A Legal Analysis of Local Government’s Housing Roles, Powers, Functions and Responsibilities in South Africa

A Legal Analysis of Local Government’s Housing Roles, Powers, Functions and Responsibilities in South Africa

Author: Paul Mudau

ISSN: 2521-2605
Affiliations: Senior Lecturer, Department of Public, Constitutional and International Law, University of South Africa
Source: Journal of Comparative Law in Africa, Volume 12 Issue 1, p. 1 – 41
https://doi.org/10.47348/JCLA/v12/i1a1

Abstract

This article undertakes a comprehensive legal analysis of local government’s housing roles, powers, functions and responsibilities in South Africa. It outlines the place and role of local government in South Africa’s constitutional framework of multi-level governance and the decentralisation of housing powers to local government. Although the functional area of housing is listed as a ‘concurrent competency’ of the national and provincial spheres of government in terms of Part A of Schedule 4 of the constitution, local government still has significant housing roles and responsibilities emanating from court judgments and national legislation. Primarily, these roles and responsibilities are conferred by the Housing Act 107 of 1997, the Social Housing Act 16 of 2008, and other relevant legislation. Virtually, all municipalities may exercise attendant housing powers. Depending on the ability to demonstrate the capacity to administer one of the housing programmes, municipalities may ultimately be assigned to fulfil the housing functions or powers on behalf of provinces. Using a desktop-based qualitative research approach, the article employs documentary analysis and case law review to critically evaluate the legal framework and its application. Findings highlight gaps in the current legal framework, inadequate resource allocation and capacity constraints hindering local governments’ ability to effectively address housing needs. Recommendations are made for legislative reforms, decentralisation of housing powers, capacity building, and intergovernmental co-ordination to enhance local government’s housing roles, powers, functions and responsibilities. This research contributes to the ongoing debate on local government’s role in addressing South Africa’s housing challenges, providing valuable insights for policymakers, practitioners and scholars.

When the Apex Court’s Decision is not Final: The Power of Apex Courts to Review (Rescind) Their Decisions in Some African Countries

When the Apex Court’s Decision is not Final: The Power of Apex Courts to Review (Rescind) Their Decisions in Some African Countries

When the Apex Court’s Decision is not Final: The Power of Apex Courts to Review (Rescind) Their Decisions in Some African Countries

Author: Jamil Ddamulira Mujuzi

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape, South Africa
Source: Journal of Comparative Law in Africa, Volume 12 Issue 1, p. 42 – 102
https://doi.org/10.47348/JCLA/v12/i1a2

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Jamil Ddamulira Mujuzi
When the Apex Court’s Decision is not Final: The Power of Apex Courts to Review (Rescind) Their Decisions in Some African Countries
Journal of Comparative Law in Africa, Volume 12 Issue 1, p. 42–102
https://doi.org/10.47348/JCLA/v12/i1a2

Abstract

Generally, the decision of the highest/apex court in a country is final. However, courts are staffed by human beings, and it is natural to err. It is not uncommon for apex courts to make mistakes. Legislation and case law from African countries show that courts can ‘escape’ the consequences of their mistake in one of the three ways. First, by departing from a previous erroneous/outdated decision (in a subsequent case). Second, by invoking the ‘slip rule’ to correct clerical or arithmetical errors. Three, which is the focus of this article, by reviewing/rescinding their decisions. In this case, one of the parties to a judgment asks a court to re-open the case he/she has lost and set aside its decision. As the discussion below shows, this remedy is available to, among other things, protect the right of access to justice (courts) to prevent an injustice, or. to protect the integrity of the court. This ultimately contributes to the entrenchment of the rule of law. This article shows that African countries have adopted five different approaches in dealing with the apex courts’ powers to review their decisions. First, the constitutions of some African countries such as Ghana, Eswatini, the Gambia and Namibia expressly allow courts to review their decisions. Second, in some countries such as Uganda, South Africa, Tanzania and Zimbabwe the apex courts’ power/jurisdiction to review their decisions is provided for in their respective rules. Third, in some countries such as Lesotho, Seychelles, Zambia, and Sierra Leone neither the constitutions nor the rules empower apex courts to review their decisions. However, courts have invoked their inherent powers as the basis to review their decisions. Fourth, in Kenya, the Supreme Court’s powers to review its decisions are provided for in legislation and rules of the court. Finally, in Nigeria, the Supreme Court rules prohibit it from reviewing its decisions. However, the Supreme Court held that it has inherent powers to review its decisions. This article shows that, irrespective of the source(s) of the power, case law from all the courts show that there is consensus that apex courts will review their decision(s), whether criminal or civil, if it is in the interests of justice to do so. Different grounds/reasons are invoked to explain why it is in the interests of justice to review a court’s decision. In some countries the list of the grounds of review is closed whereas in others it is open. In some countries, judges often disagree on the issue of whether the apex court’s power to review its decisions is categorised as ‘inherent jurisdiction’ or ‘inherent power.’ In this article, it is argued that in countries where legislation empowers courts to review their decisions, they have jurisdiction. Inherent powers exist in countries where legislation is silent on court’s powers to review their decisions. Although finality of litigation is a very important principle, achieving the ends of justice is more important. Thus, apex courts should not be very conservative when developing principles on reviewing their decisions.

