Southern African Public Law

Publisher:
Sabinet African Journals
Publication date:
2021-07-20
ISBN:
2219-6412

Description:

SAPL aims to provide academics and intellectuals from Southern Africa and Africa in general a forum for discursive deliberation and debate on matters relating to public law. The journal welcomes contributions dealing with topics in constitutional and administrative law, legal philosophy, legal and constitutional theory, law and government law and closely related fields. The journal encourages a multi-, inter-, and transdisciplinary approach to these various facets of public law. The journal also welcomes book reviews on topical subjects in the field of public law.

This journal continues SA Publiekreg = SA Public Law.

Issue Number

Latest documents

  • Legal Interpretative Culture and Judicial Stewardship of the Transformation Project in South Africa

    The South African Constitution is a transformative instrument supporting actionable socio-economic rights to achieve social justice—that is, justice in terms of the distribution of wealth, opportunities and privileges within society. Social justice is the recognition that all South Africans are fellow heirs, members of the same nation, sharing the same promises. South Africa is actively engaged in an agenda of reform to address the inherited and prevailing social and economic structures that perpetuate inequality. The nation’s commitment to transformation demands that the legal interpretative culture of judges align with the ‘constitutional interpretative intent’ expressed in the Bill of Rights, which is to respect, protect and promote the fulfilment of socio-economic rights and, in so doing, advance social justice through the application of the law. This article highlights how judicial passivity undermines the Constitution’s interpretative intent and jeopardises the transformation project for social justice. It argues that South African courts must apply interpretations that are constitutionally valid, and where multiple interpretations are possible, they must choose the interpretation that best promotes the spirit, purports and objects of the rights contained in the Bill of Rights. Further, the success of the transformative project depends on judges adopting a stewardship attitude—one that reflects a broader understanding of the constitutional enterprise as a whole. An attitude of judicial stewardship towards the transformation project is of critical importance for the generational progress of all South Africans, especially when a statute has been enacted to effect systemic and structural change within society. This article critically analyses South African courts’ interpretation of section 25 of the National Water Act to illustrate the implications of judicial passivity on the transformation project and the equitable distribution of resources.

  • Roadblocks to Education: The Toll of the Taxi Strikes

    This article examines the impact of a recent protest by the South African National Taxi Council in the Western Cape, which escalated into violence and disrupted various aspects of daily life, including school attendance. Focusing on the constitutional right to education enshrined in section 29 of the Constitution of the Republic of South Africa, 1996 (the Constitution), and the interrelated concept of a child’s best interests in section 28 of the Constitution, the article delves into the intricate interplay between the rights to strike and education. The protest’s repercussions on the right to education, especially in the context of a society still grappling with the historical injustices of the past, highlights the complexity of striking a balance between these rights.

  • An Eviction, but may Different Considerations Apply in Future Cases? A Comment on Pieterse v Drumearn (Pty) Ltd

    The Extension of Security of Tenure Act 62 of 1997 (ESTA) regulates the eviction of vulnerable occupiers from land in a fair manner. It also recognises the right of owners to apply to court for an eviction order in appropriate circumstances. However, ESTA does not set out procedural or substantive requirements when relocations are at stake. Instead, the practices and approaches have been developed by way of case law. Recently, the Land Claims Court (LCC) in Pieterse v Drumearn (Pty) Ltd had to decide whether a relocation of a long-term occupier from one house to another, which is situated on land belonging to two different entities, but with distinct cadastral descriptions, constituted an eviction under ESTA. The LCC found that a relocation from one land to the other was an eviction. Although the case note accepts that an eviction or a relocation would technically depend on the cadastral description of the property involved, it is argued that it should not be the only determining factor. The court should also consider who the registered owner of the land is to allow a relocation where two registered parcels of land belong to the same person or entity.

  • The Right to Development: The Missing Link in the South African Constitutional Order After 30 Years of Democracy

    The aim of this article is to explore the extent to which the silence on the Right to Development (RTD) in the South African Constitution represents a critically missing link in the country’s constitutional framework after 30 years of democracy. To this end, the article examines the implications of this silence in three key areas: its consistency or lack thereof with the African Charter on Human and People’s Rights, its implications for the Africanness of the Constitution, and its effect on addressing the issues of poverty, social justice, and inclusion within a single constitutional provision. Ultimately, the article establishes that the silence on the RTD is detrimental to the country’s constitutional order after 30 years of democracy. While the article has its focus on the South African legal landscape, it is, however, hoped that the findings will inform constitutional drafting, revisions and amendments in other African countries to ensure the inclusion of the RTD.

  • ‘This Is Us, Three Decades Later’: Implementing Living African Customary Law in South Africa Through the Flexibility Approach

    The article discusses the challenges faced by the development of African Customary Law (ACL) in the post-democratic South African legal system. It highlights issues such as Eurocentric bias, the distortion of official ACL and the judicial misunderstanding of ACL. The proposed solution is a ‘flexibility approach’, which addresses imbalanced jurisprudence and curbs inconsistencies in judicial interpretation. The approach involves a three-phase process: assessment, sifting and feasibility study. The aim is to accommodate both ACL values and constitutional values equally. The approach is community-centered, ensuring development is rooted in the lived realities of the people and not assimilated into common law. However, its application is limited to the living version of ACL and must balance African values with legal certainty and vested rights.

