This article considers harmful practices in Tanzania that violate women’s rights. Most provisions of international human rights treaties that focus primarily on women in Tanzania have not been adequately incorporated into national legislation. Efforts to implement such international treaties are often met with suspicion or hostility from the communities owing to a prevalent patriarchal system and its accompanying customs. Women are systematically being denied their rights to autonomy, health and education with the excuse of ‘harmful practices.’ Although the universality of human rights norms and the right to enjoy one’s own culture and respect for cultural diversity have been challenged, it is undeniable that, whenever a state enters into an agreement with the intention of being governed by international law, that state has a legal obligation to comply with such international law or treaty. This article seeks to explore aspects of existing cultural practices and traditions that need to be abolished to conform to the provisions of international law. It is argued that traditional and cultural practices should adhere to the values of equality and women’s rights and that a strong legal framework is essential for addressing harmful practices.
{"title":"Harmful Practices: An Obstacle in the Realisation of Women’s Rights in Tanzania","authors":"N. Msuya","doi":"10.25159/2522-3062/7284","DOIUrl":"https://doi.org/10.25159/2522-3062/7284","url":null,"abstract":"This article considers harmful practices in Tanzania that violate women’s rights. Most provisions of international human rights treaties that focus primarily on women in Tanzania have not been adequately incorporated into national legislation. Efforts to implement such international treaties are often met with suspicion or hostility from the communities owing to a prevalent patriarchal system and its accompanying customs. Women are systematically being denied their rights to autonomy, health and education with the excuse of ‘harmful practices.’ Although the universality of human rights norms and the right to enjoy one’s own culture and respect for cultural diversity have been challenged, it is undeniable that, whenever a state enters into an agreement with the intention of being governed by international law, that state has a legal obligation to comply with such international law or treaty. This article seeks to explore aspects of existing cultural practices and traditions that need to be abolished to conform to the provisions of international law. It is argued that traditional and cultural practices should adhere to the values of equality and women’s rights and that a strong legal framework is essential for addressing harmful practices.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46057426","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The equalisation of women’s and men’s marital rights is still a challenge for certain countries on the African continent. Although most African countries have adopted supreme constitutions guaranteeing a host of justiciable human rights, the marginalisation and subjugation of women persists. In this article, we engage in a critical review and assessment of two divergent court decisions (one from Swaziland and the other from Kenya) which concern the matrimonial property rights of women. Those cases will be used as the foundation for investigating and evaluating the degree to which Swaziland and Kenya are either enhancing or constraining women’s matrimonial rights. In this article, we also assess the extent to which national constitutional law is being harmonised with existing and recently promulgated legislation and whether the purported synthesis of enacted marriage laws has affected constitutional equality in those specific countries. Additionally, we contend that the promulgation of new legislation and/or the amendment or repeal of unconstitutional legislation is insufficient to advance true equality. The courts or the judiciary, must also perform their remedial and pre-emptive role in the protection, enforcement and promotion of constitutional rights and the facilitation of equality reform. In our opinion, the matrimonial property rights of women in Africa can be equalised and enhanced even in systems of law that remain rooted in traditionalism and which habitually treat women as inferior to men. Such a mammoth undertaking requires a dual commitment and concerted action from both the legislature and the judiciary.
