Law, Democracy and Development最新文献

{"title":"The constitutional implications of pension deductions under the Pension Funds Act of Lesotho: A comparative analysis","authors":"Mtendeweka Mhango, K. Mosito","doi":"10.17159/2077-4907/2023/ldd.v27.7","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.7","url":null,"abstract":"This article discusses the constitutional implications of pension deductions in the kingdoms of Eswatini and Lesotho. The article is based on a constitutional problem that arose in Government of Eswatini v Mhlanga, where the Supreme Court declared section 32(2) of the Retirement Funds Act 2005 unconstitutional on the grounds that it conflicted with the Constitution. Two decisions in the case - a majority and a minority decision - will be discussed for the purposes of applying them to Lesotho. The article considers comparative questions, including whether the newly enacted section 33(d) of Lesotho's Pension Funds Act 5 of 2019 potentially offends the Constitution of Lesotho in the same way as the majority judgment found in Mhlanga. The article recommends that, when called upon, the judiciary in Lesotho should interpret section 33(d) of the Pension Funds Act in line with the minority judgment in Mhlanga.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123888761","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}

{"title":"An overview of categories of vulnerability among on-demand workers in the gig economy (Part 2)","authors":"D. M. Smit, Grey Stopforth","doi":"10.17159/2077-4907/2023/ldd.v27.6","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.6","url":null,"abstract":"Platform work in the gig economy has become a universal phenomenon, even more so in the socially distanced landscape of COVID-19. Characteristic of the Fourth Industrial Revolution, hundreds of thousands of on-demand workers across the globe today earn a living by performing tasks assigned to them via digital platforms. The gig economy undoubtedly offers certain appealing benefits, including work flexibility and independence. As established in part 1 of this article, platform work holds vast potential to create much-needed jobs, especially for the youth, who are facing a higher degree of job precarity than any generation before them. At the same time, though, the very structure of platform work - with a peculiar triangular contracting relationship between the parties involved -renders on-demand workers vulnerable, having to carry most of the risk. In part 2, we delve deeper into the various forms of vulnerability among on-demand workers in the gig economy, with a particular focus on developing countries such as South Africa. After a brief look at the extent to which the classification of labour could be regarded as a contributing factor to vulnerability, we draw on the International Labour Organisation (ILO) definition of vulnerability to categorise the types of vulnerability on-demand gig workers are exposed to. Four broad categories are identified, namely vulnerability relating to conditions of employment, individual and collective labour rights, dispute resolution structures, and social security protection. Each category is concretised by a brief discussion of the applicable South African statutory provisions as well as practical examples. This is followed by an overview of various international standards and recent steps taken by the ILO and the European Union to protect platform workers in the gig economy. The article concludes with proposals on how to expand the traditional idea and categories of work in an effort to afford rights and protection - and so provide decent work - to new, future-oriented types of workers in South Africa. It is argued that South Africa needs to develop a uniquely South African approach to the future of work that has on-demand workers and their vulnerabilities at its centre.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130816848","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}

{"title":"The right of access to information vs the right to privacy in Tiso Blackstar Group (Pty) Ltd & Others v Steinhoff International Holdings N.V. (18706/2019) [2022] ZAWCHC 265 (10 May 2022)","authors":"S. Phiri","doi":"10.17159/2077-4907/2023/ldd.v27.10","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.10","url":null,"abstract":"The Bill of Rights in chapter 2 of the Constitution of the Republic of South Africa of 1996 (the Constitution) guarantees everyone a number of fundamental rights and freedoms, inter alia the right to privacy and the right of access to information, as envisaged in sections 14 and 32, respectively. The right to privacy and the right of access to information are the obverse and reverse sides of the same coin that the courts often deliberate on. The Promotion of Access to Information Act 2 of2000 (PAIA) was promulgated in terms of section 32(2) of the Constitution. In Tiso Blackstar Group (Pty) Ltd and Others (the applicants) v Steinhoff International Holdings N.V. (the respondent) (18706/2019) [2022] ZAWCHC 265 (10 May 2022) (Tiso), the applicants approached the Western Cape High Court Division in terms of the Constitution and PAIA to enforce the right of access to information against the respondent's right to privacy on the alleged ground of legal privilege. This article examines the manner in which the court addressed the question of the fulfilment of the applicants' right of access to information as per the Constitution and the provisions of PAIA vis-ä-vis the protection of the right to privacy of the respondent company as guaranteed by the Constitution. This article demonstrates that the courts do not hesitate to limit the right to privacy where the statutory requirements justifying the limitation and the burden of proof lie on the party alleging the existence of the right.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114921813","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}

