Research Articles (Public Law)
Recent Submissions
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Fundamental rights and democratic contestation : reflections on freedom of assembly in an unequal society
(Faculty of Law, University of the Western Cape, 2017)In this article, I argue that the impoverished conception of freedom of assembly displayed in legislation and case law, and its neglect in academic literature, has to do with a set of dominant understandings of democracy. ...
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The rights of foreigners : dignity, citizenship and the right to have rights
(Juta Law, 2013-01)This article examines the rights of foreign nationals in view of Hannah Arendt's thesis that human rights amount to little when severed from the rights of members of a concrete political community. It considers three ...
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Beyond UNCITRAL : the challenges of procurement reform implementation in Africa
(Juta Law Publishing, 2014-01)Most of the countries in sub-Saharan Africa have undergone some form of public procurement reform in the last two decades. This reform usually takes the form of the passage of new procurement regulation, which is usually ...
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Re-defining national sovereignty : the key to avoid constitutional reform? Reflections on the 2011 Green Paper on Land Reform
(Juta Law Publishing, 2012-01)The results of post-apartheid land reform in South Africa have for a substantial period of time prompted scholars to ask key questions about the ability of law to achieve social change. Change in this case translating into ...
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Transformative constitutionalism in a democratic developmental state
(Juta Law Publishing, 2011-01)In order for socio-economic transformation to have a real impact on the lives of the poor and marginalised, meaningful participation in the development of law and policy as well as administrative decision-making, is required. ...
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Conceptualising "meaningful engagement" as a deliberative democratic partnership
(Juta Law Publishing, 2011-09)Nearly four years ago the Constitutional Court created the concept of "meaningful engagement" in Occupiers of Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg 2008 3 SA 208 (CC). The ...
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Privatisation of the commons : water as a right; water as a commodity
(Juta Law Publishing, 2011-09)This contribution seeks to propose an accountability framework for States and non-State actors involved in the provision and management of water services. The article contends that States have a legal obligation under ...
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The importance of the commons in the context of intellectual property
(Juta Law Publishing, 2013-01)The intellectual commons or public domain is an important part of intellectual property law scholarship. In this regard it is necessary to examine the origins of the commons, what exactly the intellectual commons is and ...
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Thinking two worlds into one : the "distribution of the sensible" and women's renegotiation
(Juta Law Publishing, 2013-01)In this note, the author reflects on the subjectivity of women through the lens of Jacques Rancière's formulation of the "distribution of the sensible". The author discusses the French revolutionary woman, Olympe de Gouges, ...
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The right to diplomatic protection, the Von Abo decision, and one big can of worms : eroding the clarity of Kaunda
(Juta Law Publishing, 2009-02)Von Abo v Government of the RSA [2008] JOL 22219 (T) contains certain significant findings regarding the right to diplomatic protection and, more generally, the discretion of states in the conduct of foreign affairs. ...
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Sexual harassment and vicarious liability: a warning to political parties
(Juta Law Publishing, 2008-01)INSTRODUCTION: The allegations that the former ANC chief whip, Mbulelo Goniwe, sexually harassed an administrative assistant working in that party’s parliamentary office has brought to light the immense power the special ...
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Human dignity in comparative perspective
(Juta Law Publishing, 2009-02)This article compares the role of human dignity in constitutional interpretation in Germany and South Africa. Both countries have embraced dignity as a direct response to a troubled and totalitarian past. Nowadays dignity ...
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Polish apartment ownership compared with South African sectional titles
(Juta Law Publishing, 2006)INTRODUCTION: The aim of this article is to compare the institution of apartment ownership in a former socialist country, Poland, with the institution of sectional titles in South Africa. We shall see that the seed of ...
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Duty to support and the dependant's claim: the struggle of women married in terms of customary and muslim law
(Juta Law Publishing, 2006-02)INTRODUCTION: Although the economic empowerment and independence of widows are generally dependent on the enforcement of their inheritance rights (and concomitant protection of property rights), a dependant’s successful claim ...
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Needs, rights and transformation: adjudicating social rights
(Juta Law Publishing, 2006-01)INTRODUCTION: One of the most contested issues in South Africa’s burgeoning jurisprudence on social rights relates to how the courts should enforce the duties imposed by these rights. Debate has focused in particular ...
