Book Review: In the Ruins of Neoliberalism by Wendy Brown

This review examines Wendy Brown's argument that neoliberalism led to the resurgence of antidemocracy in the West. It is argued that Brown's main arguments offer a valid explanation of the hard-right's appeal to conservatives in the United States. This ultimately led to an overwhelming support for Donald Trump as president of the U. S. The author exposes the antidemocratic effects of the Hayekian view of democracy, which is largely based on the support of free markets and traditional morality.

Justiciability of Socio-Economic Rights Under the Constitution of Malawi: Unbundling the Right to Development

Most governments in sub-Saharan Africa have for long steered away from giving legal force to socio-economic rights, even though political and civil rights have had due recognition for some time. The main reason is that socio-economic rights are polycentric, meaning their justiciability has resource implications which most governments cannot fulfil in a short space of time. There has been a shift though, since South Africa enacted its Constitution after 1994, ushering in a new period where socio-economic rights not only became recognised but they were also given legal force, albeit with limitations. Malawi followed suit and enacted a new Constitution in 1994 which was unlike the earlier ones that did not recognise socio-economic rights. The only anomaly is that the Constitution does not put all socio-economic rights under the Bill of Rights, meaning that even though some of these rights now have legal force, others such as the right to health do not. These were drafted as principles of national policy, which are just guidelines referred to when the government is making policy. There is a redeeming factor though, which is the right to development. This article contends that all the socio-economic rights that are recognised as principles of national policy do have legal force under the right to development. Even though the right to development is not qualified, the social rights under it are justiciable and it is up to the courts to give them the correct interpretation.

Restorative Justice as Another Way of Dealing with Bullying in South African Schools

Bullying has long been a serious problem in schools across the globe, including in South Africa. The traditional methods of dealing with disciplinary problems, such as bullying in schools, have had limited success in terms of stemming the rise of this phenomenon. Out of concern about the growing problem of bullying in schools, some countries have turned to restorative justice as a solution. International research shows promising results of restorative justice approaches in terms of their impact on countering bullying among learners. This paper explores restorative justice as another way of dealing with bullying in South African schools.

Access to Justice for Internally Displaced Persons: The Global Legal Order

Internally displaced persons are people who are uprooted from their social, economic, cultural and educational environment and made squatters or homeless within the jurisdiction of their own country. They consequently have no permanent place of abode. Internal displacement therefore becomes a situation that deprives individuals of access to justice and leads to violations of the human rights of categories of citizens. For example, women, children and the elderly are more vulnerable and lack social-economic assistance from their loved ones and family support because of their internal displacement. Their situation denies them access to justice from several perspectives, such as being in a state of despair, instability and uncertainty. This article examines the ways in which the domestication of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa of 2009 (the Kampala Convention) and clinical legal education can be used to promote access for internally displaced persons to justice and basic human rights. In this regard, the article further analyses access to justice for internally displaced persons through the teaching methodology of clinical legal education in African legal jurisprudence. Finally, the article recommends the involvement of legal clinicians and other practitioners as advocates of internally displaced persons’ access to justice, respect for human rights and the rule of law as a requirement for the domestication of the Kampala Convention by Member States in Africa.

Justice versus Social Justice in South Africa: Quo vadis?

This article explores the concept of criminal justice as a formal process in which parties are judged and often adjudged from the paradigmatic perspective of legal guilt versus legal innocence. While this function of a criminal-justice system is important – and indeed necessary – in any ordered society, a society in transition such as South Africa must question the underlying basis of justice. This self-reflection must include an overview questioning whether the criminal-justice system and its rules are serving the community as originally intended or have become a self-serving function of state in which the final pursuit is outcome-driven as opposed to process-driven. The process of reflection must invariably find its genesis in the question: ‘What is justice?’ While this rhetorical phraseology has become trite through overuse, the author submits that the question remains of prime importance when considered contemporarily but viewed through the lens of historical discourse in African philosophy. In essence, the question remains unanswered. Momentum is added to this debate by the recent movement towards a more human rights and restorative approach to justice as well as the increased recognition of traditional legal approaches to criminal justice. This discussion is wide and in order to delimit its scope the author relies on a Socratically influenced method of knowledge-mining to determine the philosophical principles underpinning the justice versus social justice discourse. It is proposed that lessons learned from African philosophies about justice and social justice can be integrated into modern-day justice systems and contribute to an ordered yet socially oriented approach to justice itself.

The South African National Minimum Wage: Potential or Concern?

The introduction of a South African national minimum wage has been received with mixed feelings. With the various perceptions in mind, this article considers the role that the South African national minimum wage will possibly assume in the South African context by deliberating on some concerns and the potential it holds based on foreign national evidence and the effect that sectoral determinations have had in South Africa. This article concludes by supporting the introduction of the South African national minimum wage. International evidence and sectoral determinations indicate that the common concerns are often inflated or unwarranted. This is not to say that these concerns should be disregarded, though. The impact and consequences of the South African national minimum wage should be carefully monitored throughout the implementation process in order to optimise its positive impact and minimise any possible negative consequences it may have.

