scholarly journals IN LIGHT OF ‘NKANDLA’, WHAT IS THE ROLE OF THE PUBLIC PROTECTOR IN UPHOLDING THE RULE OF LAW IN SOUTH AFRICA?

2016 ◽  
Author(s):  
Aadelah Shaik Yakoob
Keyword(s):  
South Africa ◽  
South African ◽  
Rule Of Law ◽  
Economic Freedom ◽  
National Assembly ◽  
The Rule Of Law ◽  
The Public ◽  
Freedom Fighters

The focus of this article will be to ascertain what role, if any, the Public Protector plays in achieving and upholding the rule of law as envisaged in section 1(c) of the Constitution. In doing so, I will assess the powers of the Public Protector as envisaged by the Constitution and supporting legislation and analyse the effect of recommendations made by the Public Protector. I will then offer a discussion on certain shortfalls within the legislation that have become a hindrance to the Public Protector achieving her mandate in practice. I will, further, highlight the importance of the powers of the Public Protector as an avenue to achieving the rule of law, and, offer an analysis of the judgments in South African Broadcasting Commission v Democratic Alliance and Economic Freedom Fighters v Speaker of the National Assembly. I will, finally, conclude by discussing possible solutions to the challenges faced by the Public Protector in practice and offer a summary of my views.

The Powers of the South African Public Protector: A Note on Economic Freedom Fighters v Speaker of the National Assembly

2020 ◽  
pp. 1-20
Author(s):  
Mtendeweka Mhango ◽  
Ntombizozuko Dyani-Mhango
Keyword(s):  
South African ◽  
Economic Freedom ◽  
Constitutional Court ◽  
National Assembly ◽  
Binding Effect ◽  
The Public ◽  
Freedom Fighters ◽  
Lower Courts ◽  
History Of ◽  
Remedial Actions

Abstract The scope of the powers of the Public Protector was one of the main questions for determination by the Constitutional Court in the landmark case ofEconomic Freedom Fighters vs Speaker of the National Assembly. This note critically examines that case, especially in relation to its finding that the remedial actions of the Public Protector have a binding effect. The note argues that the court erred by ignoring the text and history of the Constitution in its interpretations of the powers of the Public Protector. We argue that the Court got it wrong when it dismissed an argument that the powers of the Public Protector should be sourced from the Public Protector Act and not directly from the Constitution. In its critical analysis ofEconomic Freedom Fighters vs Speaker of the National Assembly, the note engages with two other related decisions from lower courts.

Protecting taxpayer information from the public protector – A ‘just cause’?

2020 ◽  
Vol 6 (2) ◽  
pp. 190-211
Author(s):  
Fareed Moosa
Keyword(s):  
Shock Waves ◽  
South African ◽  
Rule Of Law ◽  
Due Process ◽  
Criminal Sanction ◽  
Just Cause ◽  
The Rule Of Law ◽  
State Institutions ◽  
The Public ◽  
Gain Access

Under the Tax Administration Act, 2011 (TAA), taxpayers enjoy a right to privacy of information disclosed to the South African Revenue Service (SARS). This note shows that tax officials are obliged to protect the secrecy thereof. It is argued that the Commissioner for the SARS correctly resisted compliance with a subpoena issued by the Public Protector for access to the records of former President Jacob Zuma. If it acquiesced without objection, shock waves would have reverberated through South Africa’s tax community. It is contended that the Commissioner’s decision to maintain taxpayer secrecy under pain of a potential criminal sanction contributed to restoring some of the lost confidence and respect for the SARS which has, in recent times, endured reputational damage owing to internal squabbles which morphed into public scandals. This note hypothesises that CSARS v Public Protector is good authority for the proposition that governmental departments and state institutions not expressly mentioned in s 70 of the TAA do not have statutory rights of access to taxpayer information and must, to gain access, follow due process. This note argues that the judgment in casu is not only a victory for taxpayer rights but also for the rule of law.

Reason, argument, and agitation

2020 ◽  
pp. 417-449
Author(s):  
David A. Clark
Keyword(s):  
South Africa ◽  
South African ◽  
Community Action ◽  
Amartya Sen ◽  
Democratic Deficit ◽  
Joint Work ◽  
The Public ◽  
Positive Results ◽  
India And China

Amartya Sen has argued that democracy has intrinsic and instrumental significance for economic and social development. In joint work with Jean Drèze, he has shown that democratic pressures can produce positive results in democratic and non-democratic nations alike. An Uncertain Glory briefly discusses the BRIC (Brazil, Russia, India and China) nations in this regard, but is inexplicably silent about South Africa (the final member of the BRICS). Can South Africa follow in the footsteps of the BRIC nations? Or might the South African brand of democracy really fall short? Reaffirming Drèze and Sen’s conclusion for India, this chapter argues there are grounds to be ‘contingently optimistic’ about the role of public participation in South Africa—despite the massive democratic deficit the country has inherited. This is illustrated through three case studies of participation focusing on pressure for HIV/AIDS treatment, the role of the public protector, and community action in Bokfontein.

