Research Articles (Faculty of Law)

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Artifacts of judging: Justice Johan Froneman
(North-West Unversity, 2024) van Marle, Karin; du Plessis, Elmien
Early in the Constitutional era, in Qozeleni v Minister of Law and Order 1994 3 SA 625 (E) Justice Johan Froneman called for the "rubicon … to be crossed out not only intellectually, but also emotionally before the interpretation and application of the … Constitution is fully to come into its own right". He further argued for the Constitution "to become … a living document". In his many judgements in a judicial career spanning 25 years, Justice Froneman suggested some of what such a crossing of the Rubicon could entail. He also gave meaning to the idea of the Constitution as a living document. The contributions in this special edition unpack, reflect on, evaluate and further the work of and themes tackled by Justice Froneman. Justice Johan Froneman retired from the Constitutional Court in 2020. He was appointed to the Constitutional Court in 2009 after serving as Judge of the Eastern Cape High Court, Grahamstown (1994-2009); Deputy Judge President of the Labour Court and Labour Appeal Court (1996-1999) and two terms in 2002 acting on the Supreme Court of Appeal. In 1999 he was a visitor at Harvard University by invitation of Professor Frank Michelman. He was also Extraordinary Professor in Public Law at Stellenbosch University (2003-2008) and a Visitor at the Centre for Socio-Legal Studies, University of Oxford, in 2008. He is currently an extraordinary professor in the Department of Public Law, University of the Free State. He has delivered judgements in a wide range of cases.
The president’s role(s) in the law-making process in Uganda
(Oxford University Press, 2023) Mujuzi, Jamil Ddamulira
Articles 79(1) and (2) of the Constitution of Uganda provide that subject to the provisions of the Constitution, only Parliament or a person or body authorized by Parliament, has the power to make laws. Article 91 provides ways in which the President participates in the law-making process. I examine the Hansard of the 10th Parliament of Uganda (May 2016—May 2021) to demonstrate how the President invoked Article 91 to, inter alia, return Bills to Parliament or to decline to assent to Bills. The 10th Parliament passed 118 Bills, seven Bills were withdrawn and the President returned 11 Bills. The Hansard show that: (i) in most of the cases, Parliament amended the Bills to address the President’s concerns; (ii) there are instances in which Parliament appears to disregard the Constitution especially in cases where the President has exceeded the constitutional time limit within which he must assent to Bills; (iii) Parliament applied different methodologies to gather the information it needed to revise the Bills and (iv) in a few cases, Parliament disagreed with the President and declined to change the returned clauses of the Bills. The article shows, inter alia, that the President wielded enormous powers in the law-making process contrary to what was envisaged by the drafters of the Constitution. It is argued, inter alia, that in reconsidering the Bills returned by the President, Parliament should not ignore the issue of public participation otherwise the Acts may be declared unconstitutional.
The human rights jurisdiction of the constitutional court of Seychelles
(Nomos Verlagsgesellschaft mbH und Co KG, 2023) Mujuzi, Jamil Ddamulira
The jurisdiction of the Constitutional Court of the Seychelles, the Court, is provided for under different provisions of the Constitution. Article 46 deals with the circumstances in which a person may approach the Court to enforce human rights. It also deals with the powers of the Court in this context. In this article, I illustrate how the Court, when enforcing or applying Article 46, has dealt with the following issues: locus standi to petition the Court; circumstances in which the Court's jurisdiction is excluded or limited; powers of the Court in protecting human rights, circumstances in which other courts may refer matters to the Constitutional Court and procedural access to the Court and the burden to prove human rights violations. It is observed that for a person to have locus standi under Article 46(1), there has to be a real likelihood that his/her right will be violated. A remote possibility of a violation does not trigger Article 46(1). It is observed further that the right under Article 46(1) is not absolute; although the word ‘may’ is used under Article 46(3), the Court is obliged to decline being seized with a matter in case the applicant has obtained redress from another court; since the constitution is silent on the burden of proof in cases where a private individual is alleged to have violated a human right, the burden should be on the applicant to prove such a violation; and that the Rules of the Court which require that an action alleging a violation of human rights has to be filed within three months of the violation may have to be amended to create exceptions for continuing violations of human rights and for the violation of non-derogable rights.
