Southern African Public Law 2022-05-05T08:42:05+00:00 Babatunde Olaitan Fagbayibo Open Journal Systems <p><em>Southern African Public Law</em> is an accredited journal and is published bi-annually. It aims to stimulate debate about public law issues and provides a forum for discussion and critical reflection on a variety of public law issues, from the theory and practice of human rights, to constitutional and administrative law, environmental law, regional government and land reforms. It publishes contributions in the fields of constitutional and administrative law, human rights, constitutional and statutory interpretation, public international law, legal and constitutional theory, environmental law, local government law and closely related fields. <em>Southern African Public Law (SAPL)</em> intends to provide space for deliberation to academics and intellectuals from the Southern African Development Community in the field of public law.</p> Testing the Right to Vote in Free, Fair, and Regular Local Government Elections in South Africa: Challenges from the COVID-19 Pandemic 2021-11-04T09:49:19+00:00 Felix Dube <p class="Abstract"><span lang="EN-GB">This article uses the doctrinal legal research method to examine the challenges that faced South Africa in preparing for the 2021 local government elections. The health risks posed by the COVID-19 pandemic led the national executive to promulgate emergency health regulations and impose lockdowns to combat the spread of the coronavirus. Inadvertently, these measures threatened the freeness and fairness of the local government elections by restricting political mobilisation and freedom of movement and association. They also led the Electoral Commission to attempt, through an inquiry and a court application, to postpone the 2021 local government elections. The discussion shows that contrary to its contentions on the impossibility of holding the elections in 2021, the Electoral Commission had unwittingly demonstrated that it was well-prepared to mitigate the risk of COVID-19 infections. This article concludes that a postponement of the elections was not warranted and would have led to legitimacy and constitutional crises. It would have undermined the democratic foundation of the South African Constitution and would have unlawfully infringed on the right to participate in free, fair, and regular elections.</span></p> 2022-05-05T00:00:00+00:00 Copyright (c) 2022 A Critical Analysis of Zimbabwe’s Non-implementation of Constitutional Injunctions on Devolution 2021-07-08T18:59:18+00:00 Paul Mudau Hoolo ‘Nyane <p class="Abstract"><span lang="EN-GB">Zimbabwe’s 2013 Constitution provides for a multi-level system of government whereby the government is constituted at national, provincial and local levels. Despite the new Constitution being relatively comprehensive about the devolution of powers to the subnational levels of government, the country is still trapped within the post-independence highly centralised unitary state design. Although the new Constitution was adopted in 2013, devolution has not yet been fully implemented in Zimbabwe. This non-implementation of the constitutional injunctions on devolution, almost a decade after the promulgation of the Constitution, brings into question the country’s commitment to the devolution of powers and constitutionalism. This article critiques this state of affairs, and identifies the politico-legal factors responsible for the country’s non-implementation of the constitutional injunctions on the devolution of powers to subnational levels of government. This article’s central thesis is that the full devolution of powers is one of the significant levers of constitutional transformation in Zimbabwe. </span></p> 2022-05-05T00:00:00+00:00 Copyright (c) 2022 Exploring the Adequacy of South African Water Law in Managing Non-revenue Water: A Focus on South African Cities 2022-02-13T11:11:18+00:00 Nicolene Renske Steyn <p class="Abstract"><span lang="EN-GB">South African cities face significant levels of water wastage and inefficient use, which hamper the supply of water services to communities. A primary reason for this is high levels of non-revenue water, also known as water losses. Non-revenue water includes all water lost through physical leakages, commercial losses and unbilled authorised use before it reaches the consumer. Non-revenue water is estimated at more than thirty-seven per cent on average in South African cities, and up to sixty per cent in many irrigation and municipal supply schemes. For cities to increase their water supply and to provide sufficient water to communities, they must drastically decrease non-revenue water to reconcile water withdrawals with supply. This article critically examines the country’s water laws and policies to determine the specific duties that cities have with regard to the challenge of non-revenue water. The article also seeks to determine the adequacy of the law in managing non-revenue water in cities. While it finds that the law provides adequately for the regulation of non-revenue water in cities, many duties overlap and the legal framework is fragmented. The author offers several recommendations, including the development of improved oversight measures to ensure that cities fulfil the duties expected of them. </span></p> 2022-05-06T00:00:00+00:00 Copyright (c) 2022 COVID-19, Women’s Rights, and the Rule of Law in Africa: Muddying the Waters 2022-01-25T08:56:28+00:00 Funmi Abioye <p class="AbstractCxSpFirst"><span lang="EN-GB">The COVID-19 pandemic has disrupted the global space. African countries and societies have been greatly impacted, economies have been brought to the brink, with already established legal mechanisms designed to ensure the functioning of societies, being tested to the limit. In response, the concepts of ‘national lockdown,’ ‘social distancing,’ ‘travel restrictions’ have become too familiar as governments move to try and protect their populations. These measures have had deleterious effects on law, the rule of law and the protection of rights guaranteed by constitutions and regional instruments. In virtually every aspect of life, human rights have suffered the direct and indirect consequences of governments’ responses to the pandemic. This is particularly more so in African states, and among the vulnerable members of the African population. It is said that women in Africa have borne the brunt of the impact of the pandemic during the measures implemented by States in attempts to curb and control the pandemic. </span></p> <p class="AbstractCxSpLast"><span lang="EN-GB">This article examines the impact of these responses on the rights of African women by drawing