Law, Democracy & Development (LDD) is the journal of the Faculty of Law at the University of the Western Cape. The first issue appeared in May 1997. The journal set out to build on the proud traditions established by UWC and the Law Faculty in the struggle for democracy, with many of our staff and alumni having gone on to serve as ministers of state, judges of the highest courts and in other key positions in the post-apartheid dispensation. Our focus is on legal and socio-legal issues relevant to the development challenges facing South Africa and Africa – it is, above all, on nurturing institutions of governance through the promotion of human rights.


The Globethics library contains vol. 16(2012)-22(2018) no.1

Recent Submissions

  • Reconceptualising sovereign debt in international law

    Bello, Muhammad; Snyman-Van Deventer, Elizabeth (JUTA Publishers, 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. 
  • “Dreams and aspirations deferred?”: The Constitutional Court’s approach to the fulfilment of socio-economic rights in the Constitution

    Majiedt, Justice Steven (JUTA Publishers, 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. 
  • Rising from its ruins? The Southern African Development Community (SADC) Tribunal

    Shumba, Tapiwa (JUTA Publishers, 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? 
  • Fiscal incentives in Kenya’s free zones: To what extent are they consistent with the WTO rules on subsidies?

    Oluyeju, Olufemi; Rotich, Nelly C. (JUTA Publishers, 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.
  • Black economic empowerment in South Africa: Is transformation of the management structures of enterprises as essential as it should be?

    van de Rheede, Jeannine (JUTA Publishers, 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.  
  • The role of the African Charter on Values and Principles of Public Service and Administration in promoting good governance

    Mudau, Paul (JUTA Publishers, 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.  
  • Confronting past atrocities: A critical analysis of the defunct Ethiopian Reconciliation Commission

    Teshome, Moges Zewiddu (JUTA Publishers, 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.  
  • Regional integration in Africa: Proposals for an Africa-wide payment system

    Monye, Ogochukwu; Monye, Ebelechukwu (JUTA Publishers, 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.
  • From precarity to pandemic: How the Covid-19 pandemic has exacerbated poverty, unemployment, and inequality in South Africa

    Mokofe, William Manga (JUTA Publishers, 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.  
  • “Public health emergency declarations” in the Ethiopian federal system: understanding the scope of state and federal emergency declarations and authorities

    Mekone, Yidnekachew Mitiku (JUTA Publishers, 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.  
  • Examining the interpretation of section 115(2)(a) of the Companies Act of 2008

    Bidie, Simphiwe (JUTA Publishers, 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.  
  • An overview of categories of vulnerability among on-demand workers in the gig economy (Part 1)

    (Denine) Smit, Dina Maria; Stopforth, Grey (JUTA Publishers, 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 
  • Different cities, different propertytax-rate regimes: Is it fair in an open and democratic society?

    Van Zyl, Fanie; Fritz, Carika (JUTA Publishers, 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. 
  • The role of intellectual property rights’ protection in advancing development in South Africa

    Chidede, Talkmore (JUTA Publishers, 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.
  • The changing nature of the power of prorogation of Parliament in Lesotho: from absolute prerogative to rationality?

    'Nyane , Hoolo (JUTA Publishers, 2022-10-11)
    The Constitution of Lesotho vests the power to prorogue parliament in the King. Like all executive powers, the power of prorogation is exercisable on the advice of the Prime Minister. In the past, this power was understood as an absolute prerogative that needed no justification, provided it was done in terms of the Constitution. Successive Prime Ministers in Lesotho have used prorogation as a potent political weapon to ward off any political turbulence in Parliament that posed an existential threat to their governments. These Prime Ministers operated under the long-held view that the power to prorogue Parliament is an absolute prerogative. There are clear indications that this orthodox view is rapidly changing. The recent decision of the Constitutional Court in All Basotho Convention v Prime Minister (2020) seems to be ushering in a new approach. In effect, the decision suggests that it is no longer enough that Parliament can be prorogued in terms of the express provisions of the Constitution; the exercise of such power must also be justifiable. This new approach seems to be in keeping with general trends in public law, namely, that the exercise of public power must not only be sourced in law, but must also be rational. The main question is whether prorogation has indeed drifted from being absolute to being exercisable based on rationality as an incident of the doctrine of legality. The purpose of this article is to investigate this question.
  • An exposition of trade policy formulation through the issuing of “Trade Policy Directives” by the Minister of Trade, Industry and Competition under the International Trade Administration Act 71 of 2002