Distribution of property at the termination of de facto unions (marriages by cohabitation/repute) in some African countries
(Oxford University Press, 2023) Mujuzi, Jamil Ddamulira
Many African countries have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article 16(1) of CEDAW provides for, inter alia, the right to equality in a marriage. The drafting history of Article 16 of CEDAW shows that the delegates agreed that the whole provision was applicable to women whether or not they were married. In its General Recommendation No. 29 on Marriage and Family Relations, the CEDAW Committee provides interpretive guidance for states on Article 16 and, inter alia, highlights the economic hardships that women face at the termination of de facto unions or relationships (marriages by cohabitation) and urged state parties to protect the economic rights of women in such relationships. African countries have approached the issue of de facto relationships in different ways. These approaches have also determined the manner in which the economic rights of parties to these relationships are protected. In some countries such as Malawi and Tanzania, legislation recognizes such unions. In Kenya, although these unions are not recognized by legislation, they are recognized by courts. Courts have also recognized some economic rights of parties therein. In Seychelles, a ‘hybrid’ approach has been followed in terms of which these rights are protected in both legislation and case law. In Uganda, South Africa, Zambia, Ghana, Zimbabwe, Lesotho, Swaziland, and Rwanda, de facto unions are neither recognized in legislation nor in case law.
Public property in South Africa: A human rights perspective
(Pretoria University Law Press, 2024) Viljoen, Sue-Mari
This article reviews public property and the distinct role of the state as public land owner within a rich human rights framework. To critically rethink the significance and purpose of this understudied legal subject, foundational observations are shared in the article. From a conceptual perspective, a distinction is drawn between common property that is openly accessible to all, and public property that is exclusively managed by the state for specific governmental purposes. Characteristically, the article suggests that these are two vastly divergent types of property that serve distinct aims; they are also subject to separate regulatory frameworks. The notion and communal significance of common property is unpacked with reference to the use of such property in the city of Cape Town to engage with some theoretical concerns dealing with the gradual degeneration of the public sphere. In the context of public property that is exclusively used and managed by the South African government, the article submits that the accustomed private property discourse is ill-suited to uncover and explore the nature, character, as well as the rights and interests of the state as public land owner. Instead, public land ownership should be approached and repurposed in line with constitutional commitments expressed in relation to property.
Interpreting the right to work and its application in the South African legal framework
(North-West Unversity, 2024) Loedolf, Kim-Leigh
The article discusses the right to work within the context of South Africa. South African law, at present, does not provide for a right to work as provided for by the international covenant on economic, social and cultural rights (ICESCR). Implementing the right to work might address the high unemployment rate in South Africa and it is concerning that the right to work has not yet been considered as potential solution. The aim of the article is to interpret the right to work through the interpretive lens of the united nations committee on economic, social and cultural rights. The article discusses the obligations created by the ICESCR and the progress the government of South Africa has made to meet the state obligations relating to the right to work as provided by the ICESCR. The article concludes with a comprehensive definition of the right to work and suggests that the government of South Africa, adopt the right to work immediately as a means to avoid further hardship partially caused by the lack of a rights framework guaranteeing the right to work in South Africa.
Inhabiting the ruins of the city of Tshwane
(North-West Unversity, 2024) de Villiers, Isolde
In the inner city of Tshwane stand the skeletons of four high-rise buildings – the remains of Schubart Park. While there are no more people inside the ruins of these buildings, they contain the stories of the relations between a city and its inhabitants. In 2012 Justice Froneman wrote the judgment that ordered that the inhabitants of Schubart Park should be reinstated in their former homes, after they were evicted by the City of Tshwane in 2011. More than ten years after his judgment, there is (again) a plan to move the former residents back. From a spatial justice perspective and through Ann Stoler's work on ruination, Chris Butler's call for inhabiting the ruins and Ivan Vladislavić's short story We Came to the Monument, I reflect on how court judgments stand between the possible and the impossible. I call for a re-imagination of the ways in which the municipality can relate to the inhabitants of the City and argue that Justice Froneman enables this re-imagination through his judgment in Schubart Park.