{"title":"A Comparative Juridical Analysis of the Constitutional Advancement of Women’s Matrimonial Property Rights in Swaziland and Kenya","authors":"I. Moodley","doi":"10.25159/2522-3062/8182","DOIUrl":"https://doi.org/10.25159/2522-3062/8182","url":null,"abstract":"The equalisation of women’s and men’s marital rights is still a challenge for certain countries on the African continent. Although most African countries have adopted supreme constitutions guaranteeing a host of justiciable human rights, the marginalisation and subjugation of women persists. In this article, we engage in a critical review and assessment of two divergent court decisions (one from Swaziland and the other from Kenya) which concern the matrimonial property rights of women. Those cases will be used as the foundation for investigating and evaluating the degree to which Swaziland and Kenya are either enhancing or constraining women’s matrimonial rights. In this article, we also assess the extent to which national constitutional law is being harmonised with existing and recently promulgated legislation and whether the purported synthesis of enacted marriage laws has affected constitutional equality in those specific countries. Additionally, we contend that the promulgation of new legislation and/or the amendment or repeal of unconstitutional legislation is insufficient to advance true equality. The courts or the judiciary, must also perform their remedial and pre-emptive role in the protection, enforcement and promotion of constitutional rights and the facilitation of equality reform. In our opinion, the matrimonial property rights of women in Africa can be equalised and enhanced even in systems of law that remain rooted in traditionalism and which habitually treat women as inferior to men. Such a mammoth undertaking requires a dual commitment and concerted action from both the legislature and the judiciary.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45234823","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-13DOI: 10.25159/2522-3062/11291
The Editor
We, the Editors and Publishers of The Comparative and International Law Journal of Southern Africa, have retracted the following article: Laura Ausserladscheider Jonas and Dire Tladi, ‘Individual Criminal Responsibility for the Financing of Entities Involved in Core Crimes: Aiding and Abetting’ 54(1) 2021Comparative and International Law Journal of Southern Africa Following its publication, it was brought to our attention that this article contains significant overlap, in the form of continuous paragraphs and their accompanying footnotes, with the following chapter: Manuel J. Venturas, ‘Aiding and Abetting’ in Jérôme de Hemptinne, Robert Roth, Elies van Sliedregt, Marjolein Cupido, Manuel J. Ventura and Lachezar Yanev (eds), Modes of Liability in International Criminal Law (Cambridge University Press, 2019) The journal article ‘Individual Criminal Responsibility’ reproduced significant parts of the chapter in Modes of Liability without appropriate attributions or citations. The second author, Dire Tladi, has requested to be dissociated from the publication. We have been informed in our decision-making by our policy on publishing ethics and integrity and the COPE guidelines on retractions. The cover page only of the retracted article will remain online to maintain the scholarly record, but it will be digitally watermarked as “Retracted.”
我们是《南部非洲比较法与国际法杂志》的编辑和出版人，已撤回以下文章:Laura Ausserladscheider Jonas和Dire Tladi，“资助涉及核心犯罪的实体的个人刑事责任:《协助与教唆》第54(1)期2021年《南部非洲比较法与国际法杂志》发表后，我们注意到，这篇文章以连续段落及其脚注的形式，与以下章节有很大的重叠:Manuel J. Venturas，“协助和教唆”Jérôme de Hemptinne, Robert Roth, Elies van Sliedregt, Marjolein Cupido, Manuel J. Ventura和Lachezar Yanev(编)，国际刑法中的责任模式(剑桥大学出版社，2019)期刊文章“个人刑事责任”在没有适当归属或引用的情况下复制了责任模式章节的重要部分。第二位作者，Dire Tladi，已要求与该出版物分离。我们的出版道德和诚信政策以及COPE关于撤稿的指导方针已经通知了我们的决策。只有撤稿文章的封面将保留在网上，以保持学术记录，但它将被数字水印标记为“撤稿”。
{"title":"Retraction Notice: ‘Individual Criminal Responsibility for the Financing of Entities Involved in Core Crimes: Aiding and Abetting’","authors":"The Editor","doi":"10.25159/2522-3062/11291","DOIUrl":"https://doi.org/10.25159/2522-3062/11291","url":null,"abstract":"We, the Editors and Publishers of The Comparative and International Law Journal of Southern Africa, have retracted the following article: \u0000Laura Ausserladscheider Jonas and Dire Tladi, ‘Individual Criminal Responsibility for the Financing of Entities Involved in Core Crimes: Aiding and Abetting’ 54(1) 2021Comparative and International Law Journal of Southern Africa \u0000Following its publication, it was brought to our attention that this article contains significant overlap, in the form of continuous paragraphs and their accompanying footnotes, with the following chapter: \u0000Manuel J. Venturas, ‘Aiding and Abetting’ in Jérôme de Hemptinne, Robert Roth, Elies van Sliedregt, Marjolein Cupido, Manuel J. Ventura and Lachezar Yanev (eds), Modes of Liability in International Criminal Law (Cambridge University Press, 2019) The journal article ‘Individual Criminal Responsibility’ reproduced significant parts of the chapter in Modes of Liability without appropriate attributions or citations. \u0000The second author, Dire Tladi, has requested to be dissociated from the publication. \u0000We have been informed in our decision-making by our policy on publishing ethics and integrity and the COPE guidelines on retractions. The cover page only of the retracted article will remain online to maintain the scholarly