Legislation In South Africa Research Articles

Legislative landscape for traditional health practitioners in Southern African development community countries: a scoping review

Background and objectivesGlobally, contemporary legislation surrounding traditional health practitioners (THPs) is limited. This is also true for the member states of the Southern African Development Community (SADC). The main aim...

Analysis of archives infrastructure in South Africa

PurposeThe purpose of this study is to assess the extent to which the Mpumalanga Provincial Archives (MPA) complies with the Mpumalanga Archives Act, 2008 legislative/policy provisions of archives building, capacity building and electronic records management and to suggest recommendations for effective archives and records management (ARM) programme in South Africa.Design/methodology/approachThis paper adopts a quantitative approach supplemented by qualitative data using document review to collect data and content analysis.FindingsThe results show that MPA enacted Mpumalanga Archives Act, 2008. However, the challenge is the implementation of such legislation. The findings of this paper would contribute towards the literature in archival legislation in South Africa and other parts of the world.Research limitations/implicationsEven though the paper was based in South Africa, it was limited to the MPA of South Africa.Practical implicationsThe findings are expected to be instrumental in the implementation of Mpumalanga Archives Act, 2008.Social implicationsThe findings and recommendations will help in guiding MPA on the implementation of an effective provincial archive and records to facilitate the effective management of records to determine those of archival value, to preserve them for posterity and to make them accessible to the public.Originality/valueThis is an original study using a document review to review the Mpumalanga Archives Act, 1998. The effective archives infrastructure will contribute to compliance with legislative components such as archives building, cooperation, ERMS, appraisal and disposal of records, archives advisory body and access to information.

Translocal Activism and the Implementation of Equal Remuneration for Men and Women: The Case of the South African Textile Industry, 1980–1987

AbstractThe struggle by women workers has largely been overlooked in the historiography of trade unions in South Africa during apartheid. This article analyses the strategies of the National Union of Textile Workers (NUTW) to end wage discrimination against women as part of the struggle against poverty wages in the South African textile industry during the last years of apartheid, c.1980 to 1987. The first South African equal pay legislation came into force in 1981, covering the minimum wages of just a small number of the workforce; it was not until 1984 that legislation set minimum wages for all workers. Before the legal reform, new domestic and foreign political opportunities helped the NUTW to create new mobilization structures and offered possibilities to connect levels of scale and make local action visible at home and abroad. Global framing of wage equality combined with a translocal repertoire was used in the cases of multinational companies to make relevant connections between levels of scale (international, transnational, national, and local) to add to the visibility of the violations. After the reform of labour legislation in South Africa, the union made reference to domestic legislation, but translocal activism remained important in bringing foreign companies to the local negotiating table. Drawing on these cases, the NUTW developed a national strategy to make wage setting more transparent across the entire industry, adding to the visibility of all forms of wage discrimination.

Governing territory in conditions of legal pluralism: Living law and free, prior, and informed consent (FPIC) in Xolobeni, South Africa

This paper illustrates how communities and their customary land rights are marginalized in current mining governance reform legislation in South Africa. The research focuses on the relationship between property, territory, and authority to unpack the dynamics of struggle and the specifics of collective rights-claims in the context of resource extraction. It focuses on the struggle of the Amadiba people (and the Xolobeni community in particular) against a proposal for open cast mining on their land. The findings reveal that reading the advocacy of local communities is one way to interrogate the complex field of power characteristic of mining governance reform and innovation. The research underscores that mining governance reform demands a critical understanding of territorial governance and control and an engagement with the reality of legal and territorial pluralism whereby multiple actors vie for legitimacy and authority. The struggle in Xolobeni reveals that territorial jurisdictions deriving from colonialism must not inform mining governance legislation in South Africa. Rather, community-based and locally-asserted practices of governance and self-determined development, expressed through the right to consent, must inform mining legislation.

