Southern African Public Law https://unisapressjournals.co.za/index.php/SAPL <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> Unisa Press en-US Southern African Public Law 2219-6412 Multilateralism and Management of Public Health Emergencies: A Case Study of the Africa Joint Continental Strategy for COVID-19 Outbreak https://unisapressjournals.co.za/index.php/SAPL/article/view/10290 <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> Udoka Ndidiamaka Owie Copyright (c) 2022 2022-06-29 2022-06-29 37 1 15 pages 15 pages 10.25159/2522-6800/10290 Prophecy and the Pandemic: The Vindication of Decolonial Legal Critical Scholarship https://unisapressjournals.co.za/index.php/SAPL/article/view/10144 <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> Ntando Sindane Copyright (c) 2022 2022-06-29 2022-06-29 37 1 13 pages 13 pages 10.25159/2522-6800/10144 Dismissal of an Employee for Failing to Follow COVID-19 Regulations: Eskort Limited v Mogotsi [2021] JR1644-20 (LC) https://unisapressjournals.co.za/index.php/SAPL/article/view/9718 <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> Delani Mahhumane Copyright (c) 2022 2022-06-29 2022-06-29 37 1 11 pages 11 pages 10.25159/2522-6800/9718 Editorial: Another Day, Another COVID-19 Special Issue: A Vital ‘Bandwagon’ https://unisapressjournals.co.za/index.php/SAPL/article/view/11604 Babatunde Fagbayibo Mutondi Mulaudzi Mmatsie Mooki Kedibone Chembe Copyright (c) 2022 2022-07-27 2022-07-27 37 1 2 pages 2 pages 10.25159/2522-6800/11604 Exploring the Adequacy of South African Water Law in Managing Non-revenue Water: A Focus on South African Cities https://unisapressjournals.co.za/index.php/SAPL/article/view/10340 <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> Nicolene Renske Steyn Copyright (c) 2022 2022-05-06 2022-05-06 37 1 26 pages 26 pages 10.25159/2522-6800/10340 Dignity for the Queer African: How the Right to Dignity in International Human Rights Law Imposes Obligations on All States to Protect Sexual Minorities https://unisapressjournals.co.za/index.php/SAPL/article/view/10066 <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> Ayodele Sogunro Copyright (c) 2022 2022-06-29 2022-06-29 37 1 23 pages 23 pages 10.25159/2522-6800/10066 COVID-19, Women’s Rights, and the Rule of Law in Africa: Muddying the Waters https://unisapressjournals.co.za/index.php/SAPL/article/view/10281 <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> Funmi Abioye Copyright (c) 2022 2022-06-29 2022-06-29 37 1 21 pages 21 pages 10.25159/2522-6800/10281 Statelessness and COVID-19 in South Africa https://unisapressjournals.co.za/index.php/SAPL/article/view/10244 <p>The COVID-19 pandemic has emphasised the plight of the stateless in South Africa. Statelessness is a pandemic on its own and has been regarded as ‘a forgotten human rights crisis.’ The consequence of statelessness is the inability to access internationally and democratically recognised human rights standards and protections due to a stateless person not having a nationality. The declaration of the State of Disaster in South Africa in March 2020 and the ensuing stages of lockdowns, testing and access to vaccinations have been put into place to curb the infection rate of COVID-19. Such interventions are available to nationals, non-nationals, refugees and asylum seekers, but those who are stateless encounter challenges in accessing socio-economic rights granted by the government. The inability of the stateless to access basic services such as access to health facilities, food, shelter, sanitation, vaccinations and protection have been exacerbated by the COVID-19 pandemic. Despite international and regional laws guaranteeing the protection of those who are stateless and the South African constitutional dispensation, socio-economic hardships affect the stateless who do not have a nationality. Against this background, this article outlines what statelessness is, it examines good practices in countries such as the United Kingdom, Spain, Portugal, Kenya and Uganda in relation to statelessness and access to COVID-19 vaccinations. It suggests that in addition to good practices, ubuntu must be the basic value that underpins the transformation of nationality laws. Even though some advances have been made to provide a separate registration platform for the stateless to access vaccinations, much work needs to be done still before a permanent solution is found.