Presence as a Ground for Jurisdiction in Common Law Africa

Presence as a Ground for Jurisdiction in Common Law Africa

Authors: Thomas Kojo Quansah and Theophilus Edwin Coleman

ISSN: 2521-2605
Affiliations: LLB (Ghana) LLM (UJ); Lecturer, Law School, University of Professional Studies, Accra, Ghana; Visiting Assistant Professor of Law, University at Buffalo School of Law, New York (USA); Senior Research Associate, Research Centre for Private International Law in Emerging Countries (RCPILEC), Faculty of Law, University of Johannesburg, South Africa
Source: Journal of Comparative Law in Africa, Volume 12 Issue 1, p. 103 – 145
https://doi.org/10.47348/JCLA/v12/i1a3

Abstract

Before rendering a binding judgment against a party, a court must have personal jurisdiction over that party. Courts may assume jurisdiction over a person in various ways. The oldest and most contentious method is the personal service of the defendant with the court process while they are present in the state. This basis is known as the mere presence, temporary presence, or physical presence rule, which originates from English common law. Under common law, the defendant’s presence within the court’s jurisdiction remains one of the primary bases for the court to assume jurisdiction over a civil action. The physical presence grounds for jurisdiction have recently faced significant challenges and criticisms from some scholars. Others contend that it is still relevant, primarily for the reasons behind its original justification. There is also the question of how the presence of a legal person is determined for establishing a court’s jurisdiction. Considering the foregoing, re-examining presence as a ground for jurisdiction appears warranted. This article, therefore, investigates presence as a basis for jurisdiction, its history, and the presence of natural and legal persons. Given the various common law countries with somewhat divergent approaches, a comparative study of relevant countries will be conducted, leading to pertinent observations, remarks, and recommendations regarding the way forward. With recent technological developments and advancements in common law African countries, this article explores whether the presence doctrine is an appropriate tool for courts to exercise jurisdiction.

Towards an Enabling Regulatory Environment for Fintech Startups in Africa: Lessons From Nigeria

Towards an Enabling Regulatory Environment for Fintech Startups in Africa: Lessons From Nigeria

Author: Albert Chris Puja

ISSN: 2521-2605
Affiliations: LLB (Unizik), LLM cum laude, LLD (UWC)
Source: Journal of Comparative Law in Africa, Volume 12 Issue 1, p. 146 – 189
https://doi.org/10.47348/JCLA/v12/i1a4

