An examination of the barriers to gender-responsive public procurement in South Africa

by | Mar 31, 2024 | SLR, SLR V34 I3

An examination of the barriers to gender-responsive public procurement in South Africa

Author: S Williams

ISSN: 1996-2193
Affiliations:LLB (Lagos) LLM (L.S.E) PhD (Nottingham), Professor, Department of Public Law, University of Stellenbosch
Source: Stellenbosch Law Review, Volume 34 Issue 3, 2023, p. 361 – 386
https://doi.org/10.47348/SLR/2023/i3a1

Abstract

Women-owned businesses (“WOBs”) obtain less than 6% of public procurement contracts, despite accounting for close to 30% of registered businesses in South Africa. This contribution examines the reasons for the limited participation of WOBs in the public procurement system and finds that there are policy, legal, institutional and cultural barriers to the participation of WOBs in public procurement in South Africa. Policy barriers arise out of the misalignment between economic, gender and procurement policies and legal barriers arise from the previous limited and currently uncertain approach to preferential procurement legislation. However, the contribution finds that institutional, cultural and structural barriers pose even more of a risk to women’s participation in public procurement in South Africa. These institutional barriers include a reticence to prioritise WOBs by public agencies in the absence of an explicit mandate to do so, the reluctance to favour new market entrants to avoid contract failures and a culturally biased approach to WOBs by public agencies. Other barriers include the gendered impact of procurement corruption; the gendered impact of Covid-19, which terminated public contracts in sectors serviced by WOBs; and the complexity and opacity of the procurement process. The contribution finds that the historical lack of attention to women’s participation in procurement, and the lack of disaggregated data on preferential and gendered contracts, have made it difficult to understand the extent of women’s participation and the nature of required legal and policy interventions. This contribution assesses the barriers to the participation of WOBs in public procurement and makes recommendations aimed at addressing some of these barriers.

The leading causes behind medico-legal claims and the use of mediation as a possible solution

by | Mar 31, 2024 | SLR, SLR V34 I3

The leading causes behind medico-legal claims and the use of mediation as a possible solution

Authors: Larisse Prinsen and Errol Cedric Muller

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Senior Lecturer, Department of Public Law, University of the Free State; B Iuris LLB LLM PhD, Lecturer, Department of Public Law, University of the Free State
Source: Stellenbosch Law Review, Volume 34 Issue 3, 2023, p. 387 – 405
https://doi.org/10.47348/SLR/2023/i3a2

Abstract

Medico-legal claims in the South African health sector have noticeably increased since approximately 2007. This is significant as money spent from the public health budget on these claims is money which ought to have been spent on other healthcare priorities. As such, it becomes vital to understand why these claims have shown such drastic increases and what could be done to stem the rising tide.
This article addresses two main themes: first, it explains the various causes for increased claims related to the medical field and broader possible solutions to this problem; secondly, mediation is proffered as a viable means of negating the negative impact of these claims on the health sector and budget.
The conventional method of resolving medico-legal disputes is through adversarial court litigation. Litigation is expensive, time-consuming, complex and emotionally taxing, and the eventual outcome often fails to satisfy the needs of the litigants. Conventional civil dispute resolution exhibits little appreciation for, or consideration of, alternative and better-suited dispute resolution techniques and mechanisms. In this article we argue that mediation offers a viable alternative to resolve medico-legal issues. In essence, mediation is third-party (mediator) facilitated dispute resolution through negotiation. The process is less expensive, less time-consuming, uncomplicated, and party-oriented. In addition, it has the potential to enhance access to justice. However, to achieve this will require a change in legal culture.

Automatic review of magistrates’ courts judgments: A noble invention at the risk of impotence?

by | Mar 31, 2024 | SLR, SLR V34 I3

Automatic review of magistrates’ courts judgments: A noble invention at the risk of impotence?

Authors: Clement Marumoagae and Boyane Tshehla

ISSN: 1996-2193
Affiliations: LLB LLM PhD AIPSA Diploma in Insolvency Law, Professor, School of Law, University of the Witwatersrand; B Proc LLM, Senior Lecturer, School of Law, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 34 Issue 3, 2023, p. 406 – 428
https://doi.org/10.47348/SLR/2023/i3a3

Abstract

The Criminal Procedure Act 51 of 1977 provides for the automatic review of certain cases decided in the magistrates’ courts. This is a mechanism aimed at ensuring that justice is properly administered by subjecting decisions of some magistrates, mainly determined on the basis of their experience and the length of the sentence imposed, to review by judges of the High Court. This system, however, has been systematically hamstrung, primarily due to the inordinate delays that take place between the imposition of the sentence and the delivery of the review judgment. In some cases, by the time the review judgment is delivered, the accused has already completed the sentence.
The discussion in this article focuses on the automatic review process. It starts by contextualising the automatic review system; then deals with its practical application through the lens of a few selected cases; and — in conclusion — makes some recommendations aimed at strengthening the system. The recommendations are interrelated. The main one is that the period of a week for the record to be submitted for review is unrealistic — as is evident from the cases discussed — and should therefore be increased. Conscious that this may delay the process to the disadvantage of the accused, it is also recommended that those accused whose cases are subjected to the automatic review process should be granted bail as a default position. The last recommendation may seem cosmetic, but it is important. Communication between the magistrates’ courts and the High Court seems to be at the centre of the problem and, for this reason, the use of technology is recommended.

