The Nationalisation of the South African Reserve Bank: a Legal-Historical Perspective of Three Central Banks

by | Aug 20, 2023 | FUND, FUND V29I1

The Nationalisation of the South African Reserve Bank: a Legal-Historical Perspective of Three Central Banks

Author Gerda van Niekerk

ISSN: 2411-7870
Affiliations: BComm LLB LLD (UP). Senior lecturer, Department of Mercantile Law, University of Limpopo
Source: Fundamina, Volume 29 Issue 1, p. 80-109
https://doi.org/10.47348/FUND/v29/i1a4

Abstract

The debate continues about whether the South African Reserve Bank should be nationalised or not. This contribution looks at the evolution of central banks, as well as at the origin and historical background of the central banks in three countries, namely the South African Reserve Bank, the Reserve Bank of Australia and De Nederlandsche Bank. The shares in the South African Reserve Bank belong to private shareholders; the Reserve Bank of Australia has been the property of the government of Australia since its inception; and De Nederlandsche Bank was nationalised in 1948. The potential nationalisation of the South African Reserve Bank will come with a hefty price tag, as the shareholders will have to be compensated for the value of their shares. Section 224 of the Constitution of the Republic of South Africa, 1996 determines that the South African Reserve Bank should “protect the value of the currency in the interest of balanced and sustainable economic growth”. The constitutional power of the Bank to be responsible for monetary policy will not change if it is nationalised. This contribution recommends that the South African Reserve Bank not be nationalised due to the big cost thereof to South Africa and because not much will be achieved by such a step.

Freedom of the Press in Uganda in the Light of the Drafting History of Articles 29(1)(A), 43 and 41 of the Constitution

by | Apr 19, 2023 | FUND, FUND V28I2

Freedom of the Press in Uganda in the Light of the Drafting History of Articles 29(1)(A), 43 and 41 of the Constitution

Author Jamil Ddamulira Mujuzi

ISSN: 2411-7870
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape
Source: Fundamina, Volume 28 Issue 2, p. 1-42
https://doi.org/10.47348/FUND/v28/i2a1

Abstract

Article 29(1)(a) of the Constitution of Uganda (1995) provides for the right to freedom of speech and expression, which includes freedom of the press and other media. Article 43 provides for the circumstances in which the rights in the Constitution may be limited, including the right to freedom of the press. Article 41 provides for the right of every citizen to access information in possession of the state. In 1989, Uganda embarked on the process of enacting a new Constitution. In this contribution, I demonstrate the drafting history of articles 29(1)(a), 43 and 41 of the Constitution by referring to the report of the Constitutional Commission and the Proceedings of the Constituent Assembly. It is submitted that some of the phrasing of article 29(1)(a) as agreed to by the Constituent Assembly delegates to extend the protection of the right to the freedom of the press was omitted from the final Constitution without explanation. Also, some of the phrasing of article 43 specifically excluded by the Constituent Assembly delegates was included in the final Constitution. This contribution refers to the case law on the right to the freedom of the press and argues that, when dealing with that right, the courts have not clearly explained the two parts under article 43. Since access to information is vital for freedom of the press, this contribution also demonstrates the drafting history of article 41 and refers to cases in which courts have interpreted it.

In-Between Black and White: Defining Racial Boundaries in Colonial Natal at the Turn of the Twentieth Century – Part One

by | Apr 19, 2023 | FUND, FUND V28I2

In-Between Black and White: Defining Racial Boundaries in Colonial Natal at the Turn of the Twentieth Century – Part One

Authors Stephen Allister Peté and Paul Swanepoel

ISSN: 2411-7870
Affiliations: BA LLB (University of Natal) LLM (University of Cape Town) MPhil (University of Cambridge) PhD (University of KwaZulu-Natal); MA (Hons) (University of St Andrews) LLB (University of Natal) MSc PhD (University of Edinburgh). Senior Lecturer, School of Law, University of KwaZulu-Natal
Source: Fundamina, Volume 28 Issue 2, p. 43-72
https://doi.org/10.47348/FUND/v28/i2a2

Abstract

Mahmood Mamdani has argued that a system of “define and rule” lay at the heart of a revamped system of British colonial rule – indirect as opposed to direct rule – which developed from the middle of the nineteenth century onwards. In analysing parliamentary discussions and case law concerning definitions of “race” dating from the turn of the twentieth century in the colony of Natal, as well as examining concerns amongst the colonists at that time about the matter of racially mixed marriages, this contribution supports Mamdani’s general thesis and provides examples of the practical and ideological difficulties that arose in the process of attempting to define people according to “race” and “tribe”. It is the contention of this contribution that Mamdani is correct in his assessment that “define and rule” lay at the heart of the British colonial project, particularly in Africa. This contribution asserts, however, that the process of definition was messy, ambiguous, contradictory and never fully resolved in practice. Certain individuals and groups tended to fall between broad definitions of “race” and “tribe”, both of which illustrated the ideological fault lines inherent in a system based upon racial categorisation, giving rise to practical problems of law and governance. The contribution looks at a number of different themes that all relate to the above general issue. First, it discusses a number of judgments of the Supreme Court of Natal during that period that concerned various individuals and groups who did not neatly fit into any of the formal definitions of race in use at the time. Secondly, it examines a fairly extensive debate that took place in the Legislative Assembly of the colony of Natal in 1905 regarding the Native Definition Bill. Thirdly, it examines the related theme of mixed marriages, of which a number were reported in the colony’s newspapers around that time. Even though there may have been relatively few individuals who fell “in-between” the generally accepted racial and tribal divisions, the fact that there was uncertainty about where such persons fitted within the system was profoundly unsettling to the colonial authorities, since it suggested that the entire structure of colonial society was not based on a secure ideological footing.

