Populist conceptions of the “people” and multi-party democracy

by | Jun 18, 2022 | SLR, SLR V33 I2

Populist conceptions of the “people” and multi-party democracy

Author: JL Pretorius

ISSN: 1996-2193
Affiliations: BComm BA(Hons) LLB LLD Extraordinary Professor, Free State Centre for Human Rights, University of the Free State
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 3 – 24
https://doi.org/10.47348/SLR/2022/i2a1

Abstract

Although conceptual approaches to populism differ, there is a high degree of consensus that the ideological distinctiveness of populism lies in the unique way it constructs its core concept, the “people”. This article assesses the implications of populist understandings of the people for the constitutional endorsement of multi-party representative democracy. Regardless of its many manifestations, populism structures peoplehood around a distinct brand of ideologised popular sovereignty, in combination with another dominant host ideology, which, depending on the context, can be drawn from any of the main ideologies on the left‒right spectrum. This combination invariably produces an opposite “other”, an “anti-people”, as a necessary co-constituent of the populist people’s cohesion and identity. The homogenising and exclusionary construct of peoplehood associated with populism holds profound implications for multi-party representative government. It challenges the pluralist notion of multi-party representation by advocating for representation as the embodiment of a homogenous popular will instead. Representation as embodiment fosters extreme majoritarian attitudes and, as histories of populists-in-government have shown, tendencies towards authoritarianism. Populist conceptions of the people ultimately dispute core features of multi-party representative democracy, such as inclusive democratic citizenship, pluralist representation, oppositional political rights, the recognition of opposition parties as standing alternatives to incumbent governments, and accommodation and compromise as inclusionary democratic practice.

Deciding matters of general public importance: An analysis of the value-laden approach

by | Jun 18, 2022 | SLR, SLR V33 I2

Deciding matters of general public importance: An analysis of the value-laden approach

Author: Paul Nkoane

ISSN: 1996-2193
Affiliations: BComm LLB LLM Lecturer, University of South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 25 – 45
https://doi.org/10.47348/SLR/2022/i2a2

Abstract

There is no doubt that the Constitution of the Republic of South Africa, 1996 is supreme. Thus, all laws and conduct should conform to it. However, the Constitution is constructed in such a manner that can lead to the questioning of its scope and therefore the extent of its supremacy. The provisions of the Constitution are crafted to focus on specific issues. This has led some to question its reach in matters that do not raise clear constitutional questions. This article is intended to provide a historical overview of the foundation of the Constitution and concomitantly to untangle its reach and scope. The analysis reveals that the scope of the Constitution extends far beyond the frontier of its provisions in the Bill of Rights. This then entails that matters of general public importance that do not raise clear constitutional questions could be decided through the application of constitutional standards.

Making and disputing jeopardy assessments: An administrative law perspective

by | Jun 18, 2022 | SLR, SLR V33 I2

Making and disputing jeopardy assessments: An administrative law perspective

Author: S De Lange

ISSN: 1996-2193
Affiliations:BAcc LLB MComm (Tax) Lecturer, Stellenbosch University
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 46 – 69
https://doi.org/10.47348/SLR/2022/i2a3

Abstract

The South African Revenue Service (“SARS”) is authorised by section 94(1) of the Tax Administration Act 28 of 2011 (“TAA”) to make a jeopardy assessment in advance of the date on which the return is normally due, if the Commissioner for the SARS is satisfied that it is required to secure the collection of tax that would otherwise be in jeopardy. As making a jeopardy assessment amounts to “administrative action” as defined in the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), it must meet the administrative justice requirements of lawfulness, reasonableness and procedural fairness as provided for in section 33 of the Constitution of the Republic of South Africa, 1996, read together with PAJA. This article analyses what is required of SARS when making a jeopardy assessment to meet these administrative justice requirements. However, should an aggrieved taxpayer not be satisfied with the making of a jeopardy assessment, the remedies which are available to the taxpayer to dispute a jeopardy assessment should be determined. Therefore, this article also sets out the various ways in which an aggrieved taxpayer can dispute a jeopardy assessment with reference to objection and appeal as provided for in the TAA, the special statutory review provided for in the TAA (which specifically allows that an application to review a jeopardy assessment may be made to the High Court on the grounds that its amount is excessive or circumstances that justify a jeopardy assessment do not exist), and the more general PAJA review process.

Redress for consumers in terms of the Consumer Protection Act 68 of 2008: The watchdog’s failure to support an accredited industry ombud – alternative suggestions

by | Jun 18, 2022 | SLR, SLR V33 I2

Redress for consumers in terms of the Consumer Protection Act 68 of 2008: The watchdog’s failure to support an accredited industry ombud – alternative suggestions

Author: MA (Riette) Du Plessis

ISSN: 1996-2193
Affiliations: BA LLB LLM PhD Associate Professor, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 70 – 90
https://doi.org/10.47348/SLR/2022/i2a4

