Southern African Public Law

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Latest documents

• A Cost-benefit Assessment of Refugee and Asylum-Seeking Women Reporting Sexual and Gender-based Violence in Uganda: Assessing Women’s Resilience as a Means to Protect their Ethno-religious Group

  Drawing from fieldwork carried out in Uganda, this empirical study is an enquiry into women’s resilience in the face of sexual and gender-based violence (SGBV) in the country. It asks why, and when, refugee and asylum-seeking women decide to report (or not report) SGBV. It also enquires into the issues that determine when they do so. The article shows that many participants did not report cases of SGBV because of their concerns about protecting their ethno-religious group and avoiding further discrimination and villainisation of their communities. Survivors are also confronted with the ineffectiveness of retributive justice, which is slow to punish perpetrators. This has led to the establishment of a plea-bargaining system in the country, although this also falls short of securing justice for SGBV survivors. Therefore, survivors often turn to their communities to deal with instances of SGBV. However, most of these community-based mechanisms reinforce patriarchal discrimination and violence and often disregard women’s well-being, interests, and fundamental rights. Women also have to deal with patriarchal pressure that places the responsibility for community cohesion on the woman, as part of her traditional role. This inhibits the ability to make a free and personal choice that could benefit women as a social group.

• The Civilian Secretariat for Police Service Act 2 of 2011: Implications for the Policing Powers of the Provincial Governments in South Africa

  The Constitution of the Republic of South Africa provides for the establishment of a Civilian Secretariat for Police Service. To give effect to this constitutional imperative, parliament passed the Civilian Secretariat for Police Service Act 2 of 2011 in March 2011. This Act enjoins members of the Executive Councils (MECs) to establish provincial secretariats for their respective provinces. This article examines the implications of the Act for the South African provincial governments’ exercise of their policing powers. The article also explores both the current legal and institutional challenges encountered in the establishment of provincial secretariats and those anticipated when the Act is fully implemented at the provincial level. The article argues that the current implementation of the Act, which essentially conflates the civilian secretariat with the provincial departments of community safety, is problematic at many levels.

• A Progressive Reading of Customary and Religious Norms Associated with Heteronormativity in South Africa

  Customs that enforce heteronormativity, generally also safeguard the interests of society’s vulnerable, for instance orphans and widows, to name two examples. The recognition that non-heterosexual people is a minority group with legitimate concerns is important, as they could contribute to family support while maintaining their identity and mental well-being. Non-heterosexual individuals’ interests are protected in the current Constitution; however, their protection must transform social support structures beyond written laws. Social structures tend to accept change at a slower pace than progressive laws. In South Africa the gender-normative and heteronormative are generally being overridden by a ‘don’t ask, don’t tell’ code, where sexual minorities are gradually gaining acceptance in a dominantly heteronormative society. In this article, the authors argue against the customs of spousal inheritance and ukuthwala, which, among others, are being imposed on non-heterosexual people, because they suggest a person’s sexuality belongs to a clan. These cultural practices may serve a purpose in society but could be interpreted to support constitutional values. For instance, traditional healers as custodians of culture have documented instances of being gender-fluid, when a female could be possessed by a male spirit, thus requiring a female sexual partner. Indigenous culture as it is known, has been tainted by capitalism, patriarchy, foreign religion, and the absolute opinions of a few elders. Which begs the question whether heteronormativity truly is a South African construct.

• Afro-feminism and the Coloniality of Gender in Constitutional and Legislative Drafting: South Africa as a Case Study

  Before essential feminist contributions to legal drafting were made, legislative drafters adopted the use of the masculine rule, which established that all genders were implicitly included in the usage of the pseudo-generic third person masculine singulars such as ‘he’ and ‘him.’ In the 1960s, feminism acted as a nucleus for an approach to legal drafting that was inclusive of and thus avoided the erasure of women in constitutional and legislative language. Historically, the concept of gender neutrality has been approached from binary cisgendered and heteronormative perspectives. Legal drafters now have to take cognisance of this evolving reality as there is a growing need for legislation that is gender diverse and non-heteronormative. The Recognition of Customary Marriages Act 120 of 1998 has been subject to criticism for its use of gendered language that excludes queer couples. This article places the development of an understanding of inclusive legal drafting in South Africa within Afro-feminist theory. These theories present a more useful framework for thinking beyond a binary view of language in legal drafting. They also present an opportunity of placing inclusive legal drafting as African, in the face of continued marginalisation and subjugation of gender and sexual minorities on the continent. Using theories such as the coloniality of gender, the coloniality of being and the coloniality of knowledge for deconstructing Western and consequently binary notions of gender neutrality, I suggest an Afro-feminist understanding of drafting that will consequently be gender-neutral in a way that is inclusive of queer people.