Abolition of Slavery, Human Trafficking and Forced Labour Pespectives of International Law and Islamic Law – the Libya of the Post-Gaddafi Regime as a Case Study

Slavery, human trafficking and forced labour are anti-human and unacceptable practices that cut across cultures, nationalities, and dogmas, while taking on different dimensions. International law, Islamic law and various national laws have declared these practices illegal within their respective legal frameworks. However, owing to factors associated particularly with internationalism, including weak enforcement mechanisms, these practices have continued unabated around the world. The practices have taken on a new dimension in Libya because of the political turmoil in that country. This has opened doors for the transnational mafia to engage in the practices and has effectively made African youths easy prey. As a Muslim majority country, Libya is a member of the United Nations Organisation and Pan-African, Islamic and Arab organisations. It is therefore bound by the relevant laws of these international organisations aimed at eliminating the menace of slavery, human trafficking and forced labour that had become established practices in the country. If Libya has remained politically unsettled, it is necessary to ask the question: Can these international and Islamic norms be enforced? This article attempts to explore the historical background of slavery in Africa and its abolition through the instruments of both modern international law and Islamic law. It is also an attempt to contextualise Libya within the theoretical frameworks of those principles and their application in a country that is faced with challenges associated with the breakdown of law and order.

Unrest and Violence: 2018

In this issue of the Journal of Law, Society and Development, the most important measures and cases pertaining to crime statistics, truth and reconciliation, security services, arms and ammunition, terrorism and corruption that occurred during 2018 are discussed.

The Africanisation Of South African Civil Procedure: The Way Forward

Civil procedure enforces the rules and provisions of civil law. The law of civil procedure involves the issuing, service and filing of documents to initiate court proceedings in the superior courts and lower courts. Indeed, notice of legal proceedings is given to every person to ensure compliance with the audi alteram partem maxim (“hear the other side”). There are various rules and legislation that regulate these court proceedings such as inter alia, the Superior Courts Act, 2013, Uniform Rules of Court, Constitution Seventeenth Amendment Act, 2012 and the Magistrates’ Courts Act of 1944. The rules of court are binding on a court by virtue of their nature. The purpose of these rules is to facilitate inexpensive and efficient legislation. However, civil procedure does not only depend on statutory provisions and the rules of court. Common law also plays a role. Superior Courts are said to exercise inherent jurisdiction in that its jurisdiction is derived from common law. It is noteworthy that whilst our rules of court and statutes are largely based on the English law, Roman-Dutch law also has an impact on our procedural law. The question thus arises, how can our law of civil procedure transform to accommodate elements of Africanisation as we are part and parcel of the African continent/diaspora? In this regard, the article examines the origins of Western-based civil procedure, our formal court systems, the impact of the Constitution on traditional civil procedure, the use of dispute resolution mechanisms in Western legal systems and African culture, an overview of the Traditional Courts Bill of 2012 and the advent of the Traditional Courts Bill of 2017. The article also examines how the contentious Traditional Courts Bills of 2012 and 2017 will transform or complement the law of civil procedure and apply in practice once it is passed into law.

Southern African Region Leading the Way in Election Technology: 2009–2019 Review of Global Standards and Unanswered Questions

This article presents essential tools that can help to devise a standard set of requirements and attributes for any form of electoral technology adopted across the continent. A number of countries in the southern African region have turned to a variety of technological solutions in a bid to make elections more efficient and cost-effective and to strengthen stakeholder trust at each stage of the electoral cycle. Africa has become a testing ground for technological leapfrogging. Election management bodies and Southern African Development Community observer teams are in the spotlight, but this leaves more questions about electoral capacity – problems that sometimes extend to the top of the African Union, which means that the African Union should adopt an incremental technological approach when dealing with electoral observations, capacity-building and political problem-solving across the whole continent. However, in many cases, the technology does not necessarily improve trust in the process or deal with the all problems with elections it was intended to resolve. As a result, concerns about the sustainability of electoral technology remain unanswered. The information for this study was gathered from an online search of secondary academic literature on electoral system management, published reports, legal mandates and official websites of the election management bodies studied. The lessons of the past decade show that technology has great potential for strengthening electoral integrity, but its introduction and use must be grounded in well-designed policies, surrounded by adequate safeguards and supported by legislation that is adequate to deal with the issues that it raises. The article attempts to assess emerging trends and to speculate on how they may affect the electoral process over the next decade. There is a need to examine how recent technological advancements could contribute further to enhancing electoral integrity and participation and how they can be integrated into the process in a sustainable manner.