Abstract

In this contribution, available avenues of consumer redress in terms of the Consumer Protection Act 68 of 2008 (“CPA”) are discussed. The majority of complaints heard by the courts and the National Consumer Tribunal (“NCT”) regarding defective goods entail second-hand cars. These include cases of suppliers’ contempt of findings by the Motor Industry Ombudsman of South Africa (“MIOSA”) in terms of section 70(3)(a), as well as instances where the MIOSA terminates the section 70(2) process and the consumer approaches the National Consumer Commission (“NCC”) in terms of section 71. Processes in the Consumer Protection Act 68 of 2008 are not clearly delineated, leading to unnecessary cross-referrals between different redress mechanisms, such as the MIOSA, the NCC and provincial protection authorities and consumer courts. The NCC’s approach, which is not supported by the CPA, is to avoid investigating individual consumer complaints. The NCC consistently refers matters back to either a different or the same alternative dispute resolution agent, in conflict with the caveat in section 72(1)(b). Many NCT decisions indicate that the NCC issues notices of non-referral without due justification, thereby compelling consumers to approach the NCT, if permitted, or consumer courts for relief. The interplay between the MIOSA, the NCC and provincial consumer courts is discussed, the effect of which frustrates the aim of effective and efficient redress and enforcement in terms of the CPA. An alternative route to ensure the enforcement of consumer rights and redress is suggested, in terms of which the NCC should focus on the outcome of the investigation and use section 73(1)(c)(iii) to refer matters to consumer courts in terms of section 73(2). The advantages of such referrals are indicated. It is shown that the successful outcome of consumers’ claims, where the supplier engages in prohibited conduct, depends on the appropriate application of the relevant sections of the CPA.

Termination of Muslim marriages in the South African legal context: Understanding the challenges

by | Jun 18, 2022 | SLR, SLR V33 I2

Termination of Muslim marriages in the South African legal context: Understanding the challenges

Author: M Osman-Hyder

ISSN: 1996-2193
Affiliations: BA LLB LLM Honorary Research Fellow, University of KwaZulu-Natal
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 91 – 109
https://doi.org/10.47348/SLR/2022/i2a5

Abstract

Muslim marriages are not recognised in South Africa and therefore divorces are not regulated by the courts. There are multiple methods of terminating a Muslim marriage; this is not the position with civil marriages in South Africa which are terminated through the divorce proceedings set out in the Divorce Act 70 of 1979. Due to the non-regulation of Muslim marriages, many abuses occur when parties terminate their marriages. With regard to the implementation of Sharī`ah in South Africa, much has been written about the recognition of Muslim Personal Law (MPL). There is a need for research which goes beyond identifying individual challenges and which aims to achieve a more holistic analysis, exploring the root causes of the abuses that could arises in the event that a Muslim marriage is terminated. The purpose of this enquiry therefore is to examine these possible systemic causes and to suggest proposed solutions. This contribution commences with a review of the laws, procedures and institutions regulating the termination of Muslim marriages in South Africa. Challenges with regard to such terminations are then explored and analysed. In conclusion, some remarks are made in respect of addressing the challenges holistically.

Evaluating whether the laws governing deceased estates infringe on the right to have access to adequate housing

by | Jun 18, 2022 | SLR, SLR V33 I2

Evaluating whether the laws governing deceased estates infringe on the right to have access to adequate housing

Author: Alina Starosta

ISSN: 1996-2193
Affiliations: LLB LLM Lecturer, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 110 – 124
https://doi.org/10.47348/SLR/2022/i2a6

Abstract

Despite many developments related to the right to housing in recent years, the laws governing deceased estates (in so far as they relate to the right to housing) remain remarkably unchanged. For example, a surviving spouse or other heirs are often forced to sell their primary residence in order to discharge the obligation to wind up the deceased’s estate and to liquidate the debts of the deceased. This is done without proper regard to relevant considerations of prejudice, including the risk of homelessness. The problem is exacerbated when the home is bonded at the time of the deceased’s passing and no life cover secures the outstanding bond – the provisions of the Administration of Estates Act 66 of 1965 oblige the executor to pay all the deceased’s creditors including the mortgagee. This is so even if the surviving spouse or other heirs can continue to service the monthly bond instalments but are unable to discharge the entire debt in one lump sum. In this article, the author contends that to the extent that the laws governing deceased estates necessitate the sale of a primary residence with the concomitant effect of rendering a spouse or heir homeless, they infringe on the right to have access to adequate housing enshrined in section 26 of the Constitution of the Republic of South Africa, 1996 and as such, are unconstitutional.

Climate change protests and a liberal rights approach in South Africa: Pitfalls and potentials

by | Jun 18, 2022 | SLR, SLR V33 I2

Climate change protests and a liberal rights approach in South Africa: Pitfalls and potentials

Authors: Ademola Oluborode Jegede and Myrone Christopher Stoffels

ISSN: 1996-2193
Affiliations: LLB LLM LLD Professor of Law, University of Venda; LLB, LLM Lecturer, North-West University
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 125 – 147
https://doi.org/10.47348/SLR/2022/i2a7

Abstract

The need for states and civil society to contribute to the global response to climate change is an important feature of international climate change instruments and literature. While states are duty-bearers of rights for all, protests are a historic strategy of civil society to demand accountability and foster societal change. The protection of protests is not specifically guaranteed under human rights law, but its inferred legal basis and scope reflects the liberal tradition, where Dworkin’s right-based theory on the tension between individual rights and the collective or societal goal is significant. This tension is expressed in South Africa, a developing country, where the liberal rights tradition has played a major influence on the formulation and application of rights and their legal limitations. The challenges which may result from this tension for climate-related protests are rarely clarified and the way in which these challenges may be addressed has not been carefully articulated. Employing Dworkin’s liberal rights as a basis of analysis, this contribution demonstrates how the tension between collective goals and individual rights may generate challenges in climate change protests. It then highlights key constitutional concepts associated with rights that may be helpful in addressing the drawbacks in South Africa.

The transformed water regulatory regime of South Africa [Discussion of South African Association for Water User Associations v Minister of Water and Sanitation [2020] ZAGPPHC 252 (19 June 2020)]

by | Jun 17, 2022 | SLR, SLR V33 I2

The transformed water regulatory regime of South Africa [Discussion of South African Association for Water User Associations v Minister of Water and Sanitation [2020] ZAGPPHC 252 (19 June 2020)]

Author: Germarié Viljoen

ISSN: 1996-2193
Affiliations: LLB LLM LLD Associate Professor, North-West University
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 148 – 160
https://doi.org/10.47348/SLR/2022/i2a8

Abstract

A completely new water law dispensation, amounting to a regime change, was introduced with the National Water Act 36 of 1998. The water regulatory framework changed from one that linked access to water to land ownership and differentiated between private and public water, to a framework that applies to “all water” in South Africa and that acknowledges that “water belongs to all people”. To facilitate the notion that water belongs to all people, the legislature formally introduced the concept of public trusteeship into the country’s water law. Since the promulgation of the Act, there has been no attempt in reported case law to provide a thorough exposition of the impact of the concept of public trusteeship in the water law context. This case note explores how the High Court for the first time deliberated on the impact on the nature, form, extent and limits of use rights that can be acquired in water as a natural resource in the new regulatory regime.

Strengthening the recognition of strategic water source areas in decisions on water use licences [Discussion of Endangered Wildlife Trust v Director- General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019)

by | Jun 17, 2022 | SLR, SLR V33 I2

Strengthening the recognition of strategic water source areas in decisions on water use licences [Discussion of Endangered Wildlife Trust v Director- General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019)

Author: Amanda ZT Mkhonza

ISSN: 1996-2193
Affiliations: LLB LLM Lecturer, University of Cape Town
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 161 – 175
https://doi.org/10.47348/SLR/2022/i2a9

Abstract

There has been increasing recognition of the importance and value of strategic water source areas (“SWSAs”). SWSAs form about 10% of South Africa’s landscape and provide 50% of the country’s water. Their strategic importance lies in their significant ability to provide for the country’s economic, agricultural and basic human needs. One such SWSA has been at the centre of various court hearings, due to proposed mining activities in the Mabola Protected Environment – which falls squarely within the Enkangala Drakensberg SWSA. In May 2019, the Water Tribunal handed down a judgment pertaining to the water use licence application for these proposed mining activities in Endangered Wildlife Trust v The Director-General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019). The applicants challenged the decision to grant the water use licence on seven grounds, all revolving around how public authorities should exercise their statutory mandates when dealing with the country’s most scarce natural resource – water. As important as the judgment is for underscoring the balance between the use of natural resources and economic gain, it also highlights a trite point – SWSAs are not regulated in South Africa’s environmental legislation and as such, their legal protection is questionable. Although various scientific research documents and guidelines point to the need to protect SWSAs, the Tribunal insisted that these do not meet the “relevant considerations” requirement as per the National Water Act 36 of 1998 and could thus not be taken into account when coming to its final decision. This case note has three objectives. First, to provide a summary of the case and the Tribunal’s findings. Secondly, to reflect critically on the lessons learned from the Tribunal’s consideration of the scientific reports calling for SWSA protection. Thirdly, to suggest a way forward for promoting the protection of SWSAs in environmental law.

The best interests of the child in the face of COVID-19 travel restrictions: Analysing the rights of children and parents [Discussion of CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020)]

by | Jun 17, 2022 | SLR, SLR V33 I2

The best interests of the child in the face of COVID-19 travel restrictions: Analysing the rights of children and parents [Discussion of CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020)]

Author: Angelo Dube

ISSN: 1996-2193
Affiliations: BA LLB LLM MBL LLD Professor, University of South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 176 – 186
https://doi.org/10.47348/SLR/2022/i2a10

Abstract

On 20 March 2020 the President of South Africa, Cyril Ramaphosa, announced a national lockdown as an interim response by the South African Government to the COVID-19 pandemic. This followed a declaration of a state of national disaster by the Minister for Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma. As part of the 21-day national lockdown, the Minister issued regulations aimed at stemming the rise in infections across the country. Part of the restrictions imposed by the regulations was to limit free movement which included regulating crossprovincial travel without a permit. In CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020), the High Court of South Africa was confronted with an application in which the parents of two minors requested permission to travel across provinces to fetch their minor children and return them to their place of residence. The issue before the court was whether the regulations permitted the movement of children between parents and their caregiver.