</p> Vhonani Sarah-Jane Neluvhalani Copyright (c) 2022 2022-07-05 2022-07-05 37 1 28 pages 28 pages 10.25159/2522-6800/10244 The COVID-19 Pandemic and Education during a State of Emergency: Re-assessing the Right to Education of Children with Disabilities in Nigeria https://unisapressjournals.co.za/index.php/SAPL/article/view/10175 <p class="Abstract"><span lang="EN-GB">The COVID-19 outbreak necessitated UNESCO’s declaration of a state of emergency regarding education. The physical and social distancing approach to curb the spread of the virus made way for the adoption of distance learning, which was meant to be inclusive. This article examines conceptual and historical perspectives to determine whether distance education was adequate towards acting in the best interests of the child with disabilities. The needs of disabled children may vary and ‘a one size fits all’ approach cannot always satisfy these, especially not in an environment where social barriers exist. During the state of emergency, it was expected that the Nigerian government would provide an environment where children with disabilities received the desired support. The article also seeks to establish whether children with disabilities had access to digital and mass communication devices to connect them to distance education and also if the state of infrastructure was satisfactory in coping with the obligations of the government towards inclusive education before and after the pandemic, especially under COVID-19 distance education. Furthermore, the article will focus on the level of tolerance and co-existence between able-bodied children and those with disabilities, comparing the pre- and post-COVID-19 eras. It investigates whether inclusive education and peaceful co-existence could be achieved by adopting indigenous languages in schools and having recourse to African legal tradition.</span></p> Olaniyi Felix Olayinka Copyright (c) 2022 2022-07-27 2022-07-27 37 1 20 pages 20 pages 10.25159/2522-6800/10175 Testing the Right to Vote in Free, Fair, and Regular Local Government Elections in South Africa: Challenges from the COVID-19 Pandemic https://unisapressjournals.co.za/index.php/SAPL/article/view/10125 <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> Felix Dube Copyright (c) 2022 2022-05-05 2022-05-05 37 1 22 pages 22 pages 10.25159/2522-6800/10125 The Obligations of Governments and Big Pharma Regarding Equitable Vaccine Supply https://unisapressjournals.co.za/index.php/SAPL/article/view/10092 <p class="Abstract"><span lang="EN-GB">The COVID-19 pandemic has wreaked havoc the world over, simultaneously creating opportunities for some, including ‘Big Pharma.’ Governments continue to have the obligation for managing the pandemic, and many governments delegated the responsibility for vaccine supply to Big Pharma. Developed countries generously funded vaccine development, while reserving the first option to purchase the vaccines for themselves, thus being accused of vaccine hoarding. Concurrently, Big Pharma has disclaimed liability for any side effects caused by the virus, and any obligation to share its vaccine intellectual property. This left most of the world, particularly the Global South, in a precarious position regarding vaccine supply. This article discusses the obligations of governments to their own people and to the rest of the world and the obligations of Big Pharma, specifically regarding equitable vaccine supply during the COVID-19 pandemic. To articulate its arguments for vaccine equity, the author relies primarily on the right to dignity and attempts to balance this right against the seemingly conflicting interests of the Global North. The vaccine equity issue is an intersectional issue perpetuated by systemic inequalities affected by a myriad of factors including historical power imbalances. It is argued that all parties need to act to overcome the pandemic, especially states and companies in the Global North. This would be consistent with international policy and legal environment and the requirements of global justice.</span></p> Lyatitima Ernest Mate Copyright (c) 2022 2022-07-27 2022-07-27 37 1 25 pages 25 pages 10.25159/2522-6800/10092 Déjà Vu: A Fictional take on the Repeated History of Pandemics and IP Law https://unisapressjournals.co.za/index.php/SAPL/article/view/10347 <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> Rafia Akram de Gama Copyright (c) 2022 2022-06-29 2022-06-29 37 1 5 pages 5 pages 10.25159/2522-6800/10347