Dreams and Realities for South Africa: Use of Official Languages Act, 2012

Language policies are the cornerstone that establish and maintain communication amongst people. Proper communication, particularly amongst speakers of many languages in a country such as South Africa hinges heavily on perceptions regarding the status of the languages used in that specific country. According to the Republic of South African Constitution (Act 108 of 1996), South Africa has eleven official languages. Nine of these official languages (the indigenous African languages), are regarded as historically disadvantaged, while the remaining two, viz. English and Afrikaans enjoyed official recognition under the then ‘apartheid’ era that lasted until 1994. The previously disadvantaged African languages still lag in terms of development, when compared to English and to a lesser extent, Afrikaans. To address this challenge and reverse the status quo, several measures have been undertaken by government, including the passing of an Act called, Use of Official Languages Act, 2012. This Act aims at managing the use of the official languages optimally, with special emphasis on the previously marginalised languages. South Africa is known for developing good language policies but often criticised for producing such good policies for one good purpose only - to display them in office shelves. Following this state of affairs, this article therefore examines the implementation challenges regarding this Act and suggest what could be done to successfully implement it in South Africa. Second, the article also seeks to alleviate the perceived apathy in implementing language policies, particularly in South Africa, and with implications for Africa as a whole.

Achieving the NDP 2030 agricultural agenda in UMzimkhulu: myth or possibility

The South African Constitution has often been adjudged one of the most progressive constitutions ever written. However, transforming the theoretical content of the Constitution into a reality has proved to be a challenge. Considering that, the NDP 2030 is widely acknowledged as a well-thought-out and structured plan, the converting of the NDP 2030 vision into reality is discussed amongst cynics, who often consider it as an unrealistic vision based on the current circumstances and timeframe. In consonance with the afore-narrative, this paper explores the current circumstances of the Agricultural sector within the UMzimkhulu Municipality and gauges against the agricultural agenda set forth in the NDP 2030. To unravel this nexus, the paper pursues a qualitative approach wherein face-to-face interviews were conducted amongst 63 farmers. Prior to the interview, a pretest was conducted to ascertain the suitability of the instrument. The professional personnel were from the Department of Agriculture and Rural Development; the Department of Water and Sanitation, alongside other key stakeholders within three farming projects in UMzimkhulu, KwaZulu-Natal, Province, South Africa. The conceding view amongst most of the respondents indicated that the agricultural plan outlined in the NDP 2030 was far from attainment considering the current resources, skills, personnel, and timeframe. Thus, the paper advocates several proactive mitigations such as capacitation, tailor-made investments, institutional reinvigoration, and formidable partnerships amidst other practicable recommendations.

An Afrasian Entanglement

The establishment of the Phoenix Settlement and the Gandhi Development Trust (GDT) in South Africa was an experiment in self-sufficient communal living and the promotion of the values and principles of Mahatma Gandhi and South Africa’s democratic Constitution, respectively. While both entities are the result of Gandhi’s South African connection, they serve to embody, through the Mahatma, an Afrasian Entanglement. Gandhi’s time in South Africa made a remarkable impact on him and the country, transforming his political and social positions and influencing its struggle for freedom. In post-apartheid South Africa, the shared mission of both organisations is to advance a culture of nonviolence, peace and social responsibility through a range of transformative programmes. This article details Gandhi’s South African journey, his evolving ideas of passive resistance and social reconstruction there, and the resultant legacy programmes that resonate with the spirit of Ubuntu and the South African Constitution to reinforce democracy.

My Own Liberator: A South African Story

Dikgang Moseneke was born in Pretoria, South Africa in December 1947. He was imprisoned on Robben Island, where most political prisoners were kept, off the coast of Cape Town for 10 years as a young man for his political activity. While in prison, he obtained a Bachelor of Arts degree in English and Political Science and later completed a Bachelor of Laws degree. After his release from prison, he was admitted as an attorney in 1978 and in 1983 was called to the Pretoria Bar as a Senior Counsel. During the 1980s he worked underground for the Pan-African Congress and became its deputy president when it was unbanned in 1990. Moseneke also served on the technical committee that drafted the interim South African constitution of 1993. After a corporate career between 1995 and 2001, President Thabo Mbeki appointed him to the High Court in Pretoria and in 2002 as a judge in the Constitutional Court. In June 2005, he became the Court’s Deputy Chief Justice, a position from which he retired in May 2016. In this essay, he chronicles his years of protest, political activity, and imprisonment as a young man. The essay is an excerpt from his memoir, My Own Liberator, which is published by Picador Africa (2018), and is available online and at all good bookstores.

