve the large-scale egalitarian transformation envisaged by the Constitution of the Republic of South Africa, 1996. This article uses local government indigent policies to show how several South African municipalities use citizenship as a mandatory condition for accessing free basic services, and discusses how the institutionalised blanket exclusion of foreigners from accessing these services violates the obligation of non-discrimation which is protected in international and South African human rights law. Against the backdrop of the government’s socio-economic rights obligations, this article argues that it is necessary for some municipal indigent policies to be amended to at least cater for the basic needs of indigent foreigners with a permanent residence permit and those with official refugee status in South Africa. It is argued that the blanket exclusion of these categories of destitute non-citizens without consideration of their immigration status fails to distinguish between those who have become part of South African society and have made their homes in the country and those who are in South Africa on a transient basis.</p> 2021-09-02T00:00:00+00:00 Copyright (c) What happens on the beach stays on the beach: A speculative legal analysis of nudism in South African protected areas 2021-09-02T08:44:02+00:00 Andrew Blackmore <p>The Hibiscus Coast Municipality assumed it had the authority to issue or amend by-laws to formalise an existing nudist friendly beach within the Mpenjati Nature Reserve. Following a complaint, the Public Protector concluded the same when she investigated the legality of the Municipality’s actions. Two immediate questions arise. The first, whether the Municipality and the Public Protector were correct in their view that the Municipality has the authority over the beach irrespective of the presence of a protected area, and the second, whether nudism is a legal activity therein. Both the Municipality and the Public Protector overlooked the relevance of the nudist friendly beach being located within a protected area and the power of the management authority to determine the nature of the tourism that takes place therein. Nudism within a protected area appears not to be in conflict with the Sexual Offences Act 23 of 1969 and hence may be a legitimate activity within such area. The National Environmental Management: Protected Areas Act 57 of 2003 and the Regulations&nbsp; thereunder appear not to contain provisions that prohibit nudism or other niche nature based tourism activities. Provided that the activity conforms to the purpose of the Act and proteced area management plan and zonation and does not pose a significant physical risk to the integrity of the protected area, the conservation agency may be hard-pressed to refuse a request for a niche nature based tourism activity, such as nudism, to be included in the zonation – should one be received. </p> 2021-09-02T00:00:00+00:00 Copyright (c) Are courts going out of their way to accommodate RACISTS? A critique of South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others 2021-09-02T09:34:16+00:00 Thulani Nkosi Neo Mahlako <p>The article critically examines the way in which the Constitutional Court dealt with the issue of racism in South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and others 2017 (1) SA 549 (CC). Invoking general legal principles blended with critical race theory, we show that the apex court erred in finding that an employee who had racially abused his superior by referring to him as a kaffir needed to be compensated for a dismissal that arose from such racial abuse. We show that even with a finding that the dismissal was procedurally unfair, existing legal principles, racial justice and social transformation imperatives negated the court making a finding that compensation was due to the employee. The racism involved was so vile and brazen that a compensation award was not only inappropriate in the circumstances but had the consequence of sending a wrong message to the general public, black people in particular, that the law and the courts are still tolerant of racists and racism. Ordinary black people are likely to read the judgment as the law rewarding racists for being racist. The article calls upon the courts to take racism and the racial oppression of black people seriously by acting firmly against those found guilty of racial abuse.</p> 2021-09-02T00:00:00+00:00 Copyright (c) The implications of the Public Protector’s remedial action directing the exercise of discretionary constitutional powers: separation of powers implications 2021-09-02T11:19:06+00:00 Bradley V. Slade <p>This article considers the judgments of the North Gauteng High Court in which the remedial action of the Public Protector was reviewed. In President of the RSA v Public Protector, delivered in 2018, the Court upheld the remedial action directing the President to appoint a commission of inquiry without having regard to the separation of powers doctrine. The decision stands in contrast to an earlier decision (SARB v Public Protector) and a later decision (RSA v Public Protector) where the Court set aside the remedial action of the Public Protector that also purported to direct the exercise of discretionary constitutional powers. In these cases, the remedial action was set aside after proper regard was had to the separation of powers doctrine. This article therefore considers these diverging approaches where the court reviews the remedial action of the Public Protector directing the exercise of discretionary constitutional powers. It considers the effects of not consistently having regard to the separation of powers doctrine in reviewing the remedial action of the Public Protector. It is argued that the inconsistent invocation of this doctrine leads to legal uncertainty specifically in relation to the exercise of the President’s discretionary constitutional power as head of state to appoint a commission of inquiry. Furthermore, the article considers the effect the failure to review the Public Protector’s remedial action consistently from a separation of powers perspective may have on the Public Protector’s ability to adequately fulfil the mandate of strengthening constitutional democracy.</p> 2021-09-02T00:00:00+00:00 Copyright (c) When do you call time on a compromise? South Africa’s d iscourse on transformation and the future of transformative c onstitutionalism 2021-09-02T09:44:57+00:00 Sanele Sibanda <p>The main thrust of this article is to advance a critique of South Africa’s embrace of the grammar of transformation after the official demise of colonial-apartheid, in particular how this grammar has been deployed in a totalising fashion as it is held out to be definitive of the processes, measures and goals of change under the 1996 Constitution. In performing this critique, it is argued that transformation’s ability to find wide and enduring resonance has had much to do with its emergence as a transitional site of compromise that allowed erstwhile political and ideological adversaries to navigate a complex social and political transition. A quarter of a century after the moment of transition, this article interrogates South Africa’s continuing investment in this idea of transformation and addresses the implications of its continuing dominance in how South Africa constitutes itself and navigates self-understanding. In essence, the article argues that whilst the imperative of constitutional transformation may have formed around a common commitment to constitutional rights and values, its lived manifestation in what has emerged as the hegemonic discourse of transformative constitutionalism with its bias for adjudication driven social change has negated any pretensions it may have projected of being an emancipatory discourse directed at disrupting and undoing the multiple pernicious legacies colonial-apartheid.</p> 2021-09-02T00:00:00+00:00 Copyright (c) South African municipalities in financial distress: what can be done? 2021-09-02T09:07:10+00:00 Matthew D. Glasser Johandri Wright <p>South African municipalities have been faced with financial distress for some years. In some municipalities, financial distress has intensified to the extent that local government faces a "collapse”. On the other hand, many municipalities have been in reasonably good financial shape, at least until the recent pandemic. The information National Treasury publishes can help to identify cases of real concern. The primary responsibility to address municipal financial problems lies with the municipality, but other parties also have a role to play. Financial problems have different causes and will differ in severity. Consequently, different tools are appropriate, depending on the cause, severity and aggrieved party. These tools include discretionary and mandatory financial recovery plans, debt relief and restructuring. Where a municipal financial crisis amounts to a disaster, further tools can come into play. We hope that this exploration of legal remedies will stimulate greater action to resolve financial problems in municipalities. This article addresses situations where a municipality is already faced with financial distress , and does not delve into measures aimed at preventing municipal financial distress.1</p> 2021-09-02T00:00:00+00:00 Copyright (c) The High Court of Malawi as a constitutional court: constitutional adjudication the Malawian way 2021-09-02T09:28:19+00:00 Mzwiza Jo Nkhata <p>Constitutional adjudication in Malawi only became commonplace after the adoption of a new Constitution in 1994. Like many Anglophone countries, Malawi follows the decentralised model of constitutional adjudication. Under this arrangement, the High Court has unlimited original jurisdiction to hear any civil or criminal matters, including constitutional matters. The Courts Act, however, requires the High Court to sit with an enhanced quorum when it is seized of cases that substantively relate to, or concern the interpretation and application of the Constitution. It is when the High Court sits with a reconfigured quorum that it is popularly referred to as the “constitutional court” (the Court). This article analyses constitutional adjudication in Malawi by focusing on the operation of the Court. Specifically, it analyses the scope of the Court’s jurisdiction, the type of constitutional review that it conducts, the regulation of access to the Court, the forms of decisions and remedies that it grants, and the Court’s independence.</p> 2021-09-02T00:00:00+00:00 Copyright (c) eThekwini’s discriminatory by-laws: criminalising homelessness 2021-09-02T12:43:53+00:00 Willene Holness <p>The eThekwini Municipality’s Nuisances and Behaviour in Public Places By-Laws of 2015, and the Beaches By-Laws of 2015, seek to regulate and prohibit some of the life-sustaining activities of homeless persons in the city through petty offences. The article considers whether these measures indirectly discriminate against homeless persons, disproportionately impact on them, are contrary to the rule of law, and are an irrational extension of local government powers to develop and maintain law and order within municipal boundaries. Marius Pieterse’s concept of the “right to the city” is relied on to explain why immediate implementation of an adequate and sustainable policy and plan that will give teeth to the local government’s developmental mandate for the homeless, is needed. Lessons learned from advocacy and litigation by other marginalised groups, such as, sex workers and informal traders, are outlined. A short review of recent developments, including litigation, advocacy and local government approaches to homelessness in South Africa, including during the COVID-19 era, is provided. The repeal of the by-laws that effectively criminalise poverty and homelessness is called for.</p> 2021-09-02T00:00:00+00:00 Copyright (c)