Pub Date : 2023-11-08DOI: 10.17159/2077-4907/2023/ldd.v27.12
Kamalesh Newaj
Migration has become a global phenomenon and South Africa, like many other countries, is a recipient of migrant workers. Migrant workers can be classified under five categories: permanent residents, refugees, asylum seekers, temporary residents, and undocumented migrants. This article focuses on documented migrants and their right to engage in work. Integral to the right to work is the right to choose one's trade, occupation or profession freely. This is a constitutionally protected right, but is reserved exclusively for citizens, which implies that migrant workers can be lawfully excluded from working in certain occupations or professions. This ties in with South Africa's obligation to protect employment opportunities for citizens. However, South Africa has immigration laws in place that afford substantial rights to certain categories of migrants. Furthermore, as a member of the UN and International Labour Organisation (ILO), South Africa has certain international law obligations. Against this backdrop, this article engages with the recent Constitutional Court decision of Rafoneke v Minister of Justice and Correctional Services where temporary residents were denied the right to be admitted to practise and be authorised to be enrolled as legal practitioners. The article seeks to establish whether this decision, which has been viewed as disappointing, complies with international law and upholds the legal principles endorsed in preceding cases.
{"title":"Limitations on the rights of migrant workers: Is a compliant and consistent approach being followed?","authors":"Kamalesh Newaj","doi":"10.17159/2077-4907/2023/ldd.v27.12","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.12","url":null,"abstract":"Migration has become a global phenomenon and South Africa, like many other countries, is a recipient of migrant workers. Migrant workers can be classified under five categories: permanent residents, refugees, asylum seekers, temporary residents, and undocumented migrants. This article focuses on documented migrants and their right to engage in work. Integral to the right to work is the right to choose one's trade, occupation or profession freely. This is a constitutionally protected right, but is reserved exclusively for citizens, which implies that migrant workers can be lawfully excluded from working in certain occupations or professions. This ties in with South Africa's obligation to protect employment opportunities for citizens. However, South Africa has immigration laws in place that afford substantial rights to certain categories of migrants. Furthermore, as a member of the UN and International Labour Organisation (ILO), South Africa has certain international law obligations. Against this backdrop, this article engages with the recent Constitutional Court decision of Rafoneke v Minister of Justice and Correctional Services where temporary residents were denied the right to be admitted to practise and be authorised to be enrolled as legal practitioners. The article seeks to establish whether this decision, which has been viewed as disappointing, complies with international law and upholds the legal principles endorsed in preceding cases.","PeriodicalId":489270,"journal":{"name":"Law, Democracy & Development","volume":"51 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135431820","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 : 2023-11-08DOI: 10.17159/2077-4907/2023/ldd.v27.11
Errol C Muller, Cornelis F Swanepoel
The incidence and extent of medico-legal claims in South Africa has increased exponentially over the past number of years. Conventionally, medical negligence claims follow the civil litigation route, while alternative, perhaps better-suited, dispute resolution techniques and mechanisms are seldom considered. Where the occasional disputant does opt for mediation instead of civil litigation, mediators are not adequately versed in the human behavioural factors of conflict, even though these are crucial in establishing an appropriate strategy to de-escalate conflict and achieve settlement. Paying particular attention to medical negligence claims, this article draws on interdisciplinary sources to propose practical guidelines for mediators, whether existing or aspirant, to develop their mediation styles and strategies with regard to the thought processes and psychological factors behind disputes. This occurs against the backdrop of the current failure by formal legal education and vocational training curriculums to equip lawyers and mediators with even a basic understanding of the anatomy of human conflict. Incorporating such teaching into our curriculums could go a long way towards greater and more effective use of mediation to settle disputes, instead of summarily opting for the adversarial, costly and time-consuming route of civil litigation.