• Interview with Professor Dire Tladi, the South African Candidate for a Seat at the International Court of Justice

  Mutondi Mulaudzi interviewed Professor Dire Tladi, SARChI Chair for Constitutional International Law and South Africa’s candidate for election to the International Court of Justice (ICJ). If elected, Professor Tladi would be the first South African elected to the Court. The interview was conducted online on 28 July 2023. In this interview, Mutondi Mulaudzi and Dire Tladi discuss the latter’s introduction to international law in his early career and his vision for his tenure at the Court if elected. The interview reveals the compelling reasons behind South Africa’s selection of Professor Tladi to be its candidate for election. Tladi’s background in government enables him to understand the limits of States; his role as a comprehensive international lawyer and involvement with the International Law Commission (ILC) provides him with a profound grasp of various facets of international law. Also, his experience as Counsel grants him insight into the thought processes of international legal practitioners. Having dedicated the entirety of his career thus far to the study and development of international law, Tladi’s experience positions him as a ‘triple threat’ in the field. This interview has been edited for length and clarity.

• Hard Cases Make Bad Law: Reflections on the South African Constitutional Court’s Jurisprudence on the Development of African Customary Law in South Africa

  Judicial interpretation and adjudication are complex and controversial processes that the judiciary has been grappling with for centuries. This persists in modern constitutional judicial processes, particularly when adjudicating ‘hard cases.’ African customary law cases are indeed hard or difficult cases. This is especially so when it comes to the development of African customary law. This article reflects on the jurisprudence of the Constitutional Court of South Africa regarding the development of African customary law. It is concluded that although there were some commendable strides in the development of African customary law in a few cases at its inception, the court has in subsequent judgments faltered. In these ‘hard cases’ the court has, in many instances, adopted a conservative, formalistic, literalistic approach, often using technicalities to either avoid the development of African customary law or simply abdicate its judicial responsibility. This flies in the face of the project of transformative constitutionalism and produces bad law when it comes to the court’s jurisprudence on the development of customary law.

• These are not the Decisions you are Looking For—The Courts’ Duty to Follow Binding Precedent

  The doctrine of judicial precedent directs courts to use past hierarchically binding decisions as settled points for determining current disputes. The inherent nature and application of the doctrine, as an intrinsic part of the common law, continued after the advent of the Constitution of the Republic of South Africa in 1996. The Constitutional Court and the Supreme Court of Appeal acknowledged the value of the doctrine in the South African constitutional democracy. At the same time, numerous other scholars commented on the doctrine’s merits, benefits, and failures. The endorsement of the doctrine as an established fundamental source of law should imply that its application is understood and generally accepted in practice. However, the virtues of the doctrine are not always self-evident to a judicial officer constrained by a precedent perceived as incorrect or inappropriate. This article deals with the apparent failure of the High Court in specific judgments to follow binding precedent. The article accordingly evaluates three recent judgments of the Constitutional Court wherein that court expressed its concern with the lower courts’ perceived failure to follow precedents or explain why they are distinguishable. The article also comments on the doctrine’s historical application and current justifications.

• Degrowth and International Law: Assessing the Compatibility of Degrowth and the Principle of Sustainable Development

  This article explores whether the international law principle of sustainable development is compatible with the degrowth development framework. Sustainable development is a guiding and binding principle of international law which calls for development that meets the needs of the current generation without compromising the ability of future generations to meet their own needs. This article is grounded in the international law principle of sustainable development because of the significant position it occupies in international law as a guiding principle of the United Nations. Degrowth calls for the intentional downscaling of production and consumption at all levels to bring human activity back within planetary boundaries while securing decent levels of human well-being. It challenges the common-sense understanding that economic growth is an indispensable part of development and instead relies on policies which redistribute already existing wealth to fund social development projects. An approach to social concerns in this way ensures that less environmental capital is needed to develop States. This article takes a broad approach to sustainable development and degrowth and argues that they are complementary because they share the same base, namely the intersection between economic development, social development, and environmental protection. This article ultimately concludes that the principle of sustainable development is compatible with and is most purely manifested within a degrowth framework.