A child's right to identity in the context of embryo donation: part 1
(North-West Unversity, 2024) Bouah, Nicole; Jacobs, Carmel
This article investigates the extent to which the South African Legislature and the international community recognise the right to identity of a child born through embryo donation. A distinction is drawn between embryo donation, gamete donation and surrogacy. Thereafter, the article discusses the multiple aspects which the right to identity comprises, namely: personal, biological, family and siblingship identity. An assessment is made of how these various aspects are impacted by national and cross-border embryo donation arrangements. The Children's Act 38 of 2005, the Constitution of the Republic of South Africa, 1996, the National Health Act 61 of 2003 and the Regulations Relating to Artificial Fertilisation of Persons, in addition to the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) are critically examined to the extent that may be applicable to children born through embryo donation. The article concludes that neither the South African legislative framework, nor the CRC or the ACRWC explicitly upholds the child's right to identity
Chained Communities: A Critique of South Africa’s Approach to Land Restitution
(2021) Diala, Anthony; Sonya R, Cotton
In its quest to restore land to millions of its citizens dispossessed under colonial and apartheid regimes, South Africa adopted a Restitution of Land Rights Act and set up a Land Claims Court in 1994 and 1996, respectively. This article uses select judgments of the Land Claims Court to critique the interpretative mindset of judges and the ideological neutrality of certain definitions in the Restitution Act. It argues that the colonial legacy of legal positivism and 20th century anthropological imagery inhibits the access to justice of dispossessed Africans living on the periphery of land rights. It uses the word ‘chained’ to describe communities whose restitution of land rights depends on their ability to (re)imagine themselves through a judicial prism of fossilized colonial ideas of traditional structures, lineage, and unbroken practices. The article recommends measures for promoting a South African legal culture that is sensitive to legal pluralism, mindful of indigenous law’s flexibility, and distrustful of undue standardization that stifles people’s access to justice.
Nietzsche’s legacy and constitutional values: a deconstructive reading
(Springer Science and Business Media B.V., 2024-05-20) de Ville, Jacques
Derrida’s recently published Life Death seminars have again highlighted the importance of values within the ongoing philosophical conversation about overcoming metaphysics. The seminars further indirectly raise a matter of great importance for constitutional theory. Values have become central to constitutional discourse since the mid-twentieth century despite critique due to their supposedly subjective nature, the potential conflict between them, and the legal uncertainty that they bring about. This essay enquires into the origin, logic, structure, and operation of (constitutional) values. It does so through a close reading of the texts of Heidegger and Derrida in which Nietzsche’s call for a revaluation of values takes on a central role, along with a reflection on the relation between life and Being, as well as between life and death. A close reading of these texts in turn makes possible an unorthodox reading of Schmitt’s newly translated text on constitutional values in The Tyranny of Values, which finally opens the possibility of a move beyond such values and thus beyond metaphysics.
Regulating public property: the account of the homeless
(SAGE Publications Ltd, 2024) Viljoen, Sue-Mari
A global socio-economic problem concerns the unlawful occupation of public spaces. At a time when states are more inclined to adopt welfare-orientated, inclusive social policies, property rules continue to forbid the homeless from exercising those activities that should ideally be done in private. The city of Cape Town serves as an interesting case study to critically reflect on social policies and laws that regulate the use of public property when rough sleeping is not only excessive, but perhaps even normatively accepted. The article reflects on the social dilemma of an emerging conflict between property rules (specifically antisocial behavior laws) and what has become normatively conventional in the streets, sidewalks, and public parks of the city. Antisocial behavior laws are enforced irregularly as the homeless are informally pardoned therefrom; this can lead to civic hostility and more social violations. The regulatory framework pertaining to street people is also analyzed considering the constitutional directive to distribute land/dwellings. Property is inaccessible for the most destitute - the centrality of property is overlooked in the state's pursuit to not only provide access, but also enable the vulnerable to live dignified, self-sustaining lives. For the street population, the freedom to perform every-day acts is socially controlled by the property system to that of state forbearance, shaped by an indefinite norms-based understanding of where certain activities are considered reasonable. This is a unsustainable, inhumane practice that prejudices the entire community and the urban environment.
Impact of Electronic Fiscal Device on Perceived Transparency in Tax Audit: A Case of Arusha-Tanzania
(Adonis and Abbey Publishers Ltd, 2023) Malima, Agnes Elson; Pillay, Surendran; Obalade, Adefemi A.