scholarly journals THE PARTICIPATION OF THE PROSECUTOR IN CIVIL PROCEED-INGS AS A GUARANTEE OF ENSURING THE EFFECTIVENESS OF LEGAL PROTECTION. SOME REMARKS

2017 ◽  
Vol 28 (1) ◽  
pp. 9-22
Author(s):  
Joanna Misztal-Konecka
Keyword(s):  
Rule Of Law ◽  
Public Interest ◽  
Legal Protection ◽  
Great Caution ◽  
The Rule Of Law ◽  
The Public ◽  
Civil Proceedings ◽  
The Moment ◽  
Civil Matter

The role of the prosecutor in the legal system is traditionally perceived in the context of performing tasks relating to the prosecution of offences and upholding the rule of law. It is worth mentioning, however, that pursuant to Article 7 sentence 1 of the Code of Civil Procedure the prosecutor may petition to institute proceedings in any civil matter as well as participate in any pending proceedings if he considers his presence necessary to protect the rule of law, citizens’ rights or social interest. While the broad competence range of the prosecutor in civil proceedings has been assessed with high criticism in the literature on numerous occasions, it is with great caution that one should view possible tendencies towards exclusion of the prosecutor as an attendant of proceedings, without affiliation to either party, when the public interest calls for their participation. Especially in the cases where the court notifies the prosecutor of the need to participate in proceedings, one ought to conclude that it is the moment when the principle of effective legal protection becomes most fully realized through equalizing the litigious position of the parties and prevention of the occurrence of a defect which might invalidate the proceedings. The author postulates transforming notification of the need to participate in proceedings served on the prosecutor into summons for attending it.

scholarly journals The South African constitutional Court and the Rule of Law: The Masethla Judgment, A Cause for Concern

2017 ◽  
Vol 13 (3) ◽  
pp. 467
Author(s):  
Rósaan Krüger
Keyword(s):  
South Africa ◽  
South African ◽  
Rule Of Law ◽  
Procedural Fairness ◽  
Constitutional Court ◽  
The South ◽  
Public Power ◽  
The Rule Of Law ◽  
The Republic

The rule of law as a foundational constitutional value constrains the exercise of public power but the precise limits of the constraints it sets are not well defined. In Masethla v President of the Republic of South Africa,[1] the majority of the Constitutional Court opted for an interpretation of this value that frees the President from adherence to the demands of procedural fairness when exercising certain constitutional powers. This note will investigate the soundness of that interpretation against the background of theoretical expositions of the rule of law and earlier Constitutional Court judgments.[1]      2008 1 BCLR 1 (CC).

The Importance of the Rule of Law in Governance

2019 ◽  
Vol 6 (1) ◽  
pp. 73-90
Author(s):  
Daham Smko Hussein ◽  
Kittisak Jermsittiparsert ◽  
Paiman Ahmad
Keyword(s):  
Rule Of Law ◽  
Developing World ◽  
Public Institutions ◽  
Role Of Government ◽  
The Rule Of Law ◽  
The Public ◽  
Main Thesis ◽  
Theoretical Foundations

The purpose of this paper is to critically analyze the theory of governance and the role of law. The paper attempts to provide a constructive understanding of the rule of law and governance clearly. This study is composed of three main parts; the first part examines the literature on the concept of governance and its solid theoretical foundations. The second part reviews rule of law and the role of government in the process of governance. Third part intends to broaden the understanding of how governance is affected by rule of law especially in the developing world. The last part of this study deals with the conclusions and findings. The theoretical relevance of this paper contributes to a better understanding of specific components and factors that interlink governance and rule of law together in the public institutions. The main thesis of this study is, to what extend governance is affected by the rule of law?

scholarly journals Perceptions of chiropractors in the eThekwini Municipality on the integration of chiropractic into the public healthcare sector of South Africa

2018 ◽  
Author(s):  
◽  
Natalie Davies
Keyword(s):  
South Africa ◽  
South African ◽  
Healthcare System ◽  
Chiropractic Profession ◽  
Healthcare Sector ◽  
Public Healthcare ◽  
Medical Doctors ◽  
The Public ◽  
Public Healthcare Sector