Conundrum of religious mafia and legislation in South Africa: When does religion become a national threat? Reference to the Seven Angels Ministry

In this theoretical article, I analyse the hearing of the Seven Angels Ministry before the Commission for Religious and Linguistic Rights, and subsequent events that led to the killing of police and army officers at the Ngcobo Police Station. Informed by critical emancipatory research theory, I unpack the emerging nexus of the state, gender, legislation, religious freedom and human rights in the context of religious mafia. I answer two questions in relation to the Seven Angels Ministry and the Ngcobo killings: ‘What are the tenets of a mafiarised religion?’ and ‘What can be done to mitigate the challenge?’ I argue that a philosophical understanding of the constitution, education, gender and politics as practiced by the Seven Angels Ministry presents a trajectory of religion in contemporary society that must be problematised, unearthed and challenged to produce a world order that is responsive to societal needs and devoid of oppression and coloniality. I also argue that while religious freedom is a human right, it is important that legislation protects citizens from religious mafias, particularly when religious discourses negate schooling, promote gender inequality and emphasise constitutional delinquency. Intradisciplinary and/or interdisciplinary implications: The article is interdisciplinary in the sense that it addresses the issues of education, constitutionalism, gender, child abuse and a need for a theology that challenges religious mafia exhibited by some religious movements. It calls for a change in legislation, and a different approach to theology as well as in curricula to address lived realities.

Valuation of Intellectual Property: Prospects For African Countries

The idea of Intellectual Property (IP) is sophistry, the value of which till date, eludes us. How do we measure or value intangible assets? The discussion on the how of Intellectual Property Valuation(IPV) makes no sense if we do not understand the concept of valuation. Unfortunately, IP laws in South Africa did not define IPV. The only legislation in South Africa that defines valuation, did so in the context of tangible property. This article shall begin with answering the question – Why value IP? We will explore the methods for valuing IP and question the universality of the methods while exploring the regulatory bodies that checkmate those methods. We will search through the courts' altitude on IPV and expose the problems of IPV. And finally, we will reveal the South Africa position as well as make recommendations towards the growth of South Africa and other African Countries.

Private Archives in South Africa: Their Protection and Access with Particular Reference to the now Defunct Lutheran Theological Institute Library and Archives

This treatise is a case study that provides an insight into the status of private archives in South Africa with regards to their protection and access provisions. The paper is based on the author’s experiences as a manuscript librarian at the now defunct Lutheran Theological Institute (LTI) Library and Archives and research on faith-based archives which this institution was endowed with. The thesis of this paper is that records and archives legislation in South Africa as far as it applies to private archives is lethargic and not comprehensive enough to provide an enabling environment for their stewardship which is leading to loss of documentary heritage. The demise of this institution and the subsequent loss of the collection is testimony. In consequence, faith based collections (religious archives) need to be legislated like their counterparts public archives for protection and access in terms of the law.

Towards a rapid assessment protocol for identifying pit lakes worthy of restoration

Before the introduction of reclamation legislation in South Africa, final cut lakes in mining areas were left without any restoration while the final excavation was not back filled. Characteristics of these lacustrine water bodies vary considerably, but they are often linear in shape, large (1–30 ha), deep (2–30 m) and have poorly developed littoral zones. With water tables often near the surface; a variety of vascular hydrophytes can colonize these bodies, thus establishing emerging wetland type ecosystems. These, man-made aquatic structures that are (unintentionally) created potentially offers some realistic and inexpensive mitigation options for some of the negative impacts associated with mining, i.e. these water bodies can become useful by yielding potentially valuable services. However, no method currently exists to compare and rank these water bodies according ecological integrity and the expected monetary value to be derived from them in order to select sites for restoration. To answer this need, we applied an index to determine the ability of these water bodies to provide useful services in their current state. The index was then used to derive estimates of the monetary value of potential services in order to allow comparison with the cost of restoring the water body in question or to compare with other pit lakes. We present a South African case study to illustrate the method. As far as could be established, this is the first attempt towards creating a rapid assessment tool as standardised way of comparing pit lakes that allows for the ranking and identification of those pit lakes worthy of restoration.