Constitution-making: The round table model, popular participation & constituent assemblies

<p>In this paper, I will argue that the round table model is the ideal constitution making process. This is primarily because it gives clarity to the respective powers of the institutions involved in the process, and may prevent a dominant group or individual from unilaterally imposing a constitution. In building my argument, I outline the theory of constituent power and its corollaries of unlimited constitution making power and popular participation. I endeavour to portray the shortcomings of the theory itself, and, the dangers of its practical manifestation. Following this, I introduce the round table model as a preferable alternative, both theoretically and practically. To buttress my argument, I examine the Bolivian, Venezuelan, Russian and South African constitution making episodes.</p>

Constitution-making: The round table model, popular participation & constituent assemblies

<p>In this paper, I will argue that the round table model is the ideal constitution making process. This is primarily because it gives clarity to the respective powers of the institutions involved in the process, and may prevent a dominant group or individual from unilaterally imposing a constitution. In building my argument, I outline the theory of constituent power and its corollaries of unlimited constitution making power and popular participation. I endeavour to portray the shortcomings of the theory itself, and, the dangers of its practical manifestation. Following this, I introduce the round table model as a preferable alternative, both theoretically and practically. To buttress my argument, I examine the Bolivian, Venezuelan, Russian and South African constitution making episodes.</p>

SOME NOTABLE DIVERGENCES IN THE DEVELOPMENT OF SOUTH AFRICAN AND NAMIBIAN INSOLVENCY LAW

It is a well-known fact that the legal systems of South Africa and Namibia, or rather the former South West Africa, were rather identical until the advent of independence of the latter on 21 March 1990. This note thus deals with aspects of the development of insolvency law in South Africa and Namibia since Namibia became independent. What is also important is the fact that both Namibia and South Africa adopted a constitution that is based on a Bill of Rights (see the Constitution of the Republic of Namibia of 1990 and the South African Constitution of 1996). Some developments in insolvency law based on these features are therefore also considered in this note. As indicated, upon independence Namibia retained significant portions of South African law including its legislation. Owing to the shared background of Roman-Dutch-law and English-law influences, both Namibia and South Africa can still be classified as having mixed legal systems. Like South Africa, Namibian insolvency law is not contained in one single statute although it is still largely regulated by the South African inherited Insolvency Act 24 of 1936 (hereinafter “the Insolvency Act”), which deals first and foremost with the sequestration of individuals and related matters. Namibia also inherited the South African Companies Act 61 of 1973 but the South African Close Corporations Act 69 of 1984 was largely adopted as the Close Corporation Act 26 of 1988 that came into operation on 25 July 1994. These pieces of legislation, amongst others, deal with the liquidation or winding-up of companies and close corporations respectively. Apart from these statutory enactments, precedents and common-law principles also apply in the absence of specific statutory provisions. The Insolvency Act of 1936, however, remains the principal source of both South African and Namibian insolvency law and the other enactments render certain provisions of the Insolvency Act applicable. At present and as far as the principles are still comparable, precedents set by South African and Namibian courts remain relevant in both jurisdictions. In order to align some of the terminology with structures and developments in Namibia, the 1936 Insolvency Act was amended in a number of respects by the Namibian Insolvency Amendment Act 12 of 2005. The wording of the Insolvency Act was also thereby amended to make it gender-friendly. However, when dealing with either system it is important to ascertain to what extent statutes that applied in both jurisdictions have been adopted, subsequently amended and/or replaced. The Namibian government has for instance introduced a new Companies Act 28 of 2004 that is bound to replace the South African-based Companies Act of 1973. Although a new insolvency statute is not in the pipeline in Namibia, an amendment act to the 1936 Insolvency Act has been published during 2005 (the 2004 Companies Act was assented to on 19 December 2004 but it will only come into operation once so proclaimed). In South Africa a new Companies Act 71 of 2008 has been introduced but it is also still due to come into operation. New insolvency legislation that will unify the insolvency of individuals and companies is on the table in South Africa but it is not clear when this process will come to fruition. Another general feature is that judgments of the South African and Namibian high courts are clearly still influential in both jurisdictions but as amendments and separate legal developments will deviate from the former common norm, judgments will clearly have to be treated with circumspect in future. In the absence of a comprehensive textbook dealing with the Namibian version of insolvency law, South African textbooks will remain of some use to that jurisdictions but also subject to the same qualifications expressed above.

GOING GENTLY INTO THAT GOOD NIGHT: THE CONSTITUTIONALITY OF CONSENT IN CASES OF EUTHANASIA

Although consent is a justification ground in South African law, its applicability to cases of euthanasia has been the subject of controversy. It is submitted that relying on the distinction between omission and commission, or causation or intent will not prove useful in justifying mercy killing. In terms of the South African Constitution (and various human rights guaranteed therein), there may be compelling arguments for legalizing euthanasia. For instance, section 10 of the Constitution guarantees the right to dignity. A lack of control over your destiny essentially involves a loss of dignity. Further, the right to dignity and the qualified right to personal autonomy inform section 14: the right to privacy. This right holds that an individual can make certain fundamental private choices without state interference. Surely this would extend to how to end one’s life? This article advocates that a rights-based approach be used to inform the doctrine of consent. This would entail taking the victim’s shared responsibility into account thereby reducing the perpetrator’s fault.

DEFINING THE RIGHT TO STRIKE: A COMPARATIVE ANALYSIS OF INTERNATIONAL LABOUR ORGANIZATION STANDARDS AND SOUTH AFRICAN LAW

The right to strike is a fundamental human right recognized in international law and the South African Constitution. If “strike” is defined too narrowly it would deny protection that would normally be given to employees who would otherwise be participating in a strike. On the other hand if “strike” were defined too broadly it would categorize as strike action that would not normally be regarded as a strike: thus subjecting these employees to serious consequences that result from participating in an unprotected strike. These may include dismissals, interdicts and claims for compensation. South Africa has a constitutional obligation to comply with international law when interpreting human rights. The purpose of this article is to determine whether South African law defines “strike” in compliance with International Labour Organisation standards and to make suggestions for amendments to the lawwhere it fails to do so.