In recent years, the application of Electronic Fiscal devices (EFDs) in developing countries has significantly increased. This increase in use resulted from an increase in awareness of its perceived benefits such as efficiency of tax collection, reduction of tax evasion and improvement of tax audit transparency. This study assessed the effect of EFD use on the tax audit effectiveness and the perceived degree of transparency in tax audit processes among small entrepreneurs in the Arusha region of Tanzania. The study was conducted on small businesses because of their significance in driving the economy of developing countries. Primary data was collected using a close-ended questionnaire distributed to 279 small business owners. An interview was also conducted to supplement the data collected from the questionnaire. Based on the outcomes of one-way analysis of variance (ANOVA) and ordinal regression, this study found that the use of EFDs affected the perceived degree of transparency in the tax audit. The authors recommend that the revenue authority should create more awareness of EFDs and extend its use to other businesses not currently covered. This is necessary to enhance the effectiveness of the tax audit, given its positive impact on transparency.
The making of Uganda's equal opportunities commission act and its interpretation by the commission
(Cambridge University Press, 2023) Mujuzi, Jamil Ddamulira
Article 32(3) of the Constitution of Uganda (1995) establishes the Equal Opportunities Commission; section 14 of the Equal Opportunities Commission Act provides for the functions of the Commission. These include ensuring that the laws, policies and customs of both public and private entities are not discriminatory and do not marginalize any person or deny him / her equal opportunities. The Commission has handled a few complaints dealing with discrimination, affirmative action, marginalization and impairment of equal opportunities. I rely on the drafting history of the Act, among other sources, to argue, inter alia, that the list of prohibited grounds of discrimination under the Act is exhaustive and that the Commission does not have jurisdiction to deal with complaints alleging discrimination on some grounds. I demonstrate that the Commission has been inconsistent in its definition of discrimination and in dealing with remedies where it has found instances of discrimination, marginalization or denial of opportunities. In some cases, the Commission has blurred the distinction between discrimination and marginalization.
Perfecting a general notarial bond: you can't have your cake and eat it! ABSA bank limited v go on supermarket (Pty) limited (the spar group limited intervening) (9442/2022) [2022] zagpjhc 173 (24 March 2022)
(Potchefstroom Electronic Law Journal (PELJ), 2023) Koekemoer, Michel; Brits, Reghard
A general notarial bond registered over movable property grants the bondholder a real security right enforceable against third parties only if the bond has been perfected by transferring possession of the property to the bondholder. Based on the facts and judgment in Absa Bank Limited v Go On Supermarket (Pty) Limited, this analysis revisits the basic principles of and requirements for the perfection of a general bond. We ultimately criticize the judgment on three scores. Firstly, the court regarded the form of delivery (transfer of possession) applicable in this matter as symbolic delivery, but we point out that it amounted to constitutum possessorium – meaning that the attempted perfection of the bond was ineffective
Editorial: Towards meaningful action against proliferation financing
(Journal of Money Laundering Control, 2023) De Koker, Louis
Background: The financial action task force (FATF) standards are designed to combat money laundering, terrorist financing and proliferation financing. Threats of Russian employment of nuclear weapons in its conflict with Ukraine, continuing North Korean ballistic missile testing and expansion of its intercontinental ballistic missile capacity and concerns about the availability of uranium on the black market heighten the relevance of effective counter proliferation financing measures. This is however also the area where FATF standards are at their weakest, mainly due to a lack of global consensus among nuclear powers.
The political and cultural inclusion of intra-state ethnic minorities in Ethiopia: The case of the Qimant of Amhara state
(Studies in Ethnicity and Nationalism, 2023) Ayele, Z
Conflicts between the Qimant community – an intrastate minority ethnic group endogenous to Amhara state in the Ethiopian federation – and the state’s special police forces have caused hundreds of deaths and the internal displacement of close to 50,000 people. Linked to these conflicts are the Qimants’ demands for recognition as a distinct ethnic community and the establishment of local government in the territories they inhabit; demands which have not received a satisfactory response from the federal or Amhara state government and which officials view with disdain. The situation raises several questions. Do the federal and regional-state constitutions provide the necessary framework for accommodating intra-state ethnic minorities such as the Qimant?
