Law, Democracy & Development

“Public health emergency declarations” in the Ethiopian federal system: understanding the scope of state and federal emergency declarations and authorities

Yidnekachew Mitiku Mekone — 2023-04-12

Infectious agents posing a human security threat have been recorded throughout history. Today, COVID-19 poses a serious human security threat in the world, forcing governments to take extraordinary measures. Extraordinary measures, such as declarations of a state of emergency, basically determine the legal and operational resources available to respond to an emergency. Hence, it has implications for governments, the private sector and the general public. The legal authority of the state of emergency declarations during public health crises in federal countries basically relies on the emergency powers vested in the levels of government. Understanding the scope of state and federal emergency declarations and authorities and how they interact is, therefore, an important part of preparing for, and responding to, “public health emergencies”. This article, through a detailed examination of relevant laws and other countries’ experiences, attempts to shed light on the “public health emergency declaration” in Ethiopia with a particular focus on understanding the scope of state and federal emergency declarations and authorities.

Black economic empowerment in South Africa: Is transformation of the management structures of enterprises as essential as it should be?

Jeannine van de Rheede — 2023-04-12

Black Economic Empowerment (BEE) was launched as an integrated policy initiative to empower black people and redistribute wealth across the spectrum of South Africa’s population. The Broad Based Black Economic Empowerment Act 53 of 2003, as amended in 2013, was enacted to correct the imbalances of apartheid and promote transformation of the economy. The Codes of Good Practice adopted in terms of the Act were promulgated to provide a standard by which the BEE rating of enterprises can be calculated. BEE ratings are important to enterprises since enterprises use them to attract and retain clients: the higher an enterprise’s BEE rating, the more it is likely to benefit financially. It is for this reason that it is in most enterprises’ interests to have a good BEE rating. The BEE rating of an enterprise is calculated by using the rules and formulae in the Codes of Good Practice. However, despite the objectives of the Act, enterprises are able to obtain good BEE ratings even where a low percentage of black people form part of their management structures. It is important to determine how this is possible. This article exposes shortcomings in the existing BEE legal framework that make it possible for enterprises to obtain good BEE ratings under such circumstances.

“Dreams and aspirations deferred?”: The Constitutional Court’s approach to the fulfilment of socio-economic rights in the Constitution

Justice Steven Majiedt — 2023-04-12

The Dean’s Distinguished Lectures were initiated in 2015, with the following judges as speakers: Dikgang Moseneke (2015), Navi Pillay (2016), Edwin Cameron (2017), Bernard Ngoepe (2018) and Mahomed Navsa (2019). The onslaught of COVID-19 brought with it a temporary interruption to the Dean’s Distinguished Lectures. Justice Steven Majiedt, who presented the lecture in 2022, obtained the BA (law) and LLB degree from UWC in 1981 and 1983 respectively. In his lecture, Justice Majiedt emphasised the important role played by the Constitutional Court as apex court in giving effect to the fulfilment of socioeconomic rights. The deferential path adopted by the court when adjudicating socioeconomic rights issues was highlighted with reference to a reluctance to define minimum core obligations and an abiding recognition of the duty imposed upon the state in the progressive realisation of such rights that has been subsumed in the principle of reasonableness.

Examining the interpretation of section 115(2)(a) of the Companies Act of 2008

Simphiwe Bidie — 2023-04-12

For the purposes of protecting the rights and interests of shareholders, section 115(2)(a) of the Companies Act 71 of 2008 is imperative and essential. The section and its concomitant provisions are beginning to find their footing before South African courts. One of the occasions when the imperative nature of the section is seen is when directors take part in decision-making where companies intend to enter into share buy-back schemes of arrangement. In that respect, the clarity and precision of the section has so far received limited scrutiny. To compound matters, even before the role shareholders are expected to play has been thoroughly scrutinised, the sections relating to shareholders’ exercise of power are currently the subject of a proposed repeal. Fortunately, recent judgments have begun to provide insight into the interpretation of section 115(2)(a), and the same can be said with respect to similar sections from other jurisdictions. This contribution examines these latter sections. It chiefly shows that the judgments consulted regard shareholder protection, not as a straight-jacket; the protection has its pitfalls. Meritoriously, it shows how courts interpret section 115(2)(a) to protect shareholders from the pitfalls by promoting/advancing shareholder protection. The judgments also speak with one voice in their interpretation of provisions aimed at maintaining the necessary balance between the rights and interests of company stakeholders. Essentially, the judgments admirably show that the process of finding that balance is a delicate exercise.

