1,720,981 research outputs found
ntrusion into the autonomy of South African local government: advancing the minority judgment in the Merafong City case
Full text linkTeen die agtergrond van die aard en wese van die Suid-Afrikaanse plaaslike regering wat na 1996 tot stand gekom het, is die saak van Merafong City Local Municipality v AngloGold Ashanti Ltd [2016] ZACC 35 een van die mees onlangse sake betreffende die inbreukmakende geaardheid van nasionale regulering van munisipale bevoegdhede. Een van die belangrikste aangeleenthede in hierdie saak was die vraag tot watter mate appèl na 'n Minister moontlik is wanneer 'n munisipaliteit 'n besluit neem rondom heffings vir die verskaffing van waterdienste (vir huishoudelike en industriële gebruik). Hierdie artikel handel met die minderheidsuitspraak van Regter Jafta in die Grondwetlike Hof en ondersteun die regter se interpretasie wat stel dat dit ongrondwetlik is vir die nasionale regering om as appèlliggaam in te tree in soverre dit 'n munisipaliteit se uitoefening van 'n oorspronklike bevoegdheid aangaan. Die artikel maak spesifiek melding van die moontlike wysiging van artikel 8 van die Wet op Waterdienste 108 van 1997 ten einde die genoemde ongrondwetlikheid aan te spreek
The transformative potential of the constitutional environmental right overlooked in Grootboom
Full text linkIt is axiomatic that Grootboom (Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) hereinafter "Grootboom") remains the hallmark of the Constitutional Court’s success in terms of its transformative socio-economic rights jurisprudence. In this regard, De Vos has argued that lawyers and legal academics who wish to pursue the transformative possibilities of the Bill of Rights may find much to assist them in the Grootboom case. One of the reasons for De Vos’s recommendation is that the Court acknowledged the transformative nature of the Constitution in this Case and strongly asserted the interrelated, interdependent and mutually reinforcing nature of the rights in the Bill of Rights in achieving the transformative objectives of the Constitution. The purpose of this article is to reflect on the court's transformative jurisprudence in Grootboom and to argue that, although the court strongly asserted the interrelated and interdependent nature of the variety of rights in Bill of Rights in fostering the transformative vision of the Constitution, it failed to highlight the centrality of the section 24 environmental right in fostering that vision. This article argues that the realization of elements of the section 24 environmental right are indispensible to the realization of rights that are generally perceived as having transformative potentials - rights entrenched in sections 26(1) and 27(1) of the Constitution. Drawing from a variety of sources, this article demonstrates the intersection between these rights and argues that the fulfilment of the section 24 environmental right can also contribute to the transformative vision of the Constitution
Public participation in decentralised governments in Africa: making ambitious constitutional guarantees more responsive
Full text linkFollowing the example of South Africa, Kenya, Tunisia and Zimbabwe have recently adopted constitutions that contain bills of rights, embrace the ideals of decentralisation and profess a commitment to participatory democracy. In these countries, different forms of local government are constitutionally protected and accorded some degree of self-governing powers. As part of the state's overarching governance machinery, these governments are obliged to contribute towards the realisation of constitutionally-defined objectives, including a variety of constitutionally-entrenched rights, the pursuit of social justice and sustainable development. As the level of government closest to communities, a local government is constitutionally obliged to facilitate public participation in local governance. In South Africa, the Constitutional Court has interpreted the scope of the government's obligation to facilitate public participation in policy formulation and law-making processes extensively. The article explores the Court's jurisprudence on the nature and extent of the duty to facilitate public participation in order to distil lessons that could guide local authorities in Kenya, Tunisia and Zimbabwe to optimise the quality of public participation in local governance. I argue that, if implemented, guidelines distilled from the Court's jurisprudence could help optimise the quality of public participation at the local level in the various countries
A Critical Investigation of the Relevance and Potential of IDPS as a Local Governance Instrument for Pursuing Social Justice in South Africa
Full text linkUnlike the situation in the past, when local government’s role was limited to service delivery, local government is now constitutionally mandated to play an expanded developmental role. As a “co-responsible” sphere of government, local government is obliged to contribute towards realising the transformative constitutional mandate aimed at social justice. South African scholars and jurists share the view that social justice is primarily concerned with the eradication of poverty and extreme inequalities in access to basic services, and aims to ensure that poor people command sufficient material resources to facilitate their equal participation in socio-political life. In order to enable municipalities to fulfil their broad constitutional mandate, the system of integrated development planning (IDPs) came into effect in South Africa in 2000. Each municipality is obliged to design, adopt and implement an integrated development plan in order to achieve its expanded constitutional mandate. The IDP is considered to be the chief legally prescribed governance instrument for South African municipalities.