{"title":"Advocating for mediation as a way to de-escalate conflict, with a focus on medico-legal claims: The anatomy of human conflict","authors":"Errol C Muller, Cornelis F Swanepoel","doi":"10.17159/2077-4907/2023/ldd.v27.11","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.11","url":null,"abstract":"The incidence and extent of medico-legal claims in South Africa has increased exponentially over the past number of years. Conventionally, medical negligence claims follow the civil litigation route, while alternative, perhaps better-suited, dispute resolution techniques and mechanisms are seldom considered. Where the occasional disputant does opt for mediation instead of civil litigation, mediators are not adequately versed in the human behavioural factors of conflict, even though these are crucial in establishing an appropriate strategy to de-escalate conflict and achieve settlement. Paying particular attention to medical negligence claims, this article draws on interdisciplinary sources to propose practical guidelines for mediators, whether existing or aspirant, to develop their mediation styles and strategies with regard to the thought processes and psychological factors behind disputes. This occurs against the backdrop of the current failure by formal legal education and vocational training curriculums to equip lawyers and mediators with even a basic understanding of the anatomy of human conflict. Incorporating such teaching into our curriculums could go a long way towards greater and more effective use of mediation to settle disputes, instead of summarily opting for the adversarial, costly and time-consuming route of civil litigation.","PeriodicalId":489270,"journal":{"name":"Law, Democracy & Development","volume":"51 s28","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135431822","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 : 2023-11-08DOI: 10.17159/2077-4907/2023/ldd.v27.14
Davy Rammila
The National Health Insurance Bill proposes to establish a national health insurance scheme that aims to provide universal access to health-care services for everyone. Section 33 of the Bill also proposes to limit the provision of parallel services by medical schemes if such services are provided or covered by the tabled NHI scheme. The establishment of the NHI scheme is likely to have a negative effect on the existing access rights of general private health-care users, particularly members of medical schemes. The NHI scheme may enhance access to and the quality of health-care services for millions; however, enabling large portions of the population to access services currently provided by costly private practitioners - services at present almost exclusive to a minority - is not without its perils. It risks negatively impacting on existing access rights and reducing the quality currently enjoyed by users of private health-care services. The propriety of these potential infringements is not necessarily suspect, and may in fact be justifiable. However, this contribution argues that the limitation proposed under section 33 of the NHI Bill is cause for concern. The contribution explores the state's constitutional duty to observe and respect the right of members of medical schemes to access health-care services. It uncovers the constitutional shortcomings of the limitation, and argues that it does not appear to serve any particular legitimate economic or legal purpose.
{"title":"Evaluating the potential impact of National Health Insurance on medical scheme members' rights to have access to health-care services in South Africa","authors":"Davy Rammila","doi":"10.17159/2077-4907/2023/ldd.v27.14","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.14","url":null,"abstract":"The National Health Insurance Bill proposes to establish a national health insurance scheme that aims to provide universal access to health-care services for everyone. Section 33 of the Bill also proposes to limit the provision of parallel services by medical schemes if such services are provided or covered by the tabled NHI scheme. The establishment of the NHI scheme is likely to have a negative effect on the existing access rights of general private health-care users, particularly members of medical schemes. The NHI scheme may enhance access to and the quality of health-care services for millions; however, enabling large portions of the population to access services currently provided by costly private practitioners - services at present almost exclusive to a minority - is not without its perils. It risks negatively impacting on existing access rights and reducing the quality currently enjoyed by users of private health-care services. The propriety of these potential infringements is not necessarily suspect, and may in fact be justifiable. However, this contribution argues that the limitation proposed under section 33 of the NHI Bill is cause for concern. The contribution explores the state's constitutional duty to observe and respect the right of members of medical schemes to access health-care services. It uncovers the constitutional shortcomings of the limitation, and argues that it does not appear to serve any particular legitimate economic or legal purpose.","PeriodicalId":489270,"journal":{"name":"Law, Democracy & Development","volume":"51 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135431821","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 : 2023-11-08DOI: 10.17159/2077-4907/2023/ldd.v27.18
John C Mubangizi
The importance of democracy and the rule of law cannot be overemphasised, as they create an environment in which a country can promote development, protect its citizens, and ensure equal access to justice for all. The two are closely linked to each other: the rule of law is necessary for any democracy to function. However, the degree to which these ideals are achieved varies from country to country and depends on numerous internal and external factors. This article explores the extent to which Uganda and South Africa have achieved these ideals and the comparative lessons that the two countries could learn from each other. It begins by placing the concepts of democracy and rule of law in proper context, after which it explains the rationale for comparing the two countries, provides historical context, and looks at the current realities in these countries. Comparative lessons are then drawn. The general conclusion is that the experiences of Uganda and South Africa demonstrate the importance of maintaining the rule of law and ensuring democratic accountability. It is further concluded that they highlight the challenges to, and opportunities for, promoting democracy and the rule of law.