Background Currently, chiropractic is not incorporated into the South African public healthcare sector despite its emphasis on the values of wellness and health. This is due to a poor relationship with mainstream medical practitioners, the construct of chiropractic education and its long standing isolation within the healthcare system within South Africa. The public healthcare sector in South Africa is strained. Low back pain is one of the main reasons patients seek medical attention from primary medical doctors. A growing body of evidence is now emerging which supports the role of chiropractic in post-­surgical rehabilitation and the treatment of extraspinal non-­pathological musculoskeletal conditions. Based on the findings of these studies, an argument could be made for the transition of chiropractic from a mainly private practice base to one that would enable it to reach to the wider population in the public healthcare sector. Aim The aim of the research study was to explore and describe the perceptions that chiropractors have about the integration of the chiropractic profession into the South African public healthcare sector. Method A descriptive exploratory qualitative approach was used to guide the study. In-­ depth interviews were conducted with ten chiropractors within the eThekwini municipality. The main research question for this study was “What are the perceptions of chiropractors in the eThekwini Municipality on the integration of chiropractic into the public healthcare sector of South Africa?” The data was analysed through thematic analysis. Results The main themes that emerged were the role of chiropractic in the healthcare system, the integration of chiropractic into the healthcare sector and the challenges facing chiropractors in the healthcare system. The themes and sub-­ themes were as follows;; • Theme 1 Role of chiropractic in the healthcare system Sub-­theme 1.1 Primary contact for neuromuscular medicine. • Theme 2 Integration of chiropractors into the public healthcare sector Sub-­theme 2.1 Relief of overworked healthcare workers. Sub-­theme 2.2 Decrease costs in surgical and medication use. Sub-­theme 2.3 Increased learning opportunities. Sub-­theme 2.4 Use of chiropractic in post-­surgical care. Sub-­theme 2.5 Need for pre-­surgical assessment. Sub-­theme 2.6 Integration facilitated by the Chiropractic Association of South Africa (CASA). • Theme 3 Challenges facing chiropractors in the public healthcare sector Sub-­theme 3.1 Opposition from medical doctors. Sub-­theme 3.2 Opposition from within the chiropractic profession. Sub-­theme 3.3 Inability to function as the primary practitioners. Sub-­theme 3.4 Unfamiliar structure of the public health care sector. Conclusion A lack of clarity on the identity and role of chiropractic in the public healthcare sector emerged from the findings of this study. Individual chiropractors, the professional body (CASA) and the Allied Health Professions Council of South Africa (AHPCSA) need to engage in active roles in the integration of chiropractic into the public healthcare sector of South Africa.

scholarly journals THE RULE OF LAW IN INDIAN ADMINISTRATIVE LAW VERSUS THE PRINCIPLE OF LEGALITY IN SOUTH AFRICAN ADMINISTRATIVE LAW: SOME OBSERVATIONS

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Radley Henrico
Keyword(s):  
South Africa ◽  
South African ◽  
Rule Of Law ◽  
Administrative Law ◽  
Indian Constitution ◽  
The Rule Of Law ◽  
Life Assurance ◽  
Equivalent Expression ◽  
The Republic ◽  
Principle Of Legality

The rule of law is expressly mentioned in the Constitution of the Republic of South Africa, 1996. The principle of legality has flourished in South African administrative law since its recognition and reception into our law in Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC). The Indian Constitution does not contain an equivalent expression of the rule of law. Notably, how persons and societies in India govern themselves is premised upon beliefs akin to the rule of law. Moreover, Indian administrative law has been strongly influenced by the theory of the rule of law as advocated by Dicey. Whilst Indian administrative law relies heavily upon the rule of law to judicially review conduct that is capricious, South African administrative law has come to rely on the incident of the rule of law, namely the principle of legality. This contribution inspects some of the reasons why the rule of law is heavily relied on in Indian administrative law – where it essentially mirrors the South African administrative law principle of legality. This contribution also suggests reasons as to why the principle of legality is so prevalent in South African administrative law as opposed to merely the rule of law as employed by the Indian courts in Indian administrative law.

The settlement of disputes of a constitutional nature: inside the Romanian Constitutional Court s rulings on the role and competences of the public authorities

2018 ◽  
pp. 51-70
Author(s):  
TUDOREL TOADER
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
The Subject ◽  
Constitutional Justice ◽  
Settlement Of Disputes

The separation and balance of State powers constitute the basis of the rule of law. Observance of this principle requires framing of public authorities within the limits of competence established by the Constitution and the law, as well as loyal cooperation between them. From this perspective, the attribution of the constitutional courts for settling legal disputes of a constitutional nature is an important tool for correcting the tendencies of violation of these limits, as well as for identifying solutions for situations that do not find an explicit regulation in the constitutional texts. The present study analyses the jurisprudence of the Constitutional Court of Romania in the field of legal disputes of a constitutional nature, revealing, together with the presentation of dispute situations, the vulnerabilities of the constitutional reference texts. It is also highlighted the role of the constitutional courts in the evolution of constitutional law institutions. The conclusion of the study, beyond the subject of legal disputes of a constitutional nature, bears on the necessity, even more so in this matter, of the certainty of jurisdictional interpretation. This certainty cannot be achieved as long as the interpretation is not authoritative; consequently, the assurance of the effectiveness of constitutional justice constitute a key issue of the rule of law.

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