The Role of Environmental Justice in Socio-Economic Rights Litigation

by | Oct 22, 2019 | SALJ, SALJ V132 I4 2015

The Role of Environmental Justice in Socio-Economic Rights Litigation

Authors Melanie Murcott

ISSN: 1996-2177
Affiliations: Lecturer, Department of Public Law, University of Pretoria
Source: South African Law Journal, Volume 132 Issue 4, 2015, p. 875 – 908

Abstract

This article explores the role of environmental justice as a transformative tool in litigation to enforce socio-economic rights in South Africa. Because environmental justice recognises the intrinsic links between the distribution of basic resources, and the environments in which poor people continue to find themselves in post-1994 South Africa, it has the ability to enhance and strengthen the enforcement of socio-economic rights. To demonstrate the transformative potential of environmental justice, I discuss its origins and its incorporation into South African law. I then demonstrate that, despite having been incorporated into our law, environmental justice has failed to capture the imagination of lawyers engaged in socio-economic rights litigation. Sustainable development and human rights discourses have been the dominant voices, at the expense of environmental justice, and its transformative potential. Through an analysis of Mazibuko v City of Johannesburg I point tohow linking environmental justice to the right to access to basic water could have encouraged the court to adopt a more redistributive and transformative approach. To conclude, I consider the potential of environmental justice in socio-economic rights litigation to challenge poverty and effect transformation in the lives of poor people in South Africa.

The Nairobi International Convention on the Removal of Wrecks, 2007: Sinking or Salvaging South Africa’s Wreck-Removal Legislation?

by | Oct 22, 2019 | SALJ, SALJ V132 I4 2015

The Nairobi International Convention on the Removal of Wrecks, 2007: Sinking or Salvaging South Africa’s Wreck-Removal Legislation?

Authors Livashnee Naidoo

ISSN: 1996-2177
Affiliations: Attorney and Notary of the High Court of South Africa. Commonwealth Scholar and PhD candidate, University of Southampton. Lecturer in the Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 132 Issue 4, 2015, p. 849 – 874

Abstract

The Nairobi International Convention on the Removal of Wrecks, 2007, which entered into force in April 2015, is expected to fill a lacuna in international law by providing the first set of uniform international rules aimed at ensuring the effective removal of hazardous wrecks. The issue of wreck removal has become increasingly glaring, to the extent that the South African government has recently acceded to the Convention. This article will consider the extent to which the South African legislative framework on wreck removal is deficient, and to examine if certain of the Convention’s features could address the identified deficiencies in the South African legislative scheme. The core areas identified for reform in the South African legislative scheme are the lack of accountable ownership, insurance, and enforcement mechanisms. The Convention is able to address these deficiencies suitably through the provisions of inter alia strict liability, compulsory insurance and direct action. Yet the benefits of the Convention have to be balanced against the constraints imposed on an affected coastal state. Against this background, I submit that the Convention is able to augment meaningfully South Africa’s legislative scheme and the Convention should be adopted and given effect through a domestic enabling statute.

What’s Good for the Goose is Good for the Gander – Warrantless Searches in Terms of Fiscal Legislation

by | Oct 22, 2019 | SALJ, SALJ V132 I4 2015

What’s Good for the Goose is Good for the Gander – Warrantless Searches in Terms of Fiscal Legislation

Authors Carika Keulder

ISSN: 1996-2177
Affiliations: Lecturer, Department of Mercantile Law, University of Pretoria
Source: South African Law Journal, Volume 132 Issue 4, 2015, p. 819 – 848

Abstract

Both the Tax Administration Act and the Customs and Excise Act provide SARS with the power to conduct a search and seizure without first obtaining a warrant. The justification for a warrantless search is that it enables SARS to act straight away, thus preventing tax evaders from destroying or hiding evidence of their evasion. This article explains that certain circumstances need to be present before a warrantless search may be conducted, and certain guidelines must be adhered to when a warrantless search and seizure operation is conducted. This article, more importantly, demonstrates that the warrantless-search framework of the Customs and Excise Act is inconsistent with the warrantless-search framework of the Tax Administration Act. Consequently, when a taxpayer may be subject to value-added tax (which is collected in terms of the Tax Administration Act) and customs duty (which is collected in terms of the Customs and Excise Act) SARS can elect to conduct a search in terms of the less stringent provisions, resulting in ‘provision shopping’on the part of SARS.

Democratic Representation: A Critical Assessment of the Current South African Electoral System

by | Oct 22, 2019 | SALJ, SALJ V132 I4 2015

Democratic Representation: A Critical Assessment of the Current South African Electoral System

Authors Loammi Wolf

ISSN: 1996-2177
Affiliations: Research Advisor, Sanlam Centre for Public Management and Governance, University of Johannesburg
Source: South African Law Journal, Volume 132 Issue 4, 2015, p. 780 – 818

Abstract

Although proportional representation of political parties is generally better suited to ensure more accurate voter representation than majoritarian electoral systems, the current electoral system is problematic in so far as it only allows voters to vote for political parties and not for candidates of their choice. That shifts the constituent power of elected representatives in legislative bodies from the collective of individual citizens to political parties, in contravention of ss 3 and 42(3) of the Constitution. The political rights guaranteed by s 19 of the Bill of Rights are also compromised. These rights are inalienable individual rights of citizens. Section 57A of the Electoral Act 73 of 1998, which provides for pure proportional representation of political parties with no option being provided to voters to select candidates of their preference, or for independent candidates to stand for political office, has ousted s 19 political rights in contravention of s 36 of the Constitution. Other models of proportional representation that would be in conformity with the Constitution are therefore explored. Certain deficits relating to the equal treatment of political parties are also discussed. These deficits affect the fairness of elections.

Notes: The Financial Sector Regulation Bill in South Africa, Second Draft: Lessons from Australia

by | Oct 22, 2019 | SALJ, SALJ V132 I4 2015

Notes: The Financial Sector Regulation Bill in South Africa, Second Draft: Lessons from Australia

Authors Andrew J Godwin, Andrew D Schmulow

ISSN: 1996-2177
Affiliations: Senior Lecturer and Director, Transactional Law, Melbourne Law School, University of Melbourne; Senior Research Associate, Melbourne Law School, University of Melbourne; Visiting Researcher, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 132 Issue 4, 2015, p. 756 – 768

Abstract

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