Bingosinos, Concurrent Competence, and Functional Federalism in South Africa

by | Sep 7, 2019 | SALJ V135 I3 2018

Bingosinos, Concurrent Competence, and Functional Federalism in South Africa

Authors Stephen Louw, Victoria Bronstein

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Political Studies, University of the Witwatersrand, Johannesburg; Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 135 Number 3, p. 547 – 571

Abstract

Gambling, which is an area of concurrent national and provincial competence, provides a lens into South African federalism and co-operative government. Bingo machines may play a disproportionately important role in determining the fate of provincial powers in South Africa as s 146 of the South African Constitution, which regulates conflict between national and provincial legislation, threatens to become the subject of a defining court decision. The substance of the dispute is that the old-fashioned game of bingo has given way to bingo machines which have the look, feel and sound of casino slot machines. Some provincial legislation allows for the licensing of these machines, an approach resisted by central government. This mirrors a battle in the United States, where the same machines were used in order to get around regulatory distinctions in the Indian Gaming Regulatory Act of 1988.

The South African Financial Safety Net: In Support of the Proposed Deposit Protection Framework

by | Sep 7, 2019 | SALJ V135 I3 2018

The South African Financial Safety Net: In Support of the Proposed Deposit Protection Framework

Authors Herbert Kawadza

ISSN: 1996-2177
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 135 Number 3, p. 524 – 546

Abstract

Following widespread pressure from various quarters – internal and external – South Africa’s central bank recently opened up debate about the need to amplify the current financial safety net with an explicit deposit protection arrangement. While highlighting the adverse effects of such a scheme, this article seeks to support the South African government’s recently announced proposals for an explicit deposit insurance scheme. More fundamentally, the article seeks to show that if it ends up being properly executed, deposit insurance could be a crucial tool in averting moral hazards and enhancing both financial sector stability and deposit protection. Overall, this article contends that by providing a contractually binding arrangement which is reinforced by a robust prudential and supervisory framework, the proposed deposit protection scheme is a step in the right direction.

Judicial Review, Administrative Power and Deference: A View From the Bench

by | Sep 7, 2019 | SALJ V135 I3 2018

Judicial Review, Administrative Power and Deference: A View From the Bench

Authors Clive Plasket

ISSN: 1996-2177
Affiliations: Judge of the High Court of South Africa; Visiting Professor, Rhodes University
Source: South African Law Journal, Volume 135 Number 3, p. 502 – 523

Abstract

This article examines what is meant by ‘deference’ in the context of administrative law, what the courts have said about deferring to administrators, and whether deference has made any difference to the outcome of any judicial-review cases. The central argument that is advanced is that far too much is made of the concept: respect for the decisions of properly empowered primary decision-makers is already embedded in the review function of courts, principally as part of the doctrine of the separation of powers, and in fact the concept of deference has no separate, stand-alone function since the concept has not ever made any difference to a court’s decision, the decision in fact having been based on established administrative-law principles. Much of the academic debate about deference is really a debate about administrative-law reform generally, and the place of judicial review in administrative law.

The Right to Inclusive Education in South Africa: Recreating Disability Apartheid Through Failed Inclusion Policies

by | Sep 7, 2019 | SALJ V135 I3 2018

The Right to Inclusive Education in South Africa: Recreating Disability Apartheid Through Failed Inclusion Policies

Authors Timothy Fish Hodgson

ISSN: 1996-2177
Affiliations: Legal Advisor: Economic, Social and Cultural Rights, International Commission of Jurists
Source: South African Law Journal, Volume 135 Number 3, p. 461 – 501

Abstract

South Africa’s inclusive education system is in crisis. Although various pieces of legislation, policies and guidelines conceive of an inclusive education system, these policies are merely ‘nice theories’. The dual ‘apartheidisation’ of South Africa’s education system on the basis of race and disability continues. South African law and policy on inclusive education – both in conception and implementation – must be interpreted through the lens of the United Nations Convention on the Rights of Persons with Disabilities and the Africa Disability Protocol which entrench the right to inclusive education. Understood in this light, the right to inclusive education – a constitutional right in South Africa – includes three core components, namely: a right to an inclusive education system; a right to accessibility; and the right to individualised support including reasonable accommodation. Measured against these standards, the government’s failures are widespread and devastating and amount to systemic violations of children with disabilities’ constitutional right to inclusive education. On a systemic level, an estimated 597 953 children with disabilities still languish out of school. Those who do attend school remain predominantly in segregated special schools. The inadequacy of infrastructure and unavailability of learning materials are good examples of violations of the right to general accessibility. Evidence suggests it is unlikely that most schools provide reasonable accommodations and individualised support measures, violating learners’ individual rights. To build a more inclusive South Africa, a more inclusive education system is urgently needed. A more inclusively minded approach to public interest litigation and advocacy is necessary if the law is to contribute meaningfully to this enormous task.

Notes: Execution Against a Mortgaged Home – A Transformed, Yet Evolving, Landscape: FirstRand Bank Ltd v Mdletye (KZD) and FirstRand Bank t/a First National Bank v Zwane (GJ)

by | Sep 7, 2019 | SALJ V135 I3 2018

Notes: Execution against a mortgaged home – A transformed, yet evolving, landscape: FirstRand Bank Ltd v Mdletye (KZD) and FirstRand Bank t/a First National Bank v Zwane (GJ)

Authors Lienne Steyn

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 135 Number 3, p. 446 – 460

Abstract

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