    Vinti , Clive (JUTA Publishers, 2022-10-11)
    Section 5 of the International Trade Administration Act 71 of 2002 (ITAA) provides that the Minister of Trade, Industry and Competition has the power to issue “Trade Policy Directives” subject to the procedures and requirements of the Constitution of the Republic of South Africa, 1996 (Constitution) and other laws. However, there is uncertainty as to how trade policy is formulated under section 5 of the ITAA and the rights of affected parties in this regard. Thus, this article offers an exposition of the process of trade policy formulation under section 5 of the ITAA. To this end, it is my view that trade policy formulation under section 5 must be guided by section 195 of the Constitution, which requires that the public must be “encouraged” to participate in policy formulation and that this must occur in a climate of openness, transparency and accountability. In the narrower sense, it is also my view that interested parties must be given an opportunity to participate in trade policy formulation on the ground of procedural rationality and to avoid a charge of arbitrariness as twin components of the rule of law.
  • Failure to recognise a third gender option: unfair discrimination or justified limitation?

    Sloth-Nielsen, Rachel (JUTA Publishers, 2022-10-11)
    This article seeks to answer the question of whether the State’s failure to recognise a third gender option for transgender non-binary individuals amounts to unfair discrimination or whether this limitation could be justified. After a brief conceptual framework is discussed, the article looks at the right to equality as found in section 9 of the Constitution of the Republic of South Africa, 1996. Thereafter the article explores whether the non-recognition of a third gender option could be found to be discrimination on a ground listed in the Constitution, as well as whether it could be found to amount to an analogous ground. It is opined that non-recognition of a third gender option does amount to discrimination on the analogous ground of gender identity. It is further submitted that no justification for this limitation of the right to equality would be upheld by a competent court.
  • A critical analysis of Zimbabwe’s codified business judgment rule and its place in the corporate governance landscape

    Hamadziripi, Friedrich; Osode , Patrick C. (JUTA Publishers, 2022-10-11)
    The business judgment rule (BJR or the Rule) is an American legal export which has become a key corporate governance tool in most leading common law jurisdictions, such as, Australia, Canada and South Africa. However, the Rule has not been formally embraced in the United Kingdom. In Zimbabwe, the Rule has traditionally been treated as a common law feature. However, section 54 of Zimbabwe’s new Companies and Other Business Entities Act represents one of the significant advances in strengthening the jurisdiction’s corporate governance principles by codifying the Rule. The BJR originated together with the directors’ duty of care and skill. There are two main formulations of the BJR. The first one is by the Delaware Chancery Court and the second one derives from the American Law Institute’s Principles of Corporate Governance. The Rule mostly applies in determining the procedural aspects of the directors’ decision or the decision-making process and only in exceptional cases is it invoked to review the merits of their decision. This article seeks to critically analyse the major elements of Zimbabwe’s codified BJR and to ascertain its place in the corporate governance framework. As will become clear, it will also be argued that the statutory BJR is intended for the enhancement of directorial accountability.
  • Marriages of convenience through the immigration lens: concepts, issues, impact and policies

    Kavuro , Callixte (JUTA Publishers, 2022-10-11)
    This article examines the attempts made by both the Executive and Parliament to curb marriages of convenience through the revision of refugee and immigration laws. Asylum seekers or economic migrants use marriages of convenience largely to legitimise their stay in South Africa. South African authorities regard these marriages of convenience as a threat both to South African society as they violate pro-marriage policies and anti-irregular migrant policies, and to national security as they defeat the object of the institution of marriage. In this context, the article explores the complexities of combating marriages of convenience on the basis of the principle of consent on which a valid marriage is fundamentally constructed, and also on the basis of an analysis of judicial opinions holding that a marriage of convenience must be terminated by a decree of divorce.
  • Deciding non-constitutional matters of general public importance in South African law: can constitutional values be used?

    Nkoane, Paul (JUTA Publishers, 2022-10-11)
    The Constitution of the Republic of South Africa, 1996 is supreme. It can be used to assess the soundness of various policies and laws. This statement has however been challenged based on the apparent limited range of the provisions of the Constitution. The Bill of Rights enshrined in the Constitution comprises of dedicated rules intended to address certain issues. Owing to this supposed limitation, some have questioned the tag of supremacy attached to the Constitution. The article examines how the Constitutional Court has decided issues which did not raise clear constitutional questions to determine whether values could be used to decide various issues of law. This determination, similarly, informs whether constitutional values could be used to administer matters of general public importance that are not founded on clear constitutional questions.

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