The role of the African Charter on Values and Principles of Public Service and Administration in promoting good governance

Paul Mudau — 2023-04-12

This article critically analyses the provisions of the African Charter on Values and Principles of Public Service and Administration from an interdisciplinary standpoint of law and public administration. It assesses the Charter’s substance and its potential role in the promotion of good governance in Africa, subject to internationally accepted standards for good governance. Central to this approach is identifying probable legal, institutional and structural shortcomings, thus helping to set out useful guidelines required in facilitating the effective application and implementation of the Charter. Since there is a lack of track records and benchmarks concerning the Charter, the article seeks to give it substance and prominence. It aims to establish that the Charter can play a catalytic role in the promotion of good governance by requiring political commitment to the rule of law, effective implementation of state policy, enforcement of professional ethics, and adherence to sound ethical standards by public service agents. The envisioned public service governance should be an accountable and effective public administration that is based on a functional legal framework, efficient regulatory structures, and transparent systems for financial and legal accountability.

The role of intellectual property rights’ protection in advancing development in South Africa

Talkmore Chidede — 2023-04-12

Notwithstanding some debate, intellectual property remains a necessary tool for social, cultural, economic, and technological development in the 21st century. In this century, the global economy is driven by knowledge and technology, and the market is increasingly recognising intellectual property as a valuable commercial asset and a force for technological innovation. South Africa, among other countries, recognises the role of intellectual property rights in several policy measures related to development, trade, and industrialisation. This article seeks to highlight the significant role of intellectual property rights protection in advancing social, economic, technological, and cultural development in South Africa.

Regional integration in Africa: Proposals for an Africa-wide payment system

Ogochukwu Monye — 2023-04-12

Regional integration remains a priority in Africa. Fuelled by the call of PanAfrican leaders including Kwame Nkrumah and the recognition of the potential within the continent to transform intra-African trade and achieve global competitiveness, the Africa Continental Free Trade Agreement (AfCFTA) was conceived. The African Union, in collaboration with the Africa Export-Import Bank (AFREXIM), has accordingly proposed the Pan-African Payment Settlement System (PAPSS). This system is expected to facilitate crossborder financial flows in local currencies and in real-time across the region, address the multiplicity and inconvertibility of currencies, reduce transaction costs, and decrease the use of correspondent banks. The authors analyse the necessity of getting this system right, alluding to the theory of developmental regionalism. The article concludes with recommendations that could make this unified payment system formidable enough to enable direct and seamless transactions between Amari in Addis and Wale in Lagos.

Fiscal incentives in Kenya’s free zones: To what extent are they consistent with the WTO rules on subsidies?

Olufemi Oluyeju — 2023-04-12

In Kenya, free zones take the form of Special Economic Zones (SEZs) and Export Processing Zones (EPZs) and are offered a myriad of fiscal and non-fiscal incentives. At the same time, Kenya, as a member of the World Trade Organization (WTO), is a signatory to the Agreement on Subsidies and Countervailing Measures (ASCM), which prohibits subsidies that are contingent on export performance or use of domestic over imported products. Although free zones are not mentioned specifically, fiscal incentives constitute subsidies since they are financial contributions, incomes or price supports given by the government or their agencies which confer benefits. In this regard, the article examines whether the fiscal incentives offered in Kenya’s free zones meet the specificity test and are therefore consistent with the provisions on prohibited and actionable subsidies under the ASCM. The conclusion is that though the fiscal incentives offered in Kenya’s free zones constitute financial contributions, they meet the specificity test and are consistent with ASCM rules on subsidies contingent on export performance and use of domestic over imported products, given that Kenya is allowed to grant export subsidies and none of the subsidies offered under the EPZs Act and SEZs Act require the use of domestic over imported products.

Reconceptualising sovereign debt in international law

Muhammad Bello — 2023-04-12

Recurring debt crises and innovations in the sovereign debt landscape over the past couple of decades have rekindled interest in the nature and forms of sovereign debt. There are multiple outlets for contracting loans, all with different policies, principles and procedures. For instance, resource-backed loans have provided an additional option for resource-rich countries in Africa and Latin America to support their quest for infrastructural development. However, these and other innovations in sovereign financing may affect the dominant understanding and dynamics of sovereign debt governance. The silence of the literature on the place of development in the conceptualisation of sovereign debt is striking. Therefore, using doctrinal methodology, this article proposes a reconceptualization of sovereign debt to reflect these innovations, gaps, and emerging trends. It is argued that sovereign financing needs a theoretical underpinning linked to the objective of development. This article proposes a distinction between development-driven and non- development-driven sovereign debt. It is argued that a development-based conception of sovereign debt would make the recurring legitimacy issues surrounding the character of the sovereign relevant and more reflective of contemporary changes in the practice of sovereign financing.