record, but it will be digitally watermarked as “Retracted.”","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42748715","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The right to development seeks to provide the enabling environment for the participation, contribution and well-being of persons in their freedom to enjoy their socio-economic development. The realisation of the right to development, therefore, imposes a duty on the state to ensure that the basic needs of the people are met without any impairment. The challenge in promoting the quality of life of the people as envisaged in the right to development often falls on a strong public service where accountability is a core component. Misappropriation of allocated funds, especially in the public sector, results in misgovernance of the institutions of state. Africa also struggles with the misappropriation of public funds, which hinders the provision of basic goods and quality services for the well-being of the population. Accountability, therefore, is the rate-determining step to the social, economic, political and cultural development of the people. In this article, the concept of the rate-determining step seeks to eliminate the challenges to the process of development to engender social transformation, with specific reference to Nigeria and South Africa. Rampant corruption and misgovernance in many provinces, especially the Free State, undermine South Africa’s strength in fulfilling its development plans. Nigeria is an oil-rich country, yet the region where the oil is produced remains impoverished. This article focuses on accountability as the essential element in curbing misgovernance and misappropriation and examines the development agenda of these regions and the rate-determining step to the realisation of these development objectives, with a view to advancing a development model that puts the individual at the core of its development programmes and processes.
{"title":"Misappropriated Development: Exploring Accountability as the Rate-determining Step to the Realisation of the Right to Development in Select African Countries","authors":"Rita Ozoemena","doi":"10.25159/2522-3062/9254","DOIUrl":"https://doi.org/10.25159/2522-3062/9254","url":null,"abstract":"The right to development seeks to provide the enabling environment for the participation, contribution and well-being of persons in their freedom to enjoy their socio-economic development. The realisation of the right to development, therefore, imposes a duty on the state to ensure that the basic needs of the people are met without any impairment. The challenge in promoting the quality of life of the people as envisaged in the right to development often falls on a strong public service where accountability is a core component. Misappropriation of allocated funds, especially in the public sector, results in misgovernance of the institutions of state. Africa also struggles with the misappropriation of public funds, which hinders the provision of basic goods and quality services for the well-being of the population. Accountability, therefore, is the rate-determining step to the social, economic, political and cultural development of the people. In this article, the concept of the rate-determining step seeks to eliminate the challenges to the process of development to engender social transformation, with specific reference to Nigeria and South Africa. Rampant corruption and misgovernance in many provinces, especially the Free State, undermine South Africa’s strength in fulfilling its development plans. Nigeria is an oil-rich country, yet the region where the oil is produced remains impoverished. This article focuses on accountability as the essential element in curbing misgovernance and misappropriation and examines the development agenda of these regions and the rate-determining step to the realisation of these development objectives, with a view to advancing a development model that puts the individual at the core of its development programmes and processes.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45507422","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article summarises the judgment in Cooperativa Muratori & Cementisti & others v Companies and Intellectual Property Commission & others, in which the Supreme Court of Appeal confirmed the statutory denial of business rescue to external companies and refused to recognise and apply the Italian restructuring process in South Africa. The article then discusses the private international law (conflict of laws) on the discharge of a contract by a foreign sequestration or liquidation, and the statutory novation of the contract by a foreign pre-insolvency composition or restructuring. Central to the debate over characterisation and choice of law (between contract or insolvency) is the effect of the Gibbs rule, a long-standing feature of the law of the United Kingdom, South Africa, and several other countries, but increasingly controversial because of contemporary ideas of cross-border insolvency law. The article argues for an approach based on contract and company law rather than insolvency law, because pre-insolvency proceedings, by definition, do not involve a winding-up order or a liquidation process, and, if timely and successful, prevent both. The South African private international law on the recognition of a foreign pre-insolvency statutory composition or restructuring as a foreign judgment may thus need to be reconsidered.
