ISSN: 2521-2591
Affiliations: Lecturer, Faculty of Law, University of Ibadan
Source: South African Intellectual Property Law Journal, 2018, p. 47 – 66
None
ISSN: 2521-2591
Affiliations: Lead Consultant, Penguide Advisory
Source: South African Intellectual Property Law Journal, 2018, p. 24 – 46
None
ISSN: 2026-8556
Affiliations: None
Source: SADC Law Journal, The, 2012, Issue 2, p. 335 – 339
None
ISSN: 2026-8556
Affiliations: Institute for Security Studies and Max Planck Institute for the Study of Societies; Centre of Criminology, University of Cape Town
Source: SADC Law Journal, The, 2012, Issue 2, p. 319 – 334
From the early 1990s onwards, research and policies concerning organised crime in the southern African region have grown apace. But the quest for both quantitative and qualitative research is far from being satisfied. The paper uses an ambitious research project (titled Enhancing Regional Responses to Organised Crime, or EROC) as a case study in order to explore the dynamics which inform and shape research on organised crime from the point of project initiation through to project conceptualisation, data-gathering and analysis, the dissemination of findings, and the formulation of policy recommendations for effective law enforcement. The discussion provides an overview of the many challenges which research on organised crime and law enforcement strategies have to contend with in the southern African region. A critical analysis of the macro- and micro-processes which shape the development of research-based policy interventions in relation to organised crime can contribute to our appreciation of the problem of organised crime itself and of the prospects for police cooperation in the region.
ISSN: 2026-8556
Affiliations: PhD Fellow, Ecole doctorale de droit international et européen, Université Paris
Source: SADC Law Journal, The, 2012, Issue 2, p. 304 – 318
This paper addresses some aspects of the Southern African Development Community (SADC) Tribunal’s current review process from a European point of view, comparing elements of European judicial integration with the perspectives for supranational rule of law in southern Africa. It appears that the achievements at stake since the Campbell crisis — namely the Tribunal’s individual complaints mechanism — are only one, albeit important, field of activity for a community judge. Another most intriguing challenge for the cause of regional integration, shared by all African regional courts, remains the use of preliminary ruling procedures by national judges in order to end the radio silence between national and regional judiciaries. Besides pursuing ways to solve this challenge, the search for a proper place for the Tribunal within the community needs to be contextualised in the overall functioning of the institutional setting. Remedies to the current intergovernmentalist overweight will necessarily have to include a strengthening of independent institutions at the regional level; the establishment of a legislative assembly would be particularly promising in this regard.
ISSN: 2026-8556
Affiliations: Research/Teaching Associate, Webber Wentzel Scholar and PhD Candidate, School of Law, University of the Witwatersrand, Johannesburg
Source: SADC Law Journal, The, 2012, Issue 2, p. 281 – 303
The history of Africa in the 1990s is one of conflicts that reached their height in the Rwanda genocide of 1994. African subregional organisations like the Economic Community of West African States (ECOWAS) and the Southern African Development Community (SADC) have found themselves undertaking humanitarian military interventions not authorised by the United Nations Security Council (UNSC). The African Union (AU) has also shifted its paradigm from regime security to human security by constructing an interventionist legal framework which rests on African subregional organisations for its implementation. This paper examines the existing legal frameworks for humanitarian intervention under the constitutive documents of ECOWAS and SADC, and argues that, in terms of normative reach, there is a conflict between what is envisaged by the AU architecture and what actually exists in the SADC regime, particularly in relation to obtaining UNSC authorisation for humanitarian interventions in Africa. The paper calls for a review of the SADC regime to bring it in line with the AU architecture.
ISSN: 2026-8556
Affiliations: Professor of Law, Faculty of Law, Stellenbosch University
Source: SADC Law Journal, The, 2012, Issue 2, p. 246 – 280
One of the objectives of the Southern African Development Community (SADC) is to promote sustainable and equitable economic growth and socio-economic development that will ensure poverty alleviation in the region. Furthermore, SADC aims to achieve the sustainable utilisation of natural resources and effective protection of the environment. SADC environmental law consists of a myriad of provisions scattered all over its legal framework, namely the SADC Treaty, the SADC Protocols, and other SADC legal instruments. This paper sketches the most relevant environmental instruments within the SADC legal framework and, by referring to relevant cases, outlines how enforcement of these instruments is being handled. The critical role and the current status of the SADC Tribunal are reflected on, and a connection is established to cross-cutting regimes such as the Southern African Customs Union; the East African Community (EAC), the Common Market for Eastern and Southern Africa (COMESA) and SADC (EAC — COMESA — SADC) Tripartite Initiative; and the association among Brazil, Russia, India, China and South Africa (BRICS), before elaborating on particular issues pertaining to SADC climate change policy.
