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They were there to motivate me even through the most difficult times. Daniel Pallangyuo was parti... more They were there to motivate me even through the most difficult times. Daniel Pallangyuo was particularly useful in listening to my lectures on various aspects of transformative constitutionalism. I also want to acknowledge the contribution of my late brother, Evaristus Fu-uh Fuo. Apart from making me study law instead of history at the undergraduate level, he taught me at the age of 16 to wake up every school day at 4:00 am to study. The passion for studying that he nurtured in me has become a culture. His preference for law and not history was a correct choice. A choice I will never regret. Although he has travelled to the world beyond, his marks are indelible. I remain grateful for his positive influence. vi
South Africa's transition to constitutional democracy marked the end of a system of governmen... more South Africa's transition to constitutional democracy marked the end of a system of government that perpetuated injustice on the basis of race. The Constitution of the Republic of South Africa, 1996 (the Constitution), is committed to correcting these past injustices and aims to establish a society based on social justice. The realisation of the socio-economic rights entrenched in the Constitution (by all organs of state) is one of the ways in which to contribute towards the attainment of social justice. As one of the three spheres of government, the Constitution obliges local government (municipalities) to play a role in contributing towards realising constitutional objectives.The book questions the extent to which the legal and policy framework on local government in South Africa enable municipalities to contribute towards the pursuit of social justice. The book explores the relevance and potential of local government indigent policies and Integrated Development Plans (IDPs) -...
The Constitution of the Republic of South Africa, 1996 is committed to addressing the injustices ... more The Constitution of the Republic of South Africa, 1996 is committed to addressing the injustices of the past and to establishing a society based on social justice. This constitutional commitment is now firmly rooted both in the vision of transformative constitutionalism and the constitutional obligation on government to promote sustainable development. Scholars and jurists agree that social justice is primarily concerned with the eradication of poverty and extreme forms of inequalities in order to ensure that impoverished people have the basic needs required to function as true equals in socio-political life. The constitutional commitment to pursue social justice translates into a mandate which must be realised by the government of South Africa. As a co-responsible sphere of government, scholars and other experts share the view that local government is equally obliged to contribute towards the pursuit of social justice. The purpose of this article is to explore and critically invest...
This article aims to contribute to the growing body of urban climate-governance research from a c... more This article aims to contribute to the growing body of urban climate-governance research from a comparative legal perspective. It analyses the climate-related mitigation and adaptation efforts in the building sector of three cities: Cape Town (South Africa), Hamburg (Germany), and São Paulo (Brazil). We examine national, state, and local laws and policies with a focus on building-related energy, water, and green infrastructure. The comparative analysis reveals similarities and differences in multilevel building-related laws and policies that partly enhance and partly limit cities’ climate-mitigation and adaptation efforts. The study also carves out synergies, conflicts, and key challenges in building-related climate mitigation and adaptation at the city level and suggests how identified shortcomings could be overcome.
It is axiomatic that Grootboom (Government of the Republic of South Africa v Grootboom 2001 (1) S... more It is axiomatic that Grootboom (Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) hereinafter “Grootboom”) remains the hallmark of the Constitutional Court’s success in terms of its transformative socio-economic rights jurisprudence. In this regard, De Vos has argued that lawyers and legal academics who wish to pursue the transformative possibilities of the Bill of Rights may find much to assist them in the Grootboom case. One of the reasons for De Vos’s recommendation is that the Court acknowledged the transformative nature of the Constitution in this Case and strongly asserted the interrelated, interdependent and mutually reinforcing nature of the rights in the Bill of Rights in achieving the transformative objectives of the Constitution. The purpose of this article is to reflect on the court’s transformative jurisprudence in Grootboom and to argue that, although the court strongly asserted the interrelated and interdependent nature of the variety of right...
The dawn of constitutional democracy in South Africa triggered a new wave of immigration into the... more The dawn of constitutional democracy in South Africa triggered a new wave of immigration into the country. Foreign migrants post-1994 now make up about seven per cent of the country's population. The majority of the new intake are Africans pursuing economic opportunities, or refugees seeking asylum. The convergence of South African citizens and foreigners, especially in the country's major cities, generates competition over space and limited social welfare services which at times degenerates into conflicts with dire consequences. Some South African Ministers and local government leaders have resorted to a nativistic discourse to address competition over limited welfare services and to shield themselves for the failures of the State to achieve the large-scale egalitarian transformation envisaged by the Constitution of the Republic of South Africa, 1996. This article uses local government indigent policies to show how several South African municipalities use citizenship as a m...