本文总结了Cooperativa Muratori & Cementisti & others v Companies and Intellectual Property Commission & others的判决，其中最高上诉法院确认了对外部公司进行商业救助的法定拒绝，并拒绝承认和适用意大利在南非的重组程序。然后，文章讨论了国际私法(法律冲突)关于通过外国扣押或清算解除合同，以及通过外国破产前组成或重组对合同进行法定更新。关于特征和法律选择(在合同或破产之间)的辩论的核心是吉布斯规则的影响，这是英国，南非和其他几个国家法律的长期特征，但由于当代跨境破产法的思想，争议越来越大。本文主张采用一种基于合同法和公司法而不是破产法的方法，因为根据定义，破产前程序不涉及清盘令或清算程序，而且，如果及时和成功，可以防止这两者。因此，关于承认外国破产前法定组成或重组为外国判决的南非国际私法可能需要重新审议。
{"title":"South African Creditors May Wield the Gibbs Rule to Confront an Italian Pre-Insolvency Statutory Restructuring Composition","authors":"Alastair Smith, A. Boraine","doi":"10.25159/2522-3062/9617","DOIUrl":"https://doi.org/10.25159/2522-3062/9617","url":null,"abstract":"This article summarises the judgment in Cooperativa Muratori & Cementisti & others v Companies and Intellectual Property Commission & others, in which the Supreme Court of Appeal confirmed the statutory denial of business rescue to external companies and refused to recognise and apply the Italian restructuring process in South Africa. The article then discusses the private international law (conflict of laws) on the discharge of a contract by a foreign sequestration or liquidation, and the statutory novation of the contract by a foreign pre-insolvency composition or restructuring. Central to the debate over characterisation and choice of law (between contract or insolvency) is the effect of the Gibbs rule, a long-standing feature of the law of the United Kingdom, South Africa, and several other countries, but increasingly controversial because of contemporary ideas of cross-border insolvency law. The article argues for an approach based on contract and company law rather than insolvency law, because pre-insolvency proceedings, by definition, do not involve a winding-up order or a liquidation process, and, if timely and successful, prevent both. The South African private international law on the recognition of a foreign pre-insolvency statutory composition or restructuring as a foreign judgment may thus need to be reconsidered.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42134175","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Under the South African criminal justice system, mentally ill persons in conflict with the law spend long periods awaiting forensic assessment, owing to resource shortages (staff and available beds). Accused persons awaiting forensic assessment are often kept in correctional facilities where mental health care services are lacking. This leaves many accused individuals who are mentally ill at risk of falling between the proverbial cracks of the system. The diversion of the accused with mental illness from the criminal justice system into a treatment programme could address this problem. Currently no such formal diversion option exists in South Africa. Mental health courts as a formal diversion option are gaining popularity in jurisdictions such as Canada and the United States of America, where delays with forensic assessments and, in particular, pre-trial fitness assessments are rife. These courts employ therapeutic jurisprudence to deliver justice. This contribution explores the nature of a mental health court and looks at such courts in Canada and the United States of America and considers whether South Africa could benefit from such a court and whether it would be viable within the South African legislative framework.
{"title":"Considering Mental Health Courts for South Africa: Lessons from Canada and the United States of America","authors":"Letitia Pienaar","doi":"10.25159/2522-3062/9428","DOIUrl":"https://doi.org/10.25159/2522-3062/9428","url":null,"abstract":"Under the South African criminal justice system, mentally ill persons in conflict with the law spend long periods awaiting forensic assessment, owing to resource shortages (staff and available beds). Accused persons awaiting forensic assessment are often kept in correctional facilities where mental health care services are lacking. This leaves many accused individuals who are mentally ill at risk of falling between the proverbial cracks of the system. The diversion of the accused with mental illness from the criminal justice system into a treatment programme could address this problem. Currently no such formal diversion option exists in South Africa. Mental health courts as a formal diversion option are gaining popularity in jurisdictions such as Canada and the United States of America, where delays with forensic assessments and, in particular, pre-trial fitness assessments are rife. These courts employ therapeutic jurisprudence to deliver justice. This contribution explores the nature of a mental health court and looks at such courts in Canada and the United States of America and considers whether South Africa could benefit from such a court and whether it would be viable within the South African legislative framework.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42165215","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Available statistics revealed vulnerable and fragile conditions for women in Africa, including Nigeria. This is due to the persistent violation of their sexual and reproductive health and rights (SRHR), maternal heath rights, choice of spouse and right to determine whether or not to have children and the numbers of children to have, access to contraceptives, etc. These rights are violated due to cultural norms, medical negligence, lack of access to social and economic resources, etc. If this condition is left to fester, Nigerian women may never attain their full potential and capabilities to develop because of the links that exist between sexual and reproductive health and rights and equality, empowerment, economic growth and development. There is, therefore, a need to strengthen this fragile condition through the effective implementation and enforcement of international, regional and national laws relating to SRHR. Rights litigation strategy is an acknowledged tool of empowerment and transformation in this regard. Consequently, this article examines SRHR of women in Nigeria, highlighting the challenges with litigating cases involving SRHR. Also, the article considers the prospects for litigation through a comparative study of selected jurisdictions in order to explore how they have engaged with similar situations and challenges of litigating SRHR and to identify lessons for Nigerian courts.