Rising from its ruins? The Southern African Development Community (SADC) Tribunal

Tapiwa Shumba — 2023-04-12

The Tribunal of the Southern African Development Community (SADC) was established to ensure adherence to and the proper interpretation of the provisions of the SADC Treaty and its subsidiary instruments, and to adjudicate upon such disputes as might be referred to it. However, since its establishment, it has had a troubled history. After the rulings it made against the Government of Zimbabwe in the landmark Campbell land seizures case, the Tribunal’s operations were unceremoniously suspended. This was followed by a process to revise its mandate, one that ultimately condemned it to paralysis and ruin. The new 2014 Protocol on the Tribunal, meant to revise the mandate of the Tribunal to confine it to hearing disputes involving states only, has been criticised as an attempt to undermine the rule of law and human rights in the region. Since the adoption of this 2014 Protocol by the SADC Summit, stakeholders have mobilised regionally to resist its ratification by member states. In particular, lawyers in SADC countries are embarking on legal petitions to reverse the Protocol and promote the revival of the Tribunal in terms of its old mandate. So far, there have been victories in these cases in two influential SADC member states, South Africa and Tanzania. However, it remains important to assess the significance of these developments. As such, the article raises the question: Is the Tribunal rising from its ruins?

Different cities, different propertytax-rate regimes: Is it fair in an open and democratic society?

Fanie Van Zyl — 2023-04-12

Differentiation does not automatically mean that a person’s right to equality has been infringed on. Thus, the mere fact that taxpayers are subject to different property tax rates in South Africa depending on the municipality in which the property falls does not necessarily result in an infringement of section 9 of the Constitution: a specific analysis is required in order to determine the constitutionality thereof. In this article, we examine whether the different rates applicable to properties based on where the property is situated are constitutionally sound vis-à-vis the right to equality. In order to do so, we compare the property tax rates and rebates that apply in respect of residential property in the capital cities of the nine provinces in South Africa. The first part of the article considers the general approach adopted by the courts in establishing whether section 9 of the Constitution has been violated. The second part discusses the legislative framework of property tax, after which the equality enquiry is conducted on the differentiation that occurs in regard to property situated in different municipalities. Lastly, we offer some recommendations in our closing remarks.

Confronting past atrocities: A critical analysis of the defunct Ethiopian Reconciliation Commission

Moges Zewiddu Teshome — 2023-04-12

This article examines the rationale for the establishment of the defunct Ethiopian Reconciliation Commission (the Commission) and the challenges it faced in its efforts to help end impunity, restore the ruptured social fabric, and ensure democratic transition. To this end, the article relies on analysis of relevant literature, comparative case studies, and interviews with experts. Ethiopia is a deeply divided society, one characterised by ethnic division, cycles of violence, a pervasive culture of impunity for heinous crimes, competing historical narratives, and polarised political discourse. The Commission was bestowed with ambitious mandates and functions. Among its formidable challenges were a legitimacy deficit; the prevalence of competing narratives; vaguely defined mandates; and the complexity of the reconciliation process. Ultimately, the Commission failed to deliver on any of its promises.

An overview of categories of vulnerability among on-demand workers in the gig economy (Part 1)

Dina Maria (Denine) Smit — 2023-04-12

The gig economy has given rise to new forms of work that fall outside the domain of traditional employment. In most jurisdictions, the status of the work performer needs to fall within the traditional definition of “employee” to guarantee labour law protection and social security, as well as to allow for collective bargaining. In the digital era, and particularly in a socially distanced world that increasingly uses online services, platforms such as Uber and DoorDash are established providers of work. Yet their very structure renders their service providers extremely vulnerable. In the 21st century, capital seemingly seeks to return to basics by paying strictly only for services delivered and passing the bulk of risk to workers on these platforms. This contribution aims to add to a growing body of evidence on gig work, and gives an overview of categories of vulnerability among on-demand workers, without focusing on the classification issue. This article is in two parts. Part 1 focuses on the need for job creation in the Fourth Industrial Revolution and the potential of the gig economy to curb unemployment, particularly among the youth. A brief overview of the different industrial revolutions to date creates the backdrop for an in-depth look at the gig economy and platform work. The focus then shifts to the vulnerability created by the peculiar relationship between the three parties involved in on-demand work. This leads to a discussion in part 2 of worker vulnerability, the legal position of platform work, and the suggested way forward, drawing on International Labour Organization and European Union instruments, with a strong focus on South Africa, without resolving classification issues

From precarity to pandemic: How the Covid-19 pandemic has exacerbated poverty, unemployment, and inequality in South Africa

William Manga Mokofe — 2023-04-12

The pre-Covid-19 world of work was rife with inequalities and difficulties, with more than 40 per cent of working-age South Africans unemployed. The majority of those in employment were barely able to eke out a living – between 20 per cent to 30 per cent were working in the informal economy,1 mostly without labour rights and social protection and earning low incomes that trapped them in poverty. The precarious nature of the South African labour market before the Covid-19 pandemic was characterised by casualisation, informalisation, and externalisation of work. This resulted in the reduction of the number of workers employed for definite periods and rising levels of precarious workers. This article investigates the precarious nature of work and the various work paradigms present in the South African labour market before the Covid-19 pandemic struck. New challenges arising from the Covid-19 pandemic and new forms of work in the South African labour market are also considered, together with measures taken to address precarity.