Associations between dietary salt, potassium and blood pressure in South African adults: WHO SAGE Wave 2 Salt & Tobacco

Background & aimsIn June 2016, South Africa implemented legislation mandating maximum sodium levels in a range of processed foods with a goal of reducing population salt intake and disease burden from hypertension. Our aim was to explore the relationship between salt and blood pressure (BP) in a subsample of the World Health Organization Study on global AGEing and adult health (SAGE) Wave 2 before implementation of legislation in South Africa. Methods & resultsBlood pressure (BP) was measured in triplicate (n = 2722; median age 56 years; 33% male) and 24-h urine collected in a nested subsample (n = 526) for sodium, potassium and creatinine analysis. Hypertension prevalence was 55% in older adults (50-plus years) and 28% in younger adults (18–49 years). Median salt intake (6.8 g/day) was higher in younger than older adults (8.6 g vs 6.1 g/day; p < 0.001), and in urban compared to rural populations (7.0 g vs 6.0 g/day; p = 0.033). Overall, 69% of participants had salt intakes above 5 g/day. Potassium intakes were generally low (median 35 mmol/day) with significantly lower intakes in rural areas and older adults. Overall, 91% of adults failed to meet the daily potassium recommendation of 90 mmol/d. Salt intakes above 5 g/day, and to a greater extent, a dietary sodium-to-potassium (Na:K) ratio above 2 mmol/mmol, were associated with significantly steeper regression slopes of BP with age. ConclusionThese preliminary results indicate that high dietary Na:K ratio may lead to a greater increase in BP and hypertension risk with age. Interventions to increase potassium intakes alongside sodium reduction initiatives may be warranted.

Non-Standard Workers: The South African Context, International Law and Regulation by The European Union

The current labour market has many forms of employment relations that differ from full-time employment. "Atypical," "non-standard," or even "marginal" are terms used to describe these new workers and include, amongst others, parttime work, contract work, self-employment, temporary, fixed-term, seasonal, casual, piece-rate work, employees supplied by employment agencies, home workers and those employed in the informal economy. These workers are often paid for results rather than time. Their vulnerability is linked in many instances to the absence of an employment relationship or the existence of a flimsy one. Most of these workers are unskilled or work in sectors with limited trade union organisation and limited coverage by collective bargaining, leaving them vulnerable to exploitation. They should, in theory, have the protection of current South African labour legislation, but in practice the unusual circumstances of their employment render the enforcement of their rights problematic. The majority of non-standard workers in South Africa are those previously disadvantaged by the apartheid regime, compromising women and unskilled black workers. The exclusion of these workers from labour legislation can be seen as discrimination, which is prohibited by almost all labour legislation in South Africa. This contribution illustrates how the concept of indirect discrimination can be an important tool used to provide labour protection to these workers. The purpose of this article is to explore the scope of the extension of labour rights to non-standard workers in the context of South African labour laws and the international framework.

An Embarrassment of Riches or a Profusion of Confusion An Evaluation of the Continued Existence of the Civil Union Act of 2006 in the Light of Prospective Domestic Partnerships Legislation in South Africa

As it stands, South African family law currently holds that the Marriage Act 25 of 1961 applies exclusively to the solemnisation of heterosexual civil marriages while same-sex couples have no choice but to formalise their relationships in terms of the Civil Union Act 17 of 2006. In addition, the legal position is complicated by the fact that the latter Act not only allows both heterosexual and homosexual couples to conclude a civil union, but also provides that a civil union may take the form of either a marriage or a civil partnership, both of which enjoy the same legal recognition as, and give rise to the same legal consequences, as a civil marriage under the Marriage Act. In January 2008, a draft Domestic Partnerships Bill saw the light of day, the potential enactment of which casts significant doubt as to whether the prevailing framework should be retained. With this potential development in mind, this paper considers the desirability of maintaining the "separate but equal" status quo by: (a) comparing the South African Law Reform Commission's pre-Civil Union Act proposals with the approach eventually adopted by the legislature; (b) comparing and contrasting the post-Civil Union Act position in South Africa with that of an established and well-ordered jurisdiction such as the Netherlands and, in the light hereof, considering the cases for and against repealing the Civil Union Act; and (c) by considering the desirability and practicality of the civil partnership's potential co-existence with the Domestic Partnerships Bill (as modified in accordance with a recent study). A proposal is made that could provide a less complex and better streamlined family law dispensation in South Africa.