{"title":"Reflections on the justiciability of the \"national security\" clause as stipulated by section 18A of the Competition Act 89 of 1998: Lessons from Russia - Measures Concerning Traffic in Transit WTO Panel Decision","authors":"Simbarashe Tavuyanago, Clive Vinti","doi":"10.17159/2077-4907/2023/ldd.v27.9","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.9","url":null,"abstract":"This article discusses the justiciability of the national security clause of the Competition Act 89 of 1998, which was introduced through recent amendments to the merger regulation framework The clause provides for the executive, through the establishment of a national security committee, to intervene in mergers which may pose a threat to national security interests of the country. The national security committee will have authority to determine whether a proposed merger may be approved, approved subject to conditions, or prohibited. International practice does permit national security concerns as one of the public interest considerations in the assessments of a merger involving a foreign firm. However, section 18A of the Competition Act fails to provide a clear guideline for recourse for parties to a merger that has been deemed to be in contravention of the provision. Consequently, this article assesses the justiciability of the national security clause in section 18A of the Competition Act by advancing the approach of the WTO Panel in Russia - Measures Concerning Traffic in Transit. In the light of this, it is our view that the decision of the national security committee to prohibit a merger based on national security interests could be challenged by an aggrieved party, even though the Act makes no provision for such a scenario on the grounds of the correlative principles of rule of law, legality and legal certainty, as well as the inherent jurisdiction of our higher (in relative terms) courts.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121528050","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}

{"title":"Multiple discrimination experienced by women with disabilities in the workplace in South Africa","authors":"Yvette Basson","doi":"10.17159/2077-4907/2023/ldd.v27.8","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.8","url":null,"abstract":"Persons with disabilities have historically been members of one of the most marginalised groups in society. Access to employment has been a major barrier to the socio-economic empowerment of those with disabilities. The intersection of gender- and disability-based unfair discrimination is not yet widely recognised, and it may not be as familiar as traditional concepts of discrimination. This intersection is important however, because it may affect the participation of women with disabilities in various aspects of society. There is growing recognition that women with disabilities face greater barriers against full participation in society, since they must overcome unfair discrimination related to both their gender and their disabilities. The aim of this article is to examine whether the current South African legislative framework relating to women with disabilities in the workplace recognises multiple discrimination and takes steps to eliminate or counter it. To this end, the compounding effect of gender and disability will be explained, and the impact of this multiple discrimination on women with disabilities seeking or currently in employment will be analysed. In addition, socio-economic factors in South Africa will be considered, along with their impact on employment opportunities for women with disabilities.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130929098","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}

{"title":"Disarming the dispirited South African: A critical analysis of the proposed ban on firearms for self-defence","authors":"W. Nortje, Shane Hull","doi":"10.17159/2077-4907/2023/ldd.v27.5","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.5","url":null,"abstract":"In South Africa, owning a firearm is a privilege and not a right. This privilege is regulated by the Firearms Control Act 60 of 2000. In May 2021, the Minister of Police published the Firearms Control Amendment Bill (FCAB), 2021, which contains a section prohibiting individuals from obtaining a firearm for self-defence purposes. This article challenges this view and argues that firearm owners should not be banned from protecting their right to life with a firearm. It looks at the reasons why the Bill was published as well as its purposes. The enactment of such a Bill would have severe consequences for individuals who want to protect their constitutional rights in a country with one of the highest crime rates in the world. Consequently, the article also examines the impact the proposed prohibition would have on self-defence by means of a firearm. Furthermore, the South African Police Service (SAPS) is reluctant to address its own challenges, which have contributed significantly to the proliferation of unlicensed firearms. The supply of firearms by SAPS to criminals will be examined and recommendations made for addressing the dilemma faced by SAPS. SAPS should rectify and professionalise its firearm regime instead of disarming South Africans, who are desperately in need of a peaceful society. Finally, proposals are made as to how firearm control could be improved.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130838811","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}