{"title":"Challenges and Prospects of Litigating Sexual and Reproductive Health and Rights of Women in Nigeria: Lessons from Comparative Foreign Jurisprudence","authors":"A. Akintayo","doi":"10.25159/2522-3062/7662","DOIUrl":"https://doi.org/10.25159/2522-3062/7662","url":null,"abstract":"Available statistics revealed vulnerable and fragile conditions for women in Africa, including Nigeria. This is due to the persistent violation of their sexual and reproductive health and rights (SRHR), maternal heath rights, choice of spouse and right to determine whether or not to have children and the numbers of children to have, access to contraceptives, etc. These rights are violated due to cultural norms, medical negligence, lack of access to social and economic resources, etc. If this condition is left to fester, Nigerian women may never attain their full potential and capabilities to develop because of the links that exist between sexual and reproductive health and rights and equality, empowerment, economic growth and development. There is, therefore, a need to strengthen this fragile condition through the effective implementation and enforcement of international, regional and national laws relating to SRHR. Rights litigation strategy is an acknowledged tool of empowerment and transformation in this regard. Consequently, this article examines SRHR of women in Nigeria, highlighting the challenges with litigating cases involving SRHR. Also, the article considers the prospects for litigation through a comparative study of selected jurisdictions in order to explore how they have engaged with similar situations and challenges of litigating SRHR and to identify lessons for Nigerian courts.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43301318","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article discusses the various scholarly critiques of the South African Constitutional Court judgment in Law Society of South Africa & Others v President of the Republic of South Africa & Others. While we discuss and analyse the articles by some of the scholars who have critiqued the decision, we pay more attention to the criticism by Tladi in particular. We point out that Tladi failed to properly locate the main basis of the Constitutional Court’s decision. We also disagree with Tladi’s assertion that the SADC Treaty and the 2000 Tribunal Protocol could be amended through any means other than the three-quarters majority of the SADC Summit as required by the SADC Treaty. Further, we disagree with Tladi’s view that the doctrine of subsequent practice is applicable in this case and that it was correctly applied in the adoption of the 2014 Tribunal Protocol.
{"title":"The South African Constitutional Court Judgment Concerning the Suspension of SADC Tribunal: Critiquing the Critics of the Constitutional Court","authors":"Mkhululi Nyathi, Moses Retselisitsoe Phooko","doi":"10.25159/2522-3062/9506","DOIUrl":"https://doi.org/10.25159/2522-3062/9506","url":null,"abstract":"This article discusses the various scholarly critiques of the South African Constitutional Court judgment in Law Society of South Africa & Others v President of the Republic of South Africa & Others. While we discuss and analyse the articles by some of the scholars who have critiqued the decision, we pay more attention to the criticism by Tladi in particular. We point out that Tladi failed to properly locate the main basis of the Constitutional Court’s decision. We also disagree with Tladi’s assertion that the SADC Treaty and the 2000 Tribunal Protocol could be amended through any means other than the three-quarters majority of the SADC Summit as required by the SADC Treaty. Further, we disagree with Tladi’s view that the doctrine of subsequent practice is applicable in this case and that it was correctly applied in the adoption of the 2014 Tribunal Protocol.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43626353","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
South Africa has a history of violent industrial strikes, with authorities seemingly unable to exert control. The existing remedies in the form of an interdict and advisory arbitration awards do not appear to address violence during strikes. Violent and lengthy strikes affect members of the public and have long-term effects on the economy, resulting in loss of employment and poverty. Since South Africa does not have the legal mechanisms to deal with or curb violent strikes, this article submits that lessons could be drawn from foreign law on how to deal with these strikes. In this article, Australia is the foreign jurisdiction from which lessons are drawn. This article commences with a comparative analysis of industrial action between Australia and South Africa to answer the question of whether violent strike action is unique to South Africa. The article establishes that the Fair Works Commission (FWC): Australia’s National Workplace Relations Tribunal can suspend or terminate industrial action that is characterised by violence. It then suggests that part of Australian labour law could be transplanted into South African labour law to combat strike-related violence. The article suggests that the Labour Relations Act 66 of 1995 (LRA) should be amended to include a provision that will empower the Labour Court to suspend or terminate industrial action once it turns violent, thus benefitting the economy and preventing job losses.