The Status and Role of Legislation In South Africa as a Constitutional Democracy: Some Exploratory Observatio

This note explores the proposition that in the face of probably one of the most unequivocal forms of constitutional review in a modern day state, legislation in South Africa has since 27 April 1994 grown in status (and stature) nonetheless, and has assumed an unprecedented role in our constitutional democracy. First, it is shown how constitutional review with the necessary judicial self-restraint has instilled respect for legislation in the context of and with reference to the separation of powers. Second, it is shown that and how statutes have become (subsidiary) allies to the Constitution and have been standing the realisation of constitutional values in good stead. Finally, it is argued that the constitutional requirement of popular participation in legislative deliberation has also added to the esteem for legislation in our constitutional democracy.

Optimising invasive fish management in the context of invasive species legislation in South Africa

Background: South Africa hosts a large number of non-native freshwater fishes that were introduced for various industries. Many of these species are now listed under the National Environmental Management: Biodiversity Act (NEM:BA) Alien and Invasive Species (AIS) lists and regulations, though the practical options available to conservation agencies to effectively manage these fishes vary greatly among species and regions. Objectives methods: We assessed the history and status of national legislation pertaining to invasive freshwater fishes, and the practical implications of the legislation for managing different species with contrasting distributions, impacts and utilisation value. Results: The smallmouth bass, despite being a potential conflict-generating species, is fairly straightforward to manage based on current legislation. Two species of trout, which remain absent from the NEM:BA AIS lists because of ongoing consultation with stakeholders, continue to be managed in regions like the Western Cape province using existing provincial legislation. To maximise the limited capacity for management within conservation agencies, we proposed a decision-support tool that prioritises invasive fish populations that represent high environmental risk and low potential for conflict with stakeholders. Using three case studies, we demonstrated how the tool can be used to set management goals of ‘eradicate’, ‘manage against impacts and further spread’ and ‘continue to monitor population’ as the most pragmatic solutions given the state of an invasion, its socio-economic impact and the capacity of the responsible agency to act. Conclusion: By choosing a pragmatic management strategy, conservation agencies can maximise the effective deployment of limited resources, while minimising avoidable conflicts with stakeholders.

An Evaluation Of Income Tax Incentives Available To The South African Oil And Gas Industry

The oil and gas sector is advantageous to South Africa. However, the country’s oil and gas reserves are minimal in relation to many other countries, reducing attractiveness to prospective investors. In the aim of promoting investment in the oil and gas sector of South Africa, attraction should be improved by other means, such as an alluring regulatory environment, including the taxation regime.The research conducted in this study aimed to determine whether the income tax legislation in South Africa provides a meaningful incentive for oil and gas companies to compete for international investment in this industry without unnecessarily compromising the State’s share of wealth from the industry. A literature review established the use and characteristics of meaningful tax incentives. The incentives contained in South Africa’s oil and gas tax environment were evaluated to determine whether the incentives can attract investment to the sector.Findings indicate that the incentive contained in the Tenth Schedule generally meets identified characteristics of meaningful tax incentives, enabling South Africa to lure investment to the sector. The interaction between this incentive and the remainder of the legislation, however, reduces the stability afforded to investors and may create uncertainty in the application of the incentive. Also, an apparent lack of monitoring of the regime may result in the impact and necessity of the incentive not being determinable, especially if the investor environment were to be affected by new discoveries.