{"title":"The right to privacy in the decrmimalisatioii of psilocybin mushrooms in South Africa","authors":"Sebastian William Foster","doi":"10.17159/2077-4907/2023/ldd.v27.1","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.1","url":null,"abstract":"This article assesses the right to privacy as a ground for challenging the constitutionality of the criminalisation of psilocybin mushrooms. In doing so, it discusses the right to privacy as found in section 14 of the Constitution of the Republic of South Africa, 1996 (Constitution). Drawing on Constitutional Court case law, the article argues that the right to privacy is a fundamental right that deserves paramount protection, even in instances where individuals engage in illicit activities within the confines of their personal realm of privacy. Accordingly, the prohibiting laws, notably the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Act 101 of 1965, do prima facie limit an individual's right to privacy, and therefore an analysis in terms of section 36 of the Constitution is necessary. A section-36 limitations analysis is accordingly presented, through which it is concluded that the nature and importance of the limited right outweighs the importance and purpose of the criminalisation. This paper argues that the current articles of legislation, which criminalise psilocybin mushrooms, are not justifiable, in that they unjustifiably limit the right to privacy. As such, the criminalisation of psilocybin mushrooms falls short of the standards implemented in section 36 of the Constitution and is concluded to be unconstitutional.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121949920","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}

{"title":"Migration and climate change in Africa: A differentiated approach through legal frameworks on the free movement of people","authors":"Victor T Amadi, M. Vundamina","doi":"10.17159/2077-4907/2023/ldd.v27.2","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.2","url":null,"abstract":"The global consequences of rapid climate change cannot be overstated. In Africa, drought, flooding and environmental degradation are increasingly important drivers of migration, affecting already vulnerable and indigenous persons, together with factors such as conflict, poverty, and weak democratic governance. This article argues for alternative ways to protect vulnerable persons, alternatives which include regional integration frameworks on mobility. The article interrogates existing regional and subregional migration frameworks in Africa in order to ascertain the level of obligation to protect and facilitate the movement of those compelled to flee disaster-affected areas and seek safety in neighbouring countries. Regional and sub-regional groupings need to learn from each other, as well as utilise and expand on existing provisions for the free movement of people, to effectively accommodate the growing trend of migration due to environmental concerns. A laudable measure to ensure protection and facilitate the movement of such vulnerable persons can be found in the recently endorsed Protocol on the Free Movement of Persons in the Intergovernmental Authority on Development (IGAD).","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"103 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123987733","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}

{"title":"Beyond labels: Executive action and the duty to consult","authors":"Nurina Ally, Melanie Murcott","doi":"10.17159/2077-4907/2023/ldd.v27.4","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.4","url":null,"abstract":"Whether executive action attracts a duty to consult has been contested judicial terrain. In this article, we aim to contribute to the development of a principled approach to requiring consultation in executive decision-making. We grapple with the distinction between procedural fairness as a requirement of just administrative action and procedural rationality as a requirement of the principle of legality. We then move beyond these labels by engaging with the values underlying the Constitution's vision of participatory democracy. Despite contradictions in the case law, we suggest that the developing requirement of \"procedural rationality\" as a basis for a duty to consult offers fertile ground for advancing the values of accountability, responsiveness, and openness in executive decision-making. We therefore encourage recognition of participatory democracy as the normative framework within which the rationality of executive decision-making should be substantively assessed. Finally, we demonstrate that links between participatory democracy, a duty to consult, and executive decision-making have some grounding in existing case law, which, we argue, can be further developed.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122293715","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}

{"title":"The African Union's quest for a \"peaceful and secure Africa\": An assessment of Aspiration Four of Agenda 2063","authors":"Linda Mushoriwa","doi":"10.17159/2077-4907/2023/ldd.v27.3","DOIUrl":"https://doi.org/10.17159/2077-4907/2023/ldd.v27.3","url":null,"abstract":"This article undertakes a comprehensive assessment of the African Union (AU)'s Agenda 2063 Aspiration 4: A peaceful and secure Africa and the progress made at continental level towards it. Aspiration 4 is informed by the AU's acknowledgment that the scourge of conflict on the continent plays a significant role in hampering socioeconomic development. Against this background, the article examines the role played by the AU and its regional economic communities (RECs) in response to armed conflict on the continent, as exemplified by the AU and Southern African Development Community (SADC) response to the Cabo Delgado conflict in northern Mozambique. The AU's response to the recent surge of military coups in Africa is also examined, with a focus on the coups in Sudan in 2019 and 2021. The article concludes that the Agenda 2063 blueprint is a useful tool for the continental body when dealing with the scourge of conflicts and unconstitutional changes of governments, which threatens to hamper the AU's developmental agenda.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124537111","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}