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‘‘Subsidiarity’’: What's in the name for constitutional interpretation and adjudication?
(Juta Law Publishing, 2006-02)INTRODUCTION: ‘‘I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.’’ This ...
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Observations on the (un-) constitutionalty of section 118(3) of the local government: systems act 32 of 2000
(Juta Law Publishing, 2006-03)INTRODUCTION: Can section 118(3) of the Local Government: Municipal Systems Act1 (‘‘the act’’) withstand constitutional scrutiny – in terms of section 25(1) of the Constitution,2 to be more exact? The Constitutional Court ...
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South Africa's (possible) withdrawal from the ICC and the future of the criminalization and prosecution of crimes against humanity, war crimes and genocide under domestic law : a submission informed by historical, normative and policy considerations
(Washington University School of Law, 2017)The ANC-led Government’s decision in October 2016 to withdraw South Africa from the International Criminal Court (“ICC”) came as a shock to those who regard South Africa as a champion of international criminal justice ...
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Public procurement as a tool to drive innovation in South Africa
(North-West University, Faculty of Law, 2016)This article is an analysis of the use of public procurement as a tool to drive innovation. It explores the meaning of innovative procurement or public procurement of innovation, as well as the rationale for using public ...
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At the intersection between expropriation law and administrative law : two critical views on the Constitutional Court's Arun judgment
(Faculty of Law, North-West University, 2016-08)Abstract of article; "In Arun the Constitutional Court held that section 28 of the Land Use Planning Ordinance (LUPO) vests all land indicated as public roads on a development plan in the local authority upon approval of ...
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Die basiese-struktuur-leerstuk : 'n basis vir die toepassing in Suid-Afrika, of 'n skending van die skeiding van magte?
(LitNet, 2015-08)Die basiese-struktuur-leerstuk is in 1973 deur die hoogste hof van Indië ontwikkel in ’n poging om die misbruik van grondwetwysigings deur die dominante regerende party te voorkom. Die leerstuk bepaal dat, ten spyte daarvan ...
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Public purpose or public interest and third party transfers
(North-West University, Faculty of Law, 2014)In this article the difference between public purpose and public interest in section 25(2) of the 1996 Constitution is considered. It is generally accepted that public purpose is a narrower category than public interest ...
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The role of quality in the adjudication of public tenders
(North-West University, Faculty of Law, 2014)The quality of the goods or services that government procures is obviously a very important consideration in deciding which supplier should be awarded a particular public tender. It follows that in the regulation of public ...
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The mechanics of intervention and the green paper on land reform
(North-West University, Faculty of Law, 2014)The South African land control system has always, to some extent, been interfered with by government. Interventions in the course of the twentieth century in particular have resulted in an unequal, fragmented and diverse ...
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Dignity in Death : a critical analysis of whether the right to human dignity serves as appropriate justification for the legalisation of assisted death
(Stellenbosch : University of Stellenbosch, 2014-03)ENGLISH ABSTRACT : No English abstract available.
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Transformative legal education
(Juta Law, 2012)This article argues that significantly increased attention to theory (or theories) of legal education is not only imperative in order to improve the quality of legal education in South Africa, but is a crucial ingredient ...
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The contours of a pedagogy of law in South Africa
(Juta Law, 2015)Reform of legal education is currently a topic of debate in South Africa again. Reform in higher education can, however, be dangerous and counter-productive if it is driven purely by policy agendas and in the absence of ...
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Worse than losing a government tender : winning it
(Juta Law, 2008)In Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) the Constitutional Court held that an organ of state was not liable in delict for a successful tenderer's out-of-pocket losses following the setting ...
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Die reg se oenskynlike onvermoe om korrupsie in staatskontraktering in Suid-Afrika hok te slaan
(LitNet, 2013)Ten spyte van ’n aansienlike aantal afdwingbare regsreëls wat staatsverkryging in Suid-Afrika reguleer, word hierdie aspek van staatsadministrasie gekenmerk deur hoë vlakke van ongerymdhede. Veral korrupsie blyk hoogty te ...
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The potential of capstone learning experiences in addressing perceived shortcomings in LLB training in South Africa
(North-West University, Faculty of Law, 2014)Current debates about legal education in South Africa have revealed the perception that the LLB curriculum does not adequately integrate various outcomes, in particular outcomes relating to the development of skills in ...
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