• Land Matters and Rural Development: 2021

  While the report period was dominated by the review process of the property clause, aimed at enabling the expropriation of land for land reform purposes at nil compensation, various other important developments occurred in 2021, dealing with land. Included herewith was the publication of various bills, dealing inter alia, with the Land Court and housing-related matters; the publication of the long-awaited Upgrading of Land Rights Amendment Act, as well as the handing down of critical judgments within the domains of redistribution, tenure reform and restitution respectively. Given that the review process did not result in an amended property clause, the underlying difficulties in land reform continue to be addressed holistically under the extant, unchanged section 25 of the Constitution.

• Transformation Agenda During COVID-19: Do the Means Justify the Ends?

  The impact of the Coronavirus (COVID-19) on the public health system of South Africa and the economy is evident. In an attempt to tackle economic hardship, the government created various economic relief packages. One of the industries hardest hit by the pandemic was the tourism sector. The Minister of Tourism then created a fund to assist within the tourism sector but added a separate requirement to access the fund based on the B-BBEE status of the company. This note seeks to answer the question of whether a transformation agenda during a national crisis is appropriate for achieving the desired end. This is especially critical at a time when the entire tourism industry was impacted in some way by COVID-19 and the ensuing lockdown.

Featured documents

• Reforming the role of the African Commission on Human and Peoples’ Rights in Advancing Democratic Principles and Human Rights in African Countries : an examination using the lens of Swaziland/ eSwatini

  This article explores the role of the African Commission on Human and Peoples’ Rights and the role it plays regarding human rights in individual country situations in Africa. It specifically examines the extent to which it has been able to advance a human rights agenda in countries with long-...

• Land matters and rural development : 2014 (2) : journal

  In this note on land, the most important measures, court decisions and literature pertaining to restitution, land redistribution, land reform, housing, land use planning, deeds, sectional titles, agriculture and rural development are discussed....

• Brexit, the election of Donald Trump and activism in South Africa lessons for democracy : the contribution of Justice Sandile Ngcobo

  Ngcobo J’s conception of democracy is more in keeping with the ancient understanding, found in the Athenian city-state, traditional African societies and the writings of Karl Marx. The traditional conception, affirmed by Rousseau, requires the direct participation of the population in the...

• The death penalty in Malawi : an assessment against regional and international human-rights standards
• The right to housing : challenges associated with the 'waiting list system' Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

  The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This...

• Prosecutorial Discretion and Judicial Review: An Analysis of Recent Canadian and South African Decisions

  The question whether the functions performed by the prosecutor in the criminal justice system are subject to judicial scrutiny has been a matter for concern in common-law jurisdictions for quite some time. The courts in the Commonwealth generally agree that prosecutors must function independently;...

• Land matters and rural development : 2016(1)

  This note covers land issues: the most important measures and court decisions pertaining to restitution, land redistribution, land reform, unlawful occupation, housing, land use planning, deeds, surveying, rural development and agriculture are discussed....

• Brexit, the election of Donald Trump and activism in South Africa lessons for democracy : the contribution of Justice Sandile Ngcobo

  Ngcobo J’s conception of democracy is more in keeping with the ancient understanding, found in the Athenian city-state, traditional African societies and the writings of Karl Marx. The traditional conception, affirmed by Rousseau, requires the direct participation of the population in the decision-m...

• The international evolution of the right of children to social security

  This article seeks to provide an analysis of the right of children to social security as provided for in the various international legal instruments, and as assimilated in other legal documents. Furthermore, it argues that scarcity of resources prevents children from enjoying socio-economic rights, ...

• Testing the Right to Vote in Free, Fair, and Regular Local Government Elections in South Africa: Challenges from the COVID-19 Pandemic

  This article uses the doctrinal legal research method to examine the challenges that faced South Africa in preparing for the 2021 local government elections. The health risks posed by the COVID-19 pandemic led the national executive to promulgate emergency health regulations and impose lockdowns to ...