Private prosecution in Nigeria under the Administration of Criminal Justice Act, 2015
(Cambridge University Press, 2019) Mujuzi, Jamil Ddamulira
Private prosecutions have been part of the Nigerian legal system for a long time. In 2015, the Administration of Criminal Justice Act (ACJA) came into force. The ACJA provides for, inter alia, circumstances in which a person may institute a private prosecution. In this article, relying on jurisprudence emanating from Nigerian courts before the ACJA came into force, the author suggests ways in which Nigerian courts could approach the right to institute a private prosecution under the act. To achieve this objective, the author discusses: the right to institute a private prosecution; locus standi to institute a private prosecution; and measures to prevent abuse of the right to institute a private prosecution.
Deliberate delays in offering abortion to pregnant women with fetal anomalies after 24 weeks' gestation at a centre in South Africa
(Wiley, 2023) Kleinsmidt, Anita; Malope, Malebo; Urban, Michael
South Africa has an abortion law which codifies the broad themes of reproductiverights set out in the Constitution of South Africa, other laws and national guidelines.Certain wording of the conditions in the Choice Act for abortion after 20 weeks'gestation, are open to interpretation, being‘severe malformation of the fetus’and‘risk of injury to the fetus’. From 24 weeks onwards, abortion is carried out byfeticide/induced fetal cardiac asystole (‘IFCA’) and subsequent induction of labour inSouth Africa. Some maternal‐fetal units have developed guidelines to assist cliniciansand patients in decision‐making around eligibility for abortion after 20 weeks'gestation, given the broad terms in the law. We consider the guideline used by aninstitution in the Western Cape for abortion after 23 weeks and 6 days gestation, interms of its alignment with the law on reproductive rights and its compliance withfair and transparent procedures. We also note its effect on respect for patients andon staff professionalism.
The power of prosecutorial heads to intervene in private prosecutions in commonwealth countries
(Loyola College of Social Sciences, 2022) Mujuzi, Jamil Ddamulira
In most countries public prosecutors are responsible for prosecuting offences. In Commonwealth countries, public prosecutors are headed by Directors of Public Prosecution (DPP), Prosecutors General (PG) or Attorneys-General (AG). However, for various reasons a public prosecutor may decline to prosecute a suspect even if there is evidence that the suspect committed the offence. It is against that background that private prosecutions are provided for in the constitutions and legislation in Commonwealth countries. In many commonwealth countries, the prosecutorial head is empowered to take over and continue with or to discontinue private prosecutions.
Multilevel Governance and Control of the COVID-19 Pandemic in the Democratic Republic of Congo: Learning from the Four First Waves
(MDPI, 2023) Joel, Ekofo; Chrispin, Kabanga; Agyepong, Irene; Kashiya, Yves; Mukinda, Fidele
The COVID-19 pandemic continues to impose a heavy burden on people around the world. The Democratic Republic of the Congo (DRC) has also been affected. The objective of this study was to explore national policy responses to the COVID-19 pandemic in the DRC and drivers of the response, and to generate lessons for strengthening health systems’ resilience and public health capacity to respond to health security threats. This was a case study with data collected through a literature review and in-depth interviews with key informants. Data analysis was carried out manually using thematic content analysis translated into a logical and descriptive summary of the results. The management of the response to the COVID-19 pandemic reflected multilevel governance. It implied a centralized command and a decentralized implementation. The centralized command at the national level mostly involved state actors organized into ad hoc structures. The decentralized implementation involved state actors at the provincial and peripheral level including two other ad hoc structures. Non-state actors were involved at both levels. These ad hoc structures had problems coordinating the transmission of information to the public as they were operating outside the normative framework of the health system. Conclusions: Lessons that can be learned from this study include the strategic organisation of the response inspired by previous experiences with epidemics; the need to decentralize decision-making power to anticipate or respond quickly and adequately to a threat such as the COVID-19 pandemic; and measures decided, taken, or adapted according to the epidemiological evolution (cases and deaths) of the epidemic and its effects on the socio-economic situation of the population. Other countries can benefit from the DRC experience by adapting it to their own context.

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