  • Specialised Environmental Courts as a Driver of Environmental Protection in South Africa

    The judiciary plays a vital role in advancing environmental protection. This article critically examines three key roles played by the judiciary towards the achievement of environmental protection—the development of environmental jurisprudence through the interpretation and application of the substantive environment right, the enforcement of environmental laws and the promotion of compliance with environmental laws. It evaluates the extent to which general courts in South Africa have fulfilled these key roles and argues that specialised environmental courts are more appropriately positioned to execute these roles effectively. Using the Environment and Land Court of Kenya, the Land and Environment Court of New South Wales and Hermanus Environmental Court as case studies, it explores the potential benefits of specialised environmental courts in strengthening these roles in South Africa. The analysis underscores the contributions of these specialised environmental courts to the development of environmental jurisprudence and the advancement of environmental protection.

  • Perspectives on the Impact of the Fourth Industrial Revolution and Labour Practice in South Africa

    This study presents a detailed content analysis of the emergence of the Fourth Industrial Revolution (4IR) as it gained momentum in the twenty-first century and its influence on human rights in labour practice. It sets out to investigate the potential implications of the 4IR for the protection and realisation of labour-related human rights in South Africa. The literature review incorporates a critical analysis of the existing and relevant literature that further expands the research problem. The study employs a qualitative method of data collection, evaluating the Constitution of the Republic of South Africa, relevant legislation, policy documents and other authenticated information sources. The aim is to identify research gaps not addressed in previous studies. While the major technological advancements associated with the 4IR are intended to improve workplace practices, many South Africans remain disadvantaged by the digital divide and cannot fully benefit from the opportunities the 4IR presents. This article provides an overview of the existing and emerging regulatory frameworks associated with advanced information technologies and concludes by identifying gaps in the current landscape.

  • ‘Bona Fide Inadvertent Error’ in Section 222 of the Tax Administration Act 28 of 2011. An Analysis of Two Recent Cases: CSARS v The Thistle Trust (2023) (2) SA 120 (SCA) and Commissioner for the South Africa Revenue Service v Coronation Investment Management SA (Pty) Ltd (2023) 2 All SA 44 (SCA)

    The aim of this case note is to discuss the contentious issue relating to the interpretation of the term ‘bona fide inadvertent error’ in the context of understatement. Two recent cases—CSARS v The Thistle Trust (2023) (2) SA 120 (SCA) (7 November 2022) and CSARS v Coronation Investment Management SA (Pty) Ltd (2023) 2 AII SA 44 (SCA) (7 February 2023)—will be discussed against the backdrop of relevant case law and literature. This case note argues that the Tax Administration Act should be amended to provide greater protection to taxpayers who rely on the advice of tax practitioners when submitting returns to the South African Revenue Service (SARS). It further contends that the definitions of ‘understatement’ and ‘bona fide inadvertent error’ in SARS’s Formal Guide to Understatement Penalties (Issue 2, 18 April 2018) should be revised to reflect the broader interpretation adopted by the Supreme Court of Appeal in the Thistle Trust and Coronation judgments.

  • Land Matters and Rural Development: 2024

    The most important land-related developments in the course of 2024 are set out. In the report period, much activity occurred within the legislative domain by way of formulating new measures on the one hand and amending and extending existing legislation on the other. Interesting and important judgments were handed down, especially by the Supreme Court of Appeal, in relation to restitution. The urgent need for land for residential purposes, especially within urban and peri-urban areas, was again highlighted in unlawful occupation and eviction judgments. Tenure security in rural areas remains elusive, with continued eviction of rural dwellers from farm and rural land, with barriers to accessing communal land by women remaining prevalent. The note deals with redistribution, restitution and tenure reform developments in the land reform arena, coupled with developments providing for the operation of the Land Court, amendments with respect to deeds and registries and regulations dealing with Old Order Rights.

  • The Right to Basic Education for Children with Disabilities: South Africa’s Quest for an Inclusive Education System

    This article highlights the urgent need to move away from policy aspirations towards an Act of Parliament tailored explicitly for inclusive education in South Africa. The right to basic education is guaranteed for everyone, including children with disabilities. The nature and context of this right is inclusive, and South Africa has alluded to this through policy. South Africa is a member state of various legally binding international law instruments that recognise inclusive education as a fundamental human right, which the government must realise, respect, protect and promote through legislative and other appropriate measures. In light of the above, the paper argues that the time of keeping inclusive education as a policy aspiration has long passed. There is a need for a defined legislative framework to bridge the gap between policy aspirations and the actual realities of children with disabilities. A legislative framework will foster accountability and define consequences for the persistent exclusion of children with disabilities from the education system. International, regional and constitutional law provide the basis within which legislative measures can be taken on inclusive education.

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