{"title":"Investigating the Possibility of Suspending or Terminating a Strike on Account of Violent Conduct: Transplanting Lessons from Australia","authors":"M. Tenza","doi":"10.25159/2522-3062/8529","DOIUrl":"https://doi.org/10.25159/2522-3062/8529","url":null,"abstract":"South Africa has a history of violent industrial strikes, with authorities seemingly unable to exert control. The existing remedies in the form of an interdict and advisory arbitration awards do not appear to address violence during strikes. Violent and lengthy strikes affect members of the public and have long-term effects on the economy, resulting in loss of employment and poverty. Since South Africa does not have the legal mechanisms to deal with or curb violent strikes, this article submits that lessons could be drawn from foreign law on how to deal with these strikes. In this article, Australia is the foreign jurisdiction from which lessons are drawn. This article commences with a comparative analysis of industrial action between Australia and South Africa to answer the question of whether violent strike action is unique to South Africa. The article establishes that the Fair Works Commission (FWC): Australia’s National Workplace Relations Tribunal can suspend or terminate industrial action that is characterised by violence. It then suggests that part of Australian labour law could be transplanted into South African labour law to combat strike-related violence. The article suggests that the Labour Relations Act 66 of 1995 (LRA) should be amended to include a provision that will empower the Labour Court to suspend or terminate industrial action once it turns violent, thus benefitting the economy and preventing job losses.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43624340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The world is changing rapidly. The globalisation of economies and rapid technological change severely impact all nations. Trade unions, collective bargaining, and labour legislation in all states have struggled to keep pace with change, yet they must do so. Many workers will join the unemployment ‘congregation’ as some of the skills we need now and for the future do not yet exist. This poses serious challenges for the provision of employment and training. Several new research studies released by the ILO have examined the ramifications of globalisation and the effects of a fast-changing world of work on unemployment and the protection of vulnerable workers. A key finding is that policies to protect vulnerable workers more effectively will be fundamental if countries are to respond to the challenges raised by globalisation and, more recently the Covid-19 pandemic, to develop the new skills required to maximise economic potential. This article also interrogates the current role played by trade unions and collective bargaining in protecting marginalised and vulnerable workers in South Africa. It also finds that the role played by trade unions and collective bargaining in protecting marginalised workers is declining.
{"title":"The Changing World of Work and Further Marginalisation of Workers in South Africa: An Evaluation of the Relevance of Trade Unions and Collective Bargaining","authors":"William Manga Mokofe","doi":"10.25159/2522-3062/8188","DOIUrl":"https://doi.org/10.25159/2522-3062/8188","url":null,"abstract":"The world is changing rapidly. The globalisation of economies and rapid technological change severely impact all nations. Trade unions, collective bargaining, and labour legislation in all states have struggled to keep pace with change, yet they must do so. Many workers will join the unemployment ‘congregation’ as some of the skills we need now and for the future do not yet exist. This poses serious challenges for the provision of employment and training. Several new research studies released by the ILO have examined the ramifications of globalisation and the effects of a fast-changing world of work on unemployment and the protection of vulnerable workers. A key finding is that policies to protect vulnerable workers more effectively will be fundamental if countries are to respond to the challenges raised by globalisation and, more recently the Covid-19 pandemic, to develop the new skills required to maximise economic potential. This article also interrogates the current role played by trade unions and collective bargaining in protecting marginalised and vulnerable workers in South Africa. It also finds that the role played by trade unions and collective bargaining in protecting marginalised workers is declining.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47884948","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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