Provisions for managing and preserving records created in networked environments in the archival legislative frameworks of selected member states of the Southern African Development Community

In most states in the Southern African Development Community (SADC), the national archives acts were enacted shortly after independence and modelled closely on British archival legislation. These acts were mostly written with paper records in mind, while being silent on records that appear in other media such as microfilm, audiovisual and electronic. This study provides a qualitative content analysis of archival legislation to assess the extent to which provision is made for the management and preservation of records created in networked environments in selected countries (Botswana, Lesotho, Malawi, Namibia, South Africa, Swaziland, Tanzania Zambia, and Zimbabwe) in the SADC region. The key finding suggests that while the archival legislation in South Africa makes provision for the management of electronic records, the pieces of legislation for the other countries are silent on this issue. Furthermore, all the pieces of legislation are silent on whether electronic records can be admissible as evidence in a court of law. The study recommends that the SADC should consider adding a legal instrument in the form of a protocol treaty on archival legislation and designing a model law or statute on electronic records management and preservation to be customised by member states.

The impact of gender diversity in the boardroom on firm performance: A South African perspective

The study employs panel methodology and Ordinary Least Squares (OLS) multiple regression to examine the impact of board gender diversity on firm performance for a sample of 137 Johannesburg Stock Exchange (JSE) listed firms during the period 2002 and 2011. The results show that board gender diversity among South African firms have been improving substantially since 2002 when King II came into force. In 2002, the average South African board had only 4 per cent of women and by 2011, this had increased to 13 per cent. Notably, the findings also show that large South African firms have a greater representivity of women on their boards than small firms. By inference this could mean that gender diversity has a positive influence on firm value as findings further show that firm value in large firms is higher than that in small firms. This study contribute to the debate of whether board gender diversity influences firm value and whether the South African government should consider adopting quota legislation such as in Spain, Norway, The Netherlands and France. The findings suggest that there is evidence of a business case to advocate the implementation of quota legislation in South Africa. Empirical findings proceed to confirm that theories of corporate governance such as agency, resource-dependence, signalling and stakeholding surely provide some support to understanding the relationship between board gender diversity and firm performance.

Human tissue legislation in South Africa: Focus on stem cell research and therapy

The South African (SA) legislative framework follows a hierarchical structure aligned with the relevant level of government (national, provincial or local) responsible for applying and monitoring the legislation, with the overarching and progressive Constitution as the supreme law. Delegated legislation (also known as secondary or subordinate legislation, e.g. regulations) ‘adds flesh’ to Acts of Parliament, or other forms of original legislation. The control and use of human tissue in South Africa is primarily governed by the National Health Act and relevant regulations, although other national acts, in differing degrees, are also relevant to this complex field. These include, among others, the Medicines and Related Substances Act, the Consumer Protection Act, the Children’s Act and the Inquest Act. Regulations generally only require ministerial and not parliamentary approval and are therefore (theoretically) easier to amend. In principle, the drafting of Acts should be preceded by policy documents, which contain broad foundational guidelines or a statement of intent in the area in question. Another useful source in the interpretation of legislation, albeit not officially recognised as legislation, is guidelines (sometimes referred to as standards), that may provide greater granularity than the regulations. Although neither policy documents nor guidelines are directly legally binding, a lack of compliance with the latter may have legal significance. In this article, the components of the hierarchical structure relevant to the legal regulation of human tissue in SA will be examined, with a specific focus on stem cell research and therapy. A critical analysis of the accuracy, relevance, redundancy and completeness (or lack thereof) of these components will be provided. Furthermore, recommendations outlining the procedures that should be undertaken to remedy the inadequacies of the current legislative framework will be suggested. Given the well-defined structure of this framework and the relative youth of human tissue legislation in SA, the legislator has an opportunity to mirror the values and principles embodied in the Constitution by addressing these inconsistencies, and in the process develop a globally-applicable and appropriate legislative model in the fields of stem cell research and therapy

Mitochondrial transfer: Ethical, legal and social implications in assisted reproduction

