A South African Historico-Legal Perspective on Plagues and Pandemics

by | Nov 20, 2022 | FUND, FUND V28I1

A South African Historico-Legal Perspective on Plagues and Pandemics

Author Marita Carnelley

ISSN: 2411-7870
Affiliations: BA LLB (Stell) LLM (UNISA) PhD (Amsterdam). Professor, Faculty of Law, North-West University
Source: Fundamina, Volume 28 Issue 1, p. 1-65
https://doi.org/10.47348/FUND/v28/i1a1

Abstract

Global health experts have warned for decades of potential global influenza outbreaks. Although some strides have been made to mitigate the risks and consequences of a pandemic, concerns have been raised about the level of preparedness – both nationally and internationally. This contribution considers a number of plagues and pandemics that directly or indirectly played a role in the development of the South-African legal system, specifically the Justinian Plague, the Black Death, the Great Plague, the Third Bubonic Plague, the Spanish Flu and the Influenza Outbreaks of the past century. Each pandemic created legal and political challenges at the time that were dealt with in the context of the existing conceptions of social justice; this inevitably shaped the development of public health and disaster management jurisprudence and, in some instances, also contributed to the change in the underlying world order. This contribution aims to set out the legal development associated with pandemics that influenced the South African common-law legal system from Roman times until the end of 2019, just prior to the Covid-19 outbreak. There are two main parts to this contribution: The first deals with local or national activities at the time of the pandemic, while the second deals with later international law developments to address possible negative global consequences of such pandemics. The aim is thus, on the one hand, to detect themes from local or national responses to the social, cultural and economic costs of a pandemic, even though it is understood that the impact and consequences of plagues and pandemics are not identical. On the other hand, international law developments are discussed as these too had an impact on the South African legal framework and commitments. Although various aspects related to addressing the consequences of pandemics have improved – such as global surveillance, prevention and eventual control to decrease the incidence and severity of outbreaks – a historical assessment of these experiences is useful for evaluating the progress made towards preparedness at national and international levels. The contribution concludes with a short description of the South African legal framework in 2019 as it pertained to a potential pandemic outbreak.

Pathways To African Unification: The Four Riders of The Storm

by | Nov 20, 2022 | FUND, FUND V28I1

Pathways To African Unification: The Four Riders of The Storm

Author Kofi Oteng Kufuor

ISSN: 2411-7870
Affiliations: BA Hons (University of Science & Technology, Ghana) LLM (London School of Economics) PhD (Warwick). Professor of Law, University of East London
Source: Fundamina, Volume 28 Issue 1, p. 66-103
https://doi.org/10.47348/FUND/v28/i1a2

Abstract

Research on African unification has not yet explained the reason for the belief in the possibility of post-colonial African states swiftly unifying as a federal or strong, functioning, supranational entity. This contribution attempts to fill this gap in the literature by exploring the various paths towards African unification. Some states pressing for unification misconstrued the history of the successful models that they insisted Africa could follow. This led to the assumption that a near frictionless and workable legal edifice for African unification could be easily created. This contribution has a twofold purpose: First, it draws attention to the importance of the intersection between history and law in construing and explaining the law as it relates to African unification. This is an intersection that has largely been ignored by scholars. Secondly, this contribution adds to the literature that asserts that African unification enthusiasts should reconsider mimicking other models in the expectation that this will help propel their goal of a united Africa. This study examines the routes to African unification, namely the role of socio-cultural interactions of Africans as propounded by Edward Blyden; the romantic speedy path as espoused by more radical forces by which the elite should muster the political will to bring a united Africa into existence; the role of force in creating a supranational Africa out of its independent states; and the role of market integration as an essential ingredient for any deeper and stronger relations among African states.

A Retrospective Evaluation of Affirmative Action – Taking Stock After Twenty Years

by | Nov 20, 2022 | FUND, FUND V28I1

A Retrospective Evaluation of Affirmative Action – Taking Stock After Twenty Years

Author ME Tenza

ISSN: 2411-7870
Affiliations: LLB LLM LLD (UNISA). Senior lecturer, School of Law, University of KwaZulu-Natal, Pietermaritzburg
Source: Fundamina, Volume 28 Issue 1, p. 104-139
https://doi.org/10.47348/FUND/v28/i1a3

Abstract

Affirmative action measures were included in the Employment Equity Act 55 of 1998 as a vehicle to drive the process of transformation in employment. South Africa has had affirmative action measures for more than twenty years, with the expectation that their implementation would bring equality in employment. The question that arises is whether designated and other employers are making progress in achieving the goals of the Employment Equity Act through the implementation of affirmative action measures in their workplaces. The Employment Equity Report of 2020–2021 states that there is an improvement in the employment of people from designated groups, despite some barriers. This shows that the country is slowly making progress towards achieving the goal of equality in employment. Despite the reports by the Commission for Employment Equity, this contribution argues that the implementation of affirmative action is very slow. Like other programmes designed to change the status quo, the implementation of affirmative action measures has not been without challenges. Factors, such as the unwillingness on the part of designated employers to implement affirmative action measures; lack of appropriate implementation plans in many workplaces; and fear or resistance to change by people occupying senior positions in employment, all contribute to the slow progress in implementing affirmative action measures. In addition, the contribution argues that the limited definition of designated groups is not in line with the Constitution and with international law obligations implied by the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The contribution recommends that the Employment Equity Act be amended to comply with the Constitution and ICERD to accelerate the process of change in employment. As a step in the right direction, the Employment Equity Amendment Bill of 2020 empowers the minister to set numerical targets for certain sectors.

The Development of The South African Emolument Attachment Order Mechanism: A Historical Overview

by | Nov 20, 2022 | FUND, FUND V28I1

The Development of The South African Emolument Attachment Order Mechanism: A Historical Overview

Author Stephan van der Merwe

ISSN: 2411-7870
Affiliations: BComm LLB LLM PGDip (Higher Education: Teaching and Learning) (University of Stellenbosch). Senior attorney, notary public and lecturer, Law Clinic, University of Stellenbosch
Source: Fundamina, Volume 28 Issue 1, p. 140-170
https://doi.org/10.47348/FUND/v28/i1a4

Abstract

In South Africa, wage garnishment is achieved through the emolument attachment order (hereafter “EAO”) mechanism. This civil debtcollection instrument plays a significant role in South African society, affecting the lives of potentially millions of people. It is therefore concerning that the mechanism is often criticised for lacking effective measures to prevent, monitor, identify and then correct irregularities in the collection of debt through EAOs. This contribution considers the historical context that directed the development of the South African EAO mechanism and the composition of the current South African framework regulating EAOs. It considers South Africa’s unique legal approach resulting from the development of common-law procedural affordances supporting a predominantly civil-law substantive system. It analyses the role of Roman law, Roman-Dutch law, English common law, and the constitutional dispensation in shaping the contemporary EAO mechanism. In the process, the study identifies challenges that have been present since the mechanism’s earliest origins, which can be traced through its historic development and remain contentious in its contemporary version. The study is significant since the EAO mechanism has not yet been subjected to a comprehensive and critical analysis of this kind. Limited research has been conducted on the South African EAO mechanism and there has not been any detailed analysis of its history and development. It is submitted that such an analysis is a necessary first step to facilitate further in-depth comparative research with the aim of developing an effective and fair EAO mechanism.

The History of the Creation of the Customary Law of Marriage and Divorce in the Natal Colony, Zululand and Kwazulu from 1869 to 1985

by | Apr 15, 2022 | FUND, FUND V27I2

The History of the Creation of the Customary Law of Marriage and Divorce in the Natal Colony, Zululand and Kwazulu from 1869 to 1985

Author Mothokoa Mamashela

ISSN: 2411-7870
Affiliations: Research fellow, UKZN
Source: Fundamina, Volume 27 Issue 2, p. 1-38
https://doi.org/10.47348/FUND/v27/i2a1

Abstract

This contribution discusses the creation of an official, colonial version  of the customary law of marriage and divorce in the Natal colony and  Zululand by the colonial administration. Traditional African institutions,  hereditary traditional leaders and their courts were replaced with  magistrates and British officials at public and administrative levels.  Customary law was codified, thus robbing it of its diversity, flexibility  and dynamism.  In traditional customary law a marriage was constituted in several  ways: arranged, forced, woman to woman, sororate and levirate  marriages occurred. However, the Natal colonial administration prohibited  these types of marriages, viewing them as repugnant to the  administration’s sense of morality and justice. A customary marriage  was also family-centred and processual; it united two families and not  only two individuals, and it took a long time to come into existence.  This characteristic of a customary marriage was also drastically  changed by the Natal colonial administration by removing it from the  purview/control of the family to the individuals themselves in that the  bride and groom were encouraged to choose their partners and to give  their consent freely to their own marriage. Marriage and divorce were  individualised and the couple’s families were gradually left out.  The principle regarding irretrievable breakdown of a marriage was  replaced with the guilt principle. In addition, five common-law grounds  for divorce were introduced into the customary law of divorce, and the  inquisitorial procedure was replaced with the adversarial one.  Patriarchy, one of the tenets of customary law, was diminished  through legislation that whittled down the excessive powers that fathers  had over their children. The legislation sought to endow women and  children with basic human rights and the gradual recognition of their  property rights. Colonial administrative changes meant that polygyny  and ilobolo were discouraged; that marrying more than one wife was  seen as enslavement of women; and that the transfer of ilobolo was  misinterpreted as the selling of women. 

Mandatory Bail in Uganda: Understanding Article 23(6) of the Constitution in the Light of its Drafting History

by | Apr 15, 2022 | FUND, FUND V27I2

Mandatory Bail in Uganda: Understanding Article 23(6) of the Constitution in the Light of its Drafting History

Author Jamil Ddamulira Mujuzi

ISSN: 2411-7870
Affiliations: Professor, Faculty of Law, University of the Western Cape
Source: Fundamina, Volume 27 Issue 2, p. 38-66
https://doi.org/10.47348/FUND/v27/i2a2

Abstract

Article 23(6)(a) of the Ugandan Constitution of 1995 provides that an arrested person is entitled to apply to court for discretionary bail. If a person has been awaiting trial for a specified number of days, article 23(b) and (c) obligates a court to release him/her on mandatory bail. This contribution analyses more than one hundred judgments of the Ugandan courts to determine how the question of bail, especially mandatory bail, has been dealt with judicially. Since article 23(6) does not expressly provide for the right to bail, the Ugandan Constitutional Court has come to conflicting conclusions on the question of whether article 23(6) provides for the right to be released on bail; for the right to apply for bail; or for both the right to apply for bail and to be released on bail. Relying on the drafting history of article 23(6), the author argues that the intention of the Constituent Assembly was to provide for the right of arrested persons to be released on bail. Article 23(6) also provides for mandatory bail. However, in some decisions, the High Court held that the right to mandatory bail does not fall away the moment at which a person who qualifies for it in terms of article 23(6) is committed to the High Court for trial. Based on the drafting history and literal interpretation of article 23(6), it is submitted that the moment an accused’s trial commences in a subordinate court or when they are committed to the High Court, their right to mandatory bail falls away. In addition, the High Court has held that a person who qualifies for mandatory bail is required to prove exceptional circumstances before they can be released on bail. This contribution argues that no such burden of proof exists.