“Fit and proper” judges and free speech: A critical reflection

by | Mar 31, 2024 | SLR, SLR V34 I3

“Fit and proper” judges and free speech: A critical reflection

Author: Fareed Moosa

ISSN: 1996-2193
Affiliations: BProc (UWC) LLB (UWC) LLM (UCT) LLD (UWC), Associate Professor, Department of Mercantile and Labour Law, University of the Western Cape
Source: Stellenbosch Law Review, Volume 34 Issue 3, 2023, p. 429 – 450
https://doi.org/10.47348/SLR/2023/i3a4

Abstract

Against the backdrop of the silence by apartheid-era judges who refused to speak out against the inhumanity of apartheid, resulting in egregious human rights violations, this article explores what it means to be a “fit and proper” judge as envisaged by section 174(1) of the Constitution of the Republic of South Africa, 1996 read with the Judicial Service Commission Act 9 of 1994 and the Code of Judicial Conduct GN R 865 in GG 35802 of 18-10-2012 (“the Code”). The argument is that, in this context, the meaning of “fit and proper” has far greater depth and breadth than the same normative standard contemplated by the Legal Practice Act 28 of 2014 for lawyers as officers of the court. A “fit and proper” judge is a person with more than just absolute integrity, impeccable honesty, a high degree of professionalism, and unflinching incorruptibility. A judge is also a person who, at all times, scrupulously obeys the Constitution and its dictates, strictly respects the law and abides by the rule of law, always advances human rights and constitutional values, and faithfully discharges all duties embraced by the oath of judicial office and does so with courage.
This article argues that South Africa can only take its rightful place in the family of nations if its judges, through their extra-judicial words and deeds, help shape South African society, and others where needed. The Constitution and the oath of judicial office oblige judges to, inter alia, denounce apartheid in any of its current-day incarnations, and advocate for legal orders moulded by democratic values, human rights, freedom, equality, rule of law, and justice for all. A culture of judicial silence in the face of injustice and human rights violations, whether perpetrated on foreign or domestic soil, is an abdication of judicial responsibility and antithetical to the ethos underpinning the transformative notion of a “fit and proper” judge under the Constitution. This article reminds judges that while duties arising from the Constitution and their oath of office rank supreme over any in the Code, they are to be delicately balanced. Extra-curial speech must respect the separation of powers and not undermine the judiciary’s standing, integrity and independence.

The role of the recognition of the Customary Marriages Amendment Act 1 of 2021 and wills in determining the proprietary consequences of polygynous customary marriages [Discussion of Mshengu v Estate Late Mshengu (9223/2016P) 2021 ZAKZPHC 49 (6 August 2021)]

by | Mar 31, 2024 | SLR, SLR V34 I3

The role of the recognition of the Customary Marriages Amendment Act 1 of 2021 and wills in determining the proprietary consequences of polygynous customary marriages [Discussion of Mshengu v Estate Late Mshengu (9223/2016P) 2021 ZAKZPHC 49 (6 August 2021)]

Author: Tshepo Aubrey Manthwa

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Associate Professor, School of Law, University of South Africa
Source: Stellenbosch Law Review, Volume 34 Issue 3, 2023, p. 451 – 459
https://doi.org/10.47348/SLR/2023/i3a5

Abstract

The Recognition of Customary Marriages Amendment Act 1 of 2021 amends section 7(1) of the Recognition of Customary Marriages 120 of 1998 as a sequel to Gumede v President of the Republic of South Africa 2009 3 SA 152 (CC) and Ramuhovhi v President of the Republic of South Africa 2018 2 SA 1 (CC) in which this section was declared unconstitutional on the basis that it unfairly discriminated, on the basis of gender and race, against women married in terms of customary law before the commencement of the Act. According to the Constitutional Court, these women did not have the right to possess property in terms of customary law, which left them especially vulnerable in the absence of statutory protection if their marriages were dissolved for example.
The achievement of gender equality is an important transformative and social justice goal in South Africa. Over the years, the courts have reconstructed customary law to promote gender equality. Customary law traditionally did not discriminate against women and they were allowed to manage property. However, this changed after contact with colonialism where, through collaboration with African men, women were treated as minors. This was a distortion of the legal system. The problem is that all the focus, including that of the courts and the legislature, is on the distorted version of customary law, and the true version that did not discriminate against women is being ignored. Consequently, in reconstructing and creating gender equality, a new form of customary law is being created, namely constitutional customary law. The true form of customary law does not recognise private ownership of property, A person can only manage property, not own it, but through constitutional customary law, the court and legislature have imposed common law concepts such as joint and equal ownership of property. This has unfortunate consequences, such as the fact that a customary heir can alienate family property after divorce while disregarding any responsibility to the family.

Who believes black women? Applying the right to health framework to undo epistemic injustice

by | Mar 4, 2024 | SLR, SLR V34 I2

Who believes black women? Applying the right to health framework to undo epistemic injustice

Author: Tlaleng Mofokeng

ISSN: 1996-2193
Affiliations: United Nations Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 249 – 260
https://doi.org/10.47348/SLR/2023/i2a1

Abstract

Epistemic injustice has a significant impact on black women’s experiences of healthcare. The failure of medical professionals to consider the experience of black women impairs the realisation of their right to health. Moreover, it embeds the disadvantages that these women face, undermining the realisation of substantive equality. This lecture considers how the medical community’s failure to believe and listen to black women constitutes an example of epistemic injustice. First, it discusses the prevalence of so-called “sex testing” in sports and how it is often used to target black female athletes as an example of epistemic injustice. In particular, it focuses on the impact of sex testing on the career of Caster Semenya. Secondly, it addresses how the forced sterilisation of black women in South Africa is another example of epistemic injustice in healthcare, negatively impacting their rights. Finally, it considers the criminalisation of sex work in South Africa as a third example of epistemic injustice that has substantially affected the rights of mostly black women.