{"title":"Democracy and the rule of law: Comparative lessons between Uganda and South Africa","authors":"John C Mubangizi","doi":"10.17159/2077-4907/2023/ldd.v27.18","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.18","url":null,"abstract":"The importance of democracy and the rule of law cannot be overemphasised, as they create an environment in which a country can promote development, protect its citizens, and ensure equal access to justice for all. The two are closely linked to each other: the rule of law is necessary for any democracy to function. However, the degree to which these ideals are achieved varies from country to country and depends on numerous internal and external factors. This article explores the extent to which Uganda and South Africa have achieved these ideals and the comparative lessons that the two countries could learn from each other. It begins by placing the concepts of democracy and rule of law in proper context, after which it explains the rationale for comparing the two countries, provides historical context, and looks at the current realities in these countries. Comparative lessons are then drawn. The general conclusion is that the experiences of Uganda and South Africa demonstrate the importance of maintaining the rule of law and ensuring democratic accountability. It is further concluded that they highlight the challenges to, and opportunities for, promoting democracy and the rule of law.","PeriodicalId":489270,"journal":{"name":"Law, Democracy & Development","volume":"51 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135431823","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 : 2023-11-08DOI: 10.17159/2077-4907/2023/ldd.v27.15
Puleng Relebohile Letsie, Charles Ngwena
Poor health, social exclusion, and stigma are usually associated with adolescent pregnancy and parenting, resulting in girls' suspension and, in some instances, expulsion from school. While most African states, including Lesotho, have laws and policies protecting the rights of all children, including adolescents, to enroll and be retained in school, implementation is lagging behind. Using a socio-legal approach, the article explores the challenges in implementing policies and guidelines on school re-entry following pregnancy and/or parenthood, with particular reference to Lesotho. It argues that, despite the adoption of enabling laws and policies protecting sexual and reproductive health rights, and the right to education of pregnant and parenting adolescent girls, punitive and discriminatory practices continue to serve as barriers that undermine countries' human rights commitments. The barriers are attributable to the influences of family, societal, religious and cultural beliefs and practices. To address these barriers, this article proposes comprehensive, innovative, gender-transformative, targeted and rights-based interventions, and supportive policies and strategies, to facilitate continuous awareness-raising, social and attitudinal change, and social justice.
{"title":"Protecting the human rights of pregnant and parenting adolescents in Lesotho: 'What's culture got to do with it?'","authors":"Puleng Relebohile Letsie, Charles Ngwena","doi":"10.17159/2077-4907/2023/ldd.v27.15","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.15","url":null,"abstract":"Poor health, social exclusion, and stigma are usually associated with adolescent pregnancy and parenting, resulting in girls' suspension and, in some instances, expulsion from school. While most African states, including Lesotho, have laws and policies protecting the rights of all children, including adolescents, to enroll and be retained in school, implementation is lagging behind. Using a socio-legal approach, the article explores the challenges in implementing policies and guidelines on school re-entry following pregnancy and/or parenthood, with particular reference to Lesotho. It argues that, despite the adoption of enabling laws and policies protecting sexual and reproductive health rights, and the right to education of pregnant and parenting adolescent girls, punitive and discriminatory practices continue to serve as barriers that undermine countries' human rights commitments. The barriers are attributable to the influences of family, societal, religious and cultural beliefs and practices. To address these barriers, this article proposes comprehensive, innovative, gender-transformative, targeted and rights-based interventions, and supportive policies and strategies, to facilitate continuous awareness-raising, social and attitudinal change, and social justice.","PeriodicalId":489270,"journal":{"name":"Law, Democracy & Development","volume":"52 s37","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135430935","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 : 2023-11-08DOI: 10.17159/2077-4907/2023/ldd.v27.16
Sarah Fick
The Constitutional Court, in Voice of the Unborn Baby NPC v Minister of Home Affairs, was faced with a request to recognise a constitutionally protected right to bury a deceased previable foetus. This is a sensitive topic, since many persons who lose a foetus in utero wish to bury the remains for personal or religious purposes. Prior to this case, the general understanding was that such burials were prohibited in terms of the Births and Deaths Registration Act (BADRA), which allows the burial only of viable foetuses. The case, therefore, turned on whether BADRA permits the burial of a deceased previable foetus and, if not, whether this is unconstitutional. The applicants requested that the court declare that prospective parents have a right to bury their previable foetuses. The High Court found that BADRA does not allow such burials, and that this is unconstitutional. The Constitutional Court, however, found that BADRA does not prohibit such burials, since such deaths are not covered by the Act at all. This article discusses the lacuna that the Constitutional Court's decision created. It specifically considers whether such a right is protected in the Bill of Rights, and what the current law is regarding the burial ofpreviable foetuses, given the finding that this matter is not covered by BADRA.
{"title":"Do prospective parents have a right to bury their deceased previable foetuses? A discussion of how the Constitutional Court has created great legal uncertainty","authors":"Sarah Fick","doi":"10.17159/2077-4907/2023/ldd.v27.16","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.16","url":null,"abstract":"The Constitutional Court, in Voice of the Unborn Baby NPC v Minister of Home Affairs, was faced with a request to recognise a constitutionally protected right to bury a deceased previable foetus. This is a sensitive topic, since many persons who lose a foetus in utero wish to bury the remains for personal or religious purposes. Prior to this case, the general understanding was that such burials were prohibited in terms of the Births and Deaths Registration Act (BADRA), which allows the burial only of viable foetuses. The case, therefore, turned on whether BADRA permits the burial of a deceased previable foetus and, if not, whether this is unconstitutional. The applicants requested that the court declare that prospective parents have a right to bury their previable foetuses. The High Court found that BADRA does not allow such burials, and that this is unconstitutional. The Constitutional Court, however, found that BADRA does not prohibit such burials, since such deaths are not covered by the Act at all. This article discusses the lacuna that the Constitutional Court's decision created. It specifically considers whether such a right is protected in the Bill of Rights, and what the current law is regarding the burial ofpreviable foetuses, given the finding that this matter is not covered by BADRA.","PeriodicalId":489270,"journal":{"name":"Law, Democracy & Development","volume":"51 s29","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135432001","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 : 2023-11-08DOI: 10.17159/2077-4907/2023/ldd.v27.17
Mohamed Hoosain Sungay
There is a common belief that women's rights and Islamic Sharfah law (finding its basis in the Holy Qur'an and the Prophetic teachings) are intrinsically at odds with one another. The 2:1 ratio of inheritance in favour of the male, which is enshrined in the Holy Qur'an, is the subject of this article's investigation into whether the Islamic law of succession discriminates against women. The paper explores the justification for this controversial rule, and further indicates that it is merely a general rule, not an absolute one. To address the main query of this article, a range of primary and secondary sources that cover various facets of this rule and its implementation are relied upon. The article demonstrates that, contrary to popular belief and much beyond what "modern civilisation" has provided, Sharfah law grants women far more rights than might initially be thought to exist.