The Proliferation of Criminal Gang Activities on the Cape Flats and the Subsequent Legislative and Policy Responses

by | Apr 19, 2023 | FUND, FUND V28I2

The Proliferation of Criminal Gang Activities on the Cape Flats and the Subsequent Legislative and Policy Responses

Author DC van der Linde

ISSN: 2411-7870
Affiliations: Senior lecturer, Faculty of Law, Stellenbosch University
Source: Fundamina, Volume 28 Issue 2, p. 73-116
https://doi.org/10.47348/FUND/v28/i2a3

Abstract

The proliferation of criminal gang activity is inextricably linked to the lingering legacy of the apartheid regime. Decades after apartheid, the communities of the Cape Flats in the Western Cape face a continuous onslaught of violence, predominantly brought about by rival gangs competing for drug territories. The purpose of this contribution is to consider the government’s policy and legislative responses to gangsterism through a historical and constitutional paradigm. The contribution, first, provides a brief historical overview of the causative (especially legislative and socio-economic) factors that led to the proliferation of criminal gangs on the Cape Flats. Secondly, it investigates the violent reality of criminal gang activity in a postdemocratic South Africa. This part also focuses on the legislative response to organised crime, in particular chapter 4 of the Prevention of Organised Crime Act 121 of 1998 (which deals with criminal gang activity), as well as on the various interventions and policies by the national and Western Cape Government to address the challenges related to gangsterism.

Tribute to Reinhard Zimmermann on the Occasion of his Seventieth Birthday

by | Apr 19, 2023 | FUND, FUND V28I2

Tribute to Reinhard Zimmermann on the Occasion of his Seventieth Birthday

Authors Shannon Hoctor and Liezl Wildenboer

ISSN: 2411-7870
Affiliations: Stellenbosch University, President of the Southern African Society of Legal Historians; University of South Africa, Vice-President of the Southern African Society of Legal Historians
Source: Fundamina, Volume 28 Issue 2, p. 117-121
https://doi.org/10.47348/FUND/v28/i2a4

Abstract

None

A South African Historico-Legal Perspective on Plagues and Pandemics

by | Nov 20, 2022 | FUND, FUND V28I1

A South African Historico-Legal Perspective on Plagues and Pandemics

Author Marita Carnelley

ISSN: 2411-7870
Affiliations: BA LLB (Stell) LLM (UNISA) PhD (Amsterdam). Professor, Faculty of Law, North-West University
Source: Fundamina, Volume 28 Issue 1, p. 1-65
https://doi.org/10.47348/FUND/v28/i1a1

Abstract

Global health experts have warned for decades of potential global influenza outbreaks. Although some strides have been made to mitigate the risks and consequences of a pandemic, concerns have been raised about the level of preparedness – both nationally and internationally. This contribution considers a number of plagues and pandemics that directly or indirectly played a role in the development of the South-African legal system, specifically the Justinian Plague, the Black Death, the Great Plague, the Third Bubonic Plague, the Spanish Flu and the Influenza Outbreaks of the past century. Each pandemic created legal and political challenges at the time that were dealt with in the context of the existing conceptions of social justice; this inevitably shaped the development of public health and disaster management jurisprudence and, in some instances, also contributed to the change in the underlying world order. This contribution aims to set out the legal development associated with pandemics that influenced the South African common-law legal system from Roman times until the end of 2019, just prior to the Covid-19 outbreak. There are two main parts to this contribution: The first deals with local or national activities at the time of the pandemic, while the second deals with later international law developments to address possible negative global consequences of such pandemics. The aim is thus, on the one hand, to detect themes from local or national responses to the social, cultural and economic costs of a pandemic, even though it is understood that the impact and consequences of plagues and pandemics are not identical. On the other hand, international law developments are discussed as these too had an impact on the South African legal framework and commitments. Although various aspects related to addressing the consequences of pandemics have improved – such as global surveillance, prevention and eventual control to decrease the incidence and severity of outbreaks – a historical assessment of these experiences is useful for evaluating the progress made towards preparedness at national and international levels. The contribution concludes with a short description of the South African legal framework in 2019 as it pertained to a potential pandemic outbreak.