ISSN: 2026-8556
Affiliations: Associate Professor, Faculty of Law, North-West University
Source: SADC Law Journal, The, 2012, Issue 2, p. 223 – 245
One of the major challenges in the regionalisation of public procurement, especially in the developing world, is the achievement of countries’ socio-economic objectives and how to balance this with the liberalisation of regional trade in the public procurement sphere. From the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Public Procurement of Goods, Services and Construction, the General Procurement Agreement of the World Trade Organization (WTO), and the South African law, it is clear that effective measures are available for states to achieve their socio-economic objectives. However, the necessary safeguards need to be put in place to ensure that the generally acceptable principles of public procurement also apply to these measures. The mere fact that countries need to achieve their socio-economic objectives should not be an obstacle in the regionalisation process or in the deeper integration of public procurement in a region. In fact, governments should lead by example and strive to deepen regional integration in public procurement. Therefore, it will be necessary for the individual country to find the balance between realising its socio-economic objectives and the need to allow all states in the region to access its internal public procurement market.
ISSN: 2026-8556
Affiliations: Senior Researcher at the Mandela Institute, University of the Witwatersrand
Source: SADC Law Journal, The, 2012, Issue 2, p. 205 – 222
This paper discusses the Bilateral Investment Promotion and Protection Agreement (BIPPA) between South Africa and Zimbabwe entered into in November 2009. It highlights the fact that policymakers in both countries realised the need to have an agreement in place that would boost Zimbabwe’s beleaguered economy and serve as a protection mechanism for investments in both countries — amidst objections from South African farmers who tried to stop the agreement from being signed. The paper discusses the implications of these two countries’ entering into such an agreement against the background of their national economic policies, national laws and international law. The paper suggests there is a need to maintain a balance between national polices and international law as competing pressures are brought to bear when it comes to the BIPPA’s implementation. The question here is whether or not the Agreement alone is likely to solve the long-standing conflict brought by Zimbabwe’s land policy, which resulted in the seizing of land and the issue of investor protection. Competing pressures that are raised in this regard are issues of constitutional rights, legislative supremacy, diplomatic protection, and treaty interpretation in regard to investor protection. In this regard, the paper investigates the implications of the Agreement from the point of view of other legal obligations invoked in different forums, namely domestic South African and Zimbabwe law, Southern African Development Community (SADC) regional law, international law, and international customary law. Further questions are whether or not the BIPPA can, on its own, solve any investor dispute that may arise, and whether or not investors will be faced with a host of other competing legal pressures that could be brought to the forefront in future investment disputes. Of particular importance would be the BIPPA’s dispute resolution clauses. The discussion explores whether or not the signing of this Agreement ushered in a new dawn in the Zimbabwean economy and the stabilisation of the southern African region in general. The discussion is concluded by suggesting that, in seeking to balance the competing interests between national policies and international law and to ensure the constitutional responsibilities of the state are not interfered with, the BIPPA attempts to regulate future cross-border investment disputes between South Africa and Zimbabwe.
ISSN: 2026-8556
Affiliations: LLD Candidate and Associate Lecturer, Faculty of Law, University of the Western Cape
Source: SADC Law Journal, The, 2012, Issue 2, p. 187 – 204
The Protocol on Trade seeks to liberalise trade among Southern African Development Community (SADC) members through the elimination of tariff and non-tariff barriers with the aim of establishing a Free Trade Area (FTA) in the region. The paper revisits the Regional Indicative Strategic Development Plan (RISDP) timelines as far as trade liberalisation is concerned. It shows that while the FTA was launched as per the 2008 deadline, a number of obstacles still remain. These include the failure by some members to achieve the liberalisation threshold, inadequate customs infrastructure, the surge in non-tariff barriers, and the multiple memberships of the SADC countries in other regional trade blocs, which may undermine SADC’s objectives. This paper suggests that the solutions to these problems include consolidating the gains achieved from the FTA; getting members whose commitments are outstanding to take steps to align their customs laws to the agreed benchmarks; having members refrain from imposing non-tariff barriers; increasing customs cooperation; and setting realistic time frames.