{"title":"Do women face discrimination under the Islamic law of succession? An examination of the male-preferential 2:1 rule of inheritance","authors":"Mohamed Hoosain Sungay","doi":"10.17159/2077-4907/2023/ldd.v27.17","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.17","url":null,"abstract":"There is a common belief that women's rights and Islamic Sharfah law (finding its basis in the Holy Qur'an and the Prophetic teachings) are intrinsically at odds with one another. The 2:1 ratio of inheritance in favour of the male, which is enshrined in the Holy Qur'an, is the subject of this article's investigation into whether the Islamic law of succession discriminates against women. The paper explores the justification for this controversial rule, and further indicates that it is merely a general rule, not an absolute one. To address the main query of this article, a range of primary and secondary sources that cover various facets of this rule and its implementation are relied upon. The article demonstrates that, contrary to popular belief and much beyond what \"modern civilisation\" has provided, Sharfah law grants women far more rights than might initially be thought to exist.","PeriodicalId":489270,"journal":{"name":"Law, Democracy & Development","volume":"52 s38","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135430933","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 : 2023-11-08DOI: 10.17159/2077-4907/2023/ldd.v27.13
Anzanilufuno Munyai, Jean-claude N Ashukem
AAFrom ancient to modern times, corruption has plagued human civilisation. Its existence confirms that it has been integrated into the social fabric of global society and become a vice of governance. Corruption has dual implications: the direct financial benefit for the perpetrators due to the misuse of entrusted power, which raises the issue of accountability; and the deprivation to society of the allocation of resources. Political corruption results in large amounts of public funds being systematically siphoned off at the expense of society, and against the dictates of the constitutional values of transparency and accountability. For South Africa and Cameroon, political corruption continues to impede growth and development, despite the prevalence of anti-corruption mechanisms in these countries. From a comparative perspective, we investigate the scale and consequence of political corruption in South Africa and Cameroon to analyse the existing anti-corruption mechanisms, strategies and regimes in the two countries in combatting political corruption. We further analyse how and to what extent courts, particularly the Special Crime Court in Cameroon, have been able to address the issue. Furthermore, we demonstrate the similarities between high-level abuse of power in South Africa and Cameroon, notwithstanding existing anticorruption mechanisms. We conclude that a proactive system of checks and balances is urgently required to quench the growing cancerous phenomenon of political corruption in Africa, specifically in Cameroon and South Africa.
{"title":"The political economy of political corruption in 21st century Africa: Perspectives from Cameroon and South Africa","authors":"Anzanilufuno Munyai, Jean-claude N Ashukem","doi":"10.17159/2077-4907/2023/ldd.v27.13","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.13","url":null,"abstract":"AAFrom ancient to modern times, corruption has plagued human civilisation. Its existence confirms that it has been integrated into the social fabric of global society and become a vice of governance. Corruption has dual implications: the direct financial benefit for the perpetrators due to the misuse of entrusted power, which raises the issue of accountability; and the deprivation to society of the allocation of resources. Political corruption results in large amounts of public funds being systematically siphoned off at the expense of society, and against the dictates of the constitutional values of transparency and accountability. For South Africa and Cameroon, political corruption continues to impede growth and development, despite the prevalence of anti-corruption mechanisms in these countries. From a comparative perspective, we investigate the scale and consequence of political corruption in South Africa and Cameroon to analyse the existing anti-corruption mechanisms, strategies and regimes in the two countries in combatting political corruption. We further analyse how and to what extent courts, particularly the Special Crime Court in Cameroon, have been able to address the issue. Furthermore, we demonstrate the similarities between high-level abuse of power in South Africa and Cameroon, notwithstanding existing anticorruption mechanisms. We conclude that a proactive system of checks and balances is urgently required to quench the growing cancerous phenomenon of political corruption in Africa, specifically in Cameroon and South Africa.","PeriodicalId":489270,"journal":{"name":"Law, Democracy & Development","volume":"51 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135432002","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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