The purpose of this article is to explore and critically investigate the relevance and potential of IDPs in contributing towards the achievement of social justice in South Africa. This article argues inter alia that the multitude of sectors that converge in an IDP makes it directly relevant and gives it enormous potential to contribute towards social justice because, depending on the context, municipalities could include and implement strategies that specifically respond to diverse areas of human need. In this regard, the legal and policy frameworks for IDPs provide a structured scheme that could be used by municipalities to prioritise and meet the basic needs of especially the poor. Despite its potential, it is argued that the ability of IDPs to respond to the basic needs of the poor is largely constrained by a series of implementation challenges partly attributed to the underlying legal and policy framework
Constitutional Basis for the Enforcement of ''Executive'' Policies that give effect to Socio-Economic Rights in South Africa
Full text linkAlthough "executive" policies remain an important governance tool, there appears to be confusion on the status and possible basis for their judicial enforcement in South Africa. The aim of this article is to critically reflect on the status and possible constitutional basis for the enforceability of "executive" policies that give effect to socio-economic rights in South Africa. Based on the jurisprudence of courts and some examples of "executive" policies, this article demonstrates that the constitutional basis for the enforceability of "executive" policies could be located inter alia in the positive duties imposed on government by sections 24(b), 25(5), 26(2) and 27(2) of the Constitution to "take reasonable legislative and other measures" within the context of available resources to give effect to relevant rights. This article argues that these duties amount to a constitutional delegation of authority to the legislative and executive branches of government to concretise socio-economic rights. In addition, this article demonstrates that where "executive" policies give effect to socio-economic rights pursuant to powers delegated by enabling provisions in original legislation that covers the field of socio-economic rights, such policies may be perceived to have the force of law, thereby providing a legal basis for their judicial enforcement
Implementation of Chapter 21 of the UN Agenda 21: a case study of municipal solid waste management in the Bamenda urban council area of Cameroon
No full textIn recent times, the world has witnessed inreasing environmental degrading resulting from increased atmospheric concentration of green house gases. This has led to increased global warming and climate change. The waste management sector is vital because of its general association with the generation of green house gases. By endorsing the United Nations Agenda 21, Cameroon agreed to the implemetation of its Chapter 21 which calls for the achievement of sustainable waste management in country parties. The purpose of this article is to critically evaluate, Municipal Solid Waste Management (MSWM) at the level of the Bamenda Urban Council Area (BUCA) of Cameroon. To better contextualize this discussion, the authors briefly evaluate Cameroon’s legal, institutional, policy and strategic framework for MSWM. Using empirical data, this article argues that Municipal Solid Waste Management in the BUCA is unsustainable and suggests that practice should transit from open dumping to one which reflects the inverted waste management hierarchy. It is further suggested that, the effective use of legal, economic and voluntary policy instruments can contribute to efficient MSWM particularly in the BUCA
Bridging the public-private regulatory divide: South African mines and the right of access to water
No full textIn this article we explore the extent to which the South African mining industry can contribute to realising positive obligations stemming from socio-economic rights, and in particular, the right of access to water. Our hypothesis is that government, as the primary addressee of socio-economic rights obligations, is unable fully and on its own to realise the right of access to water in South Africa. Because of the ecological impact of mines on water resources and resultant socio-economic externalities that are passed on to society, we argue that mines must contribute to the South African transformative constitutional agenda by realising, albeit in a limited way, positive obligations related to the right of access to water. Our analysis is situated at the interface of three conceptual frameworks within which we theoretically embed the inquiry: the movement from government to governance and the involvement of non-state actors in governance tasks, corporate social responsibility, and human rights obligations of corporations. We suggest in the final instance that a practical way for mines to contribute to the realisation of the right of access to water could be through their statutorily prescribed social and labour plans
In the face of judicial deference: taking the “minimum core” of socio-economic rights to the local government sphere
Full text linkDomestic Manifestations of International Law's Right to Water: A Comparative Analysis of Emerging Rights Obligations in Finland and South Africa
No full text Against the backdrop of the content and specific obligations arising from the right to water in international law, this article compares how the legal regimes in Finland and South Africa protect the right to water. The discussion shows that both countries provide two extensive and very different constitutional frameworks to regulate the right to water. Variances in approach at the domestic level is attributed to differences in legal cultures, hydrological circumstances and stages of socioeconomic development. It is argued that diverse development challenges may justify the need for different legislative and other measures to realise the right to water at the domestic level. </jats:p
South African law perspectives on the promotion of public value in local government
Full text linkDoctor of Laws in Law and Development, North-West University, Potchefstroom Campus, 2024This study examines the extent to which South African local government law and policy instruments promote the so-called public value approach in local governance. To achieve this, this study reviews the theoretical framework that underpins public value. It uses doctrinal legal research to trace how the historical development of local government in South Africa influenced the present status of municipalities and public perceptions of the creation of public value. The study further uses the same method to delve into the present state of local government, particularly the dysfunction of municipalities, to reveal that the current situation facing local communities as a result of the collapse of local government does not accord with the constitutional, policy and statutory framework on local government, as these provide for the creation of public value by municipalities, albeit without expressly saying so.
The analysis reveals that municipalities operate within a legal structure that establishes at least three principal local government instruments for the creation of public value, namely, Integrated Development Plans, annual municipal budgets and annual municipal reports. These instruments reinforce one another and can be used to create public value through accountable, transparent, responsive, trusted, and legitimate municipalities that provide quality, efficient, and effective service delivery. The study examines if and how the metropolitan municipalities in the Gauteng Province of South Africa, namely the City of Ekurhuleni, the City of Tshwane and the City of Johannesburg, use these three instruments to create public value to demonstrate that these three instruments may be leveraged to create public value; the case studies reveal that Integrated Development Plans, municipal annual budgets and annual municipal reports provide for all the tenets of public value as traditionally understood in related disciplines. The study finds that the collapse of local government in South Africa is an indication of the failure to infuse a public value approach in local governance. The thesis concludes by offering recommendations for improving public value in local government.-North-West UniversityDoctor of Philosophy (Ph.D.
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