examples from South Africa. Constitutionalism and the rule of law are affected as rights are limited and at times derogated in an attempt to contain and control the pandemic. These derogations have had the unintended consequence of limiting the guaranteed rights of African women under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) and other international, regional and national legislative provisions. The necessary factors that States need to consider before imposing pandemic curtailment measures in future, are discussed and recommended </span></p> 2022-06-29T00:00:00+00:00 Copyright (c) 2022 Dignity for the Queer African: How the Right to Dignity in International Human Rights Law Imposes Obligations on All States to Protect Sexual Minorities 2021-10-06T09:00:34+00:00 Ayodele Sogunro <p>The right to dignity of sexual minorities has continued to be violated across Africa, necessitating the need to deploy national, regional, and global human rights to secure its promotion and protection. Human dignity is a central value of the international human rights normative system and over the last few decades, the international human rights system has generally accepted the notion that all humans are endowed with equal dignity. Although the concept of dignity itself and the scope of its application continues to be contested by states, human rights documents acknowledge the recognition of the inherent dignity of all persons without discrimination. Unfortunately, sexual minorities in Africa continue to be stripped of their dignity through acts of public and private humiliation; criminalisation of their identities under laws that specify penalties ranging from prison terms to the death sentence, and through hate speech and acts of violence. The application of the concept of human dignity to the protection of sexual minorities in Africa remains problematic in state law and policy. This article contends that, based on the state’s recognition and protection of the inherent dignity of human beings, all African states still owe obligations toward sexual minorities. To this end, this article examines the development of the concept of dignity in Western thought and its subsequent impact on international human rights law. It also teases out the meaning of dignity in international human rights law under global and regional jurisprudence with a view to highlighting the obligations of African states towards sexual minorities.</p> 2022-06-29T00:00:00+00:00 Copyright (c) 2022 Multilateralism and Management of Public Health Emergencies: A Case Study of the Africa Joint Continental Strategy for COVID-19 Outbreak 2021-11-05T00:59:54+00:00 Udoka Ndidiamaka Owie <p>As the world continues to grapple with a pandemic that struck in January 2020, the responses of governments and international organisations to control and combat it varied albeit with different levels of success. Some responses gave rise to nationalist as well as anti-multilateral and -international sentiments and actions, including the politicisation of the pandemic and a retreat from multilateral and international institutions of cooperation. However, the African Union’s response was a beacon of multilateralism as manifested by the adoption of an Africa Joint Continental Strategy for COVID-19 Outbreak. This instrument is a coherent and pervasive framework for combatting the pandemic and forms the basis of the continent’s response by informing the responses of the regional economic communities and member states. Despite this important outline of policy articulation that is geared towards informing policy convergence, the Africa Joint Continental Strategy remains under-analysed and under-appreciated as an example of agency, effectiveness, leadership, multilateralism and indeed sagacity.</p> 2022-06-29T00:00:00+00:00 Copyright (c) 2022 Prophecy and the Pandemic: The Vindication of Decolonial Legal Critical Scholarship 2021-11-05T08:08:37+00:00 Ntando Sindane <p><span style="font-size: 0.875rem;">The ongoing COVID-19 global pandemic offers the legal academy a special opportunity to reflect on various conceptual, ideational, and ideological questions that cleavage the academy and society. In this exposition, I embrace an exegetical-cum-legalist enunciation to analyse the material conditions that define the lives of the historically and presently colonised peoples of South Africa. In the main, this treatise advances two arguments: (1) that the present socio-economic conditions illustrate the decisive thrust of decolonial legal critical scholarship and its ability to predict the future; and (2) that critical approaches to the law constitute a legitimate intellectual prophetic engagement. I conclude by insisting that decolonial legal critical scholarship should be the cornerstone and a focal point of emphasis in the calls to shift [and decolonise] all facets of the law and its curriculum.</span></p> 2022-06-29T00:00:00+00:00 Copyright (c) 2022 Dismissal of an Employee for Failing to Follow COVID-19 Regulations: Eskort Limited v Mogotsi [2021] JR1644-20 (LC) 2022-02-17T15:15:45+00:00 Delani Mahhumane <p class="Abstract"><span lang="EN-GB">This case note discusses and analyses the COVID-19 impact that resulted in an employee’s dismissal for failing to follow COVID-19 regulations. The <em>Eskort Limited v Mogotsi</em> [2021] Jr1644-20 (LC) case is critically discussed because it establishes a precedent on how employees should take precautionary measures and the COVID-19 regulations in combating the virus at the workplace. This is the first case to assess the fairness of an employee’s dismissal for failing to follow COVID-19 requirements. This decision is reviewed in light of the lessons that may be drawn from workers who are careless and fail to take the required precautions to avoid the spread of COVID-19 in the workplace. COVID-19 policy regulations have imposed certain regulatory measures on businesses in order to implement proactive interventions that could slow down the spread of the virus. The objective of these procedures is for the purpose of saving human lives.</span></p> 2022-06-29T00:00:00+00:00 Copyright (c) 2022 Déjà Vu: A Fictional take on the Repeated History of Pandemics and IP Law 2021-11-16T07:33:14+00:00 Rafia Akram de Gama <p>This artistic work takes one into the mind of someone at the forefront of academic and activist work returning to activism. The work explores how the past is being repeated today, yet again. The movement forward to change our laws to provide healthcare from the AIDS pandemic to the COVID-19 pandemic has been painfully slow and there is a need yet again for academic activists.</p> 2022-06-29T00:00:00+00:00 Copyright (c) 2022