Abstract

This article examines how regulatory environments in Africa can be reformed to support fintech startups better, using Nigeria as a case study. Fintech startups are increasingly important in advancing financial inclusion, promoting competition and enabling innovation in African financial sectors. However, they face regulatory challenges that are sometimes overlooked in broader fintech discourse. These challenges include regulatory uncertainty, lack of tailored licensing regimes, fragmented oversight, and excessive compliance burdens. The article outlines the main elements of the regulatory environment in which fintech startups operate. These include policy frameworks, regulatory frameworks, institutional arrangements, and innovation-enabling mechanisms. It then explains how gaps in these frameworks create barriers to entry, restrict growth and increase regulatory complexity for fintech startups. The case study of Nigeria shows that, although policymakers and regulators have introduced a national fintech strategy, strengthened institutional capacity, established innovation facilitators and introduced tailored regulations, the regulatory environment remains characterised by some outdated laws, fragmented legal frameworks and flaws in regulatory co-ordination. The article proposes targeted reforms to address these issues and strengthen the regulatory environment. These proposals offer practical guidance for other African countries seeking to support their fintech startups more effectively. The article argues that an ideal regulatory environment enables fintech startups to thrive while upholding key regulatory objectives such as financial stability, financial integrity and consumer protection. Further, any reform to improve the regulatory environment must consider local conditions, including institutional capacity, resource constraints, and the maturity of the domestic fintech ecosystem.

Corporate Social Responsibility Within the Paradigm of Transformative Constitutionalism in South Africa

Corporate Social Responsibility Within the Paradigm of Transformative Constitutionalism in South Africa

Authors: Tebello Thabane, Prince Mathibela and Justice Mudzamiri

ISSN: 2521-2605
Affiliations: Senior Law Lecturer, Commercial Law Department, University of Cape Town, South Africa, BA Law, LLB (National University of Lesotho), LLM (UP), LLM (UFS), PhD (UCT). Advocate of the High Court of South Africa and Lesotho; PhD candidate at Stellenbosch University Law Faculty, Commercial Law Department, Attorney of the High Court of South Africa. Legal Advisor at SouthSouth North NPC. BA, LLB (Wits), LLM (University of Cape Town); Postdoctoral Research Fellow, Department of Mercantile Law, University of Johannesburg. LLB (University of Fort Hare), LLM (University of Johannesburg), LLD (University of Fort Hare). Attorney of the High Court of South Africa
Source: Journal of Comparative Law in Africa, Volume 12 Issue 1, p. 190 – 218
https://doi.org/10.47348/JCLA/v12/i1a5

Abstract

South Africa is considered one of the most unequal societies in the world. This inequality is primarily attributed to the negative impact of apartheid on the distribution of resources. To address this issue, efforts have been made to transform society by incorporating substantive equality and transformative justice principles into the Constitution of the Republic of South Africa, 1996, related laws, and voluntary codes. The main object of this article is to investigate whether, in its current form, corporate social responsibility (CSR) has the potential to effectively deepen social transformation in South Africa or if it requires further strengthening. The article compares the approaches of South Africa and India in addressing inequality through legal tools, evaluates the strengths and weaknesses of each approach, and proposes law reform that would ensure social transformation in South Africa.

Sustainable Solid Waste Management Practices in South Africa: a Comparative Legal Analysis

Sustainable Solid Waste Management Practices in South Africa: a Comparative Legal Analysis

Authors: Katlego Mashiane, Kola O Odeku

ISSN: 2521-2605
Affiliations: LLD Candidate, Faculty of Management and Law, University of Limpopo; Professor, Faculty of Management and Law, University of Limpopo
Source: Journal of Comparative Law in Africa, Volume 11 Issue 2, p. 1 – 42
https://doi.org/10.47348/JCLA/v11/i2a1

Abstract

South Africa is facing increasing mismanagement of solid waste, such as illegal dumping in open areas. This mismanagement of solid waste in South Africa is an environmental issue that threatens human rights. This study analyses sustainable solid waste management practices in South Africa and draws lessons from England and Kenya focusing on solid waste management, collection and disposal. England is a developed country with advanced waste management systems, while Kenya is a developing country facing similar solid waste management challenges to South Africa’s. While South Africa has its legal framework on solid waste management, the lessons from both England and Kenya are to improve and strengthen waste management practices and enforcement in South Africa. This study deployed and used a qualitative research approach to highlight how England, Kenya, and South Africa’s legal frameworks reflect their socioeconomic conditions, environmental priorities, and governance enforcement. The findings of the study are important for policy development. The study concludes that South Africa’s legal and policy framework needs to be inclusive and enhanced for effective enforcement of sustainable solid waste management.