Research Articles (Faculty of Law)

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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.
Dirty money as legal fees in Namibia and Zimbabwe: are lawyers laundering proceeds of crime?
(Emerald, 2020) Duri, Jorum
The purpose of this paper is to explore the contentious issue whether lawyers become launderers when they accept dirty money as legal fees. Lawyers represent criminal defendants who may wish to pay for their legal fees with proceeds of their criminal activities. The paper analyses the legal position of Namibia and Zimbabwe on such tainted fees and proceeds to compare with the different position taken by the United States. The paper adopts a desk research methodology with reliance on various sources such as statutory laws, case laws, books, journal articles and the internet. Its scope is limited to issue and content analysis relating to the use of dirty money as legal fees.
An Analysis of the Human Rights and Gender consequences of the New South African Constitution and Bill of Rights with regards to the recognition and implementation of Muslim Personal Law
(The University of the Western Cape, 1996) Moosa, Najma
Prior to the new constitutional dispensation in South Africa all women had identities of race and gender imposed on them. With a new dispensation in place Muslim women, however, still have to deal with identities attributed to them by religion and culture. The author of this dissertation is herself a Muslim woman who has struggled to reconcile her public life and "new found" equality with these identities. She found it difficult to believe that Islam, the self same religion which had brought seventh-century Arabian society out of its degenerating stupor, could be used to justify behaviour by conservative religious authorities ( Ulama) in South Africa which deny women equality. Earlier research partly allayed her suspicions and fears but did not lay them to rest completely. The fact that South Africa was to face a human rights revolution which would ultimately affect the lives of all her citizens for the better, sparked off a desire within the author to establish whether it is not possible to reconcile the undeniable and unalterable spirit of equality within Islam with the implementation of a reformed Muslim Personal Law (MPL) so that women can enjoy the best of both worlds.
Overcoming the past and shaping the future: The quest for relevance in teaching and researching public administration in Africa
(Springer, 2021) Tapscott, Chris
The status of teaching and research on public administration in Africa countries, in many respects, remains a vestige of the colonial era and this is reflected in the epistemologies that underpin the design of the curricula and pedagogies adopted. They have been further shaped by the injunctions of neoliberalism and conditionalities of donor aid which promote normative northern models of public administration. Recognising this reality African scholars and others have, for some time, advocated for transformative models of policy formulation and governance which more accurately reflect African contexts. Commencing with an analysis of the historical factors that shaped state formation and administrative practices in post-colonial Africa, this article broadly examines how public policy and governance are taught and researched in African institutions.
An evaluation of the adequacy of the African charter on the rights of the child concerning economic crimes in armed conflict
(University of the Western Cape, 2020) Nanima, Robert D
Statistics indicate that at least one in every four African children lives in a conflict zone. Six of the ten worst countries for children to grow up in, or live in, are in Africa: the Central African Republic, the Democratic Republic of Congo, Mali, Nigeria, Somalia and South Sudan. It is widely observed that economic crimes continue to disrupt the political, social and economic fabric of society. This is exacerbated where there is armed conflict and armed groups continue to use children as a tool to benefit them through illegal acts that lead to financial advantages.
Tanzania’s post-independence anti-corruption efforts: Examining the prevention and combatting of corruption bureau’s (pccb) role during Magufuli’s regime
(University of the Western Cape, 2020) Lukiko, Lukiko Vedastus; Kilonzo, Claudi; Kimela, Hasani
During the five years of John Magufuli’s presidency, Tanzania’s anti-corruption efforts yielded significant improvements. This improved performance was associated mainly with the President’s personal anti-corruption stance. Institutions entrusted with fighting corruption, particularly the Prevention and Combating of Corruption Bureau (PCCB), appear to be performing their functions based on the attitude of the incumbent President towards the problem. This creates a risk of personalising anti-corruption instead of institutionalising it. Unfortunately, President Magufuli passed away in March 2021 and the sustainability of his anti-corruption approach is now in question.
The problem of private-to-private corruption
(University of the Western Cape, 2017) Tessema, Marshet Tadesse; Koen, Raymond
Corruption has huge detrimental effects, and private-to-private corruption contributes hugely to this detriment. Its consequences match those of public corruption, particularly in the contemporary world, when private entities not only are becoming more influential but also increasingly are engaged in the dispensing of public functions. Hence, to give more muscle to the war against corruption and for it to bear some fruit, proper attention should be given to confronting corruption within the private sector. Criminalisation is one of the pivotal tools in this regard. This paper explicates the regulation of private-to-private corruption under key international anti-corruption instruments which are relevant in the African context. It also discusses the criminalisation of private sector corruption by the Statute of the African Court of Justice and Human and Peoples’ Rights.
Lobbying against democracy
(University of the Western Cape, 2021) Kollmar, Laura; Koen, Raymond
This essay seeks to excavate the anti-democratic propensities of corporate lobbying. It begins by considering the nature of lobbying and then attempts to comprehend the relationship between corporate lobbying and democracy in terms of Crouch’s theory of post-democracy. The political culture of post-democracy is blatantly corporatist and promotes the anti-democratic proclivities of the corporate lobby by providing ready opportunities for non-transparent lobbying. Cohen-Eliya & Hammer classify non- transparent lobbying as an index of the failure of the democratic process. The essay applies the typology developed by them to Germany as a case study of anti-democratic corporate lobbying in action. It concludes by considering regulation and criminalisation as two possible remedies for the anti-democratic transgressions of non-transparent corporate lobbying. The former is explored by way of an analysis of the regulatory regimes of Germany and the USA; the latter by considering non-transparent corporate lobbying as a homologue of the crime of corruption.
Confronting corruption: past concerns, present challenges and future strategies
(2017) Koen, Raymond
The literature on corruption and anti-corruption has mushroomed over the last decade or so. Of course, all research and writing on the problem of corruption and the fight against it are to be welcomed. Regrettably, however, with volume come fragmentation and specialisation and their concomitant quandaries. Indeed, any person wanting to understand the field would be hard-pressed to find a source or even a manageable bundle of sources which encompasses the crucial issues lucidly and logically. Let it be said upfront that Confronting Corruption by Fritz Heimann and Mark Pieth is not the storied single-volume holdall of definitiveness in the field. No doubt, the authors would be the first to dissociate themselves, smartly and tartly, from any such claim. Be that as it may, theirs remains a rather impressive cornucopia of accumulated knowledge, distilled wisdom and practical know-how. In fewer than 300 pages they manage to give us a fairly holistic delineation of the past, present and future of corruption and anti-corruption. Little wonder that President Jimmy Carter took the time to write the foreword.

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