Diseases resulting from mutations in mitochondrial DNA (mtDNA) are inherited by all offspring through the maternal lineage. Multiple organs are severely affected, no preventative treatments are available and most patients experience a poor quality of life or early death. With developments in mitochondrial transfer techniques, hope for preventing transmission of mutated mtDNA onto offspring is emerging. Many ethical issues have been raised regarding such treatments, which involve transfer of nuclear material into donated oocytes with healthy mitochondria, or the introduction of healthy donor mitochondria into affected oocytes. Blastomere, ooplasmic, pronuclear and spindle transfer have been explored. Ethical concerns relate to (a) the alteration of germ line genetics and (b) the dilemma of children inheriting DNA material from three instead of two parents. In contrast to gene therapy, where only the DNA of the treated individual is altered, these techniques involve the introduction of foreign mtDNA into the germ line that will be inherited by all children in downstream generations. Mitochondrial transfer has also been closely associated with reproductive cloning, which is regulated differently worldwide. Children born from these techniques might experience an identity crisis. Although three gametes are needed to produce a healthy embryo in this scenario, the child will inherit all nuclear DNA from the intending parents, while only inheriting mtDNA from the donor. Social and scientific values must be considered when introducing new healthcare technology. Many believe that some assisted reproductive technology techniques go beyond the limits of acceptable medical intervention. But who ultimately decides what is acceptable? We address the ethical and social issues surrounding this emerging new technology, legal developments regarding its clinical introduction in the UK and the USA, the future impact on technique and patient management, and relevant legislation in South Africa.

EXPLORING ADOLESCENTS’ PARTICIPATION IN DECISION MAKING IN RELATED FOSTER CARE PLACEMENTS IN SOUTH AFRICA

Since the United Nations Convention on the Rights of the Child was adopted in 1989, children have a right to express their views and participate in matters concerning them. This aspect of participation is also encompassed in legislation in South Africa. The country has adopted a developmental social work approach after becoming a democratic nation in 1994 to guide social work service delivery on all levels. The purpose of this paper is to explore the participatory decision making experiences that adolescents have relating to their foster care placements. Against this background, the theoretical premise of the paper is based on the principles of participatory decision making. A qualitative research study was conducted in which thirty-five adolescents in related foster care placements across South Africa were interviewed. The responses of adolescents indicate that these young people in foster placements feel they are not sufficiently included in the decision making aspects related to welfare service delivery to them. This presents a challenge to developmental social work, which aims to be democratic, inclusive, and participatory. The paper concludes with discussing the implications of these findings for foster care in South Africa and recommends that adolescents should be taken seriously in matters concerning them.

The South African labour market and the incubation of small businesses in South Africa

Since April 1994, the South African Government and the trade unions have been working together as a means of realising sustained economic growth and development, job creation and the alleviation of poverty among the unemployed youth. The uneasy relationship between the South African Government and the trade unions has been characterised by tensions and differences in strategy. The implementation of the South African National Development Plan depends on the presence of a smooth working relationship among all relevant stakeholders. The global nature of the South African economy has prompted economists in South Africa to call for the relaxation of labour laws as a means of attracting foreign direct investment. The objective of the study was to assess the existing conditions of labour in South Africa as well as the impact of labour-related conditions and legislation in South Africa on the South African economy.The rate at which the economy has grown since April 1994 has been significantly smaller than the rate at which jobs had to be created in order to absorb the unemployed into the economy. This paper investigates factors that affect the duration of employment and job mobility in the South African labour market by using the South African Labour Force Survey data set of 2007. The study shows that union membership and ownership of pension funds are negatively associated with job mobility. The study has found that workers (cetaris paribus) who belong to pension funds are, on average, twice as likely to stay in their jobs. The results for union members are similar. The study shows that job mobility is significantly influenced by age, race, level of skills training, level of household income and province of residence. The results show that the Province of Mpumalanga was most significantly affected by job mobility. The provinces that were least affected by job mobility were the Western Cape, Gauteng and Limpopo in decreasing order. The study provides an exploratory analysis of the labour market in South Africa, and proposes lessons for remedial actions to policy makers and planners. Feasible recommendations are made to South African policymakers and planners based on the findings of the study.