This article explores the gaps left by the Constitutional Court's jurisprudence in relation t... more This article explores the gaps left by the Constitutional Court's jurisprudence in relation to what the appropriate internal appeal mechanism should be at the level of municipalities for the approval of building plans. This follows the unanimous judgment of the Constitutional Court in City of Johannesburg Metropolitan Municipality v Chairman of the National Building Regulations Review Board 2018 5 SA 1 (CC) in which the Court found section 9 of the National Building Regulations and Building Standards Act 103 of 1977 (NBR Act), subjecting municipal building decisions to appeal by a "Review Board" appointed by the Minister of Trade and Industry, to be inconsistent with the original constitutional powers of municipalities over planning and building regulations. We argue that although the ground for holding section 9 of the NBR Act unconstitutional is already deeply entrenched in the Court's planning jurisprudence, the judgment has left a whopping gap on where prospect...
Ingrype in die autonomie van Suid-Afrikaanse plaaslike regerings: Die aanvoer van die minderheids... more Ingrype in die autonomie van Suid-Afrikaanse plaaslike regerings: Die aanvoer van die minderheidsbeslissing in die Merafong City-saak Teen die agtergrond van die aard en wese van die Suid-Afrikaanse plaaslike regering wat na 1996 tot stand gekom het, is die saak van Merafong City Local Municipality v AngloGold Ashanti Ltd [2016] ZACC 35 een van die mees onlangse sake betreffende die inbreukmakende geaardheid van nasionale regulering van munisipale bevoegdhede. Een van die belangrikste aangeleenthede in hierdie saak was die vraag tot watter mate appèl na 'n Minister moontlik is wanneer 'n munisipaliteit 'n besluit neem rondom heffings vir die verskaffing van waterdienste (vir huishoudelike en industriële gebruik). Hierdie artikel handel met die minderheidsuitspraak van Regter Jafta in die Grondwetlike Hof en ondersteun die regter se interpretasie wat stel dat dit ongrondwetlik is vir die nasionale regering om as appèlliggaam in te tree in soverre dit 'n munisipaliteit se uitoefening van 'n oorspronklike bevoegdheid aangaan. Die artikel maak spesifiek melding van die moontlike wysiging van artikel 8 van die Wet op Waterdienste 108 van 1997 ten einde die genoemde ongrondwetlikheid aan te spreek.
This article responds to the tension inherent in the Constitution of the Republic of South Africa... more This article responds to the tension inherent in the Constitution of the Republic of South Africa 1996 which lists ‘the environment’ proper as a function of national and provincial government. The authors discuss one of the arguments raised in the recently decided case of Marius Nel and Others v Hessequa Local Municipality and Others (2015) with particular emphasis on what the court’s reasoning adds to the growing body of jurisprudence on local government’s authority to govern environmental matters and the need for cooperative environmental governance in the South African context. The article features an overview of the relevant facts and findings in the Hessequa case, followed by a discussion of the implications of the court’s judgment.
African Journal of International and Comparative Law
Against the backdrop of the content and specific obligations arising from the right to water in i... more Against the backdrop of the content and specific obligations arising from the right to water in international law, this article compares how the legal regimes in Finland and South Africa protect the right to water. The discussion shows that both countries provide two extensive and very different constitutional frameworks to regulate the right to water. Variances in approach at the domestic level is attributed to differences in legal cultures, hydrological circumstances and stages of socioeconomic development. It is argued that diverse development challenges may justify the need for different legislative and other measures to realise the right to water at the domestic level.
In this article we explore the extent to which the South African mining industry can contribute t... more In this article we explore the extent to which the South African mining industry can contribute to realising positive obligations stemming from socio-economic rights, and in particular, the right of access to water. Our hypothesis is that government, as the primary addressee of socio-economic rights obligations, is unable fully and on its own, to realise the right of access to water in South Africa. Because of the ecological impact of mines on water resources and resultant socio-economic externalities that are passed on to society, we argue that mines must contribute to the South African transformative constitutional agenda by realising, albeit in a limited way, positive obligations related to the right of access to water. Our analysis is situated at the interface of three conceptual frameworks within which we theoretically embed the inquiry: the movement from government to governance and the involvement of non-state actors in governance tasks, corporate social responsibility, and human rights obligations of corporations. We suggest in the final instance that a practical way for mines to contribute to the realisation of the right of access to water could be through their statutorily prescribed social and labour plans.
They were there to motivate me even through the most difficult times. Daniel Pallangyuo was parti... more They were there to motivate me even through the most difficult times. Daniel Pallangyuo was particularly useful in listening to my lectures on various aspects of transformative constitutionalism. I also want to acknowledge the contribution of my late brother, Evaristus Fu-uh Fuo. Apart from making me study law instead of history at the undergraduate level, he taught me at the age of 16 to wake up every school day at 4:00 am to study. The passion for studying that he nurtured in me has become a culture. His preference for law and not history was a correct choice. A choice I will never regret. Although he has travelled to the world beyond, his marks are indelible. I remain grateful for his positive influence. vi
Following the example of South Africa, Kenya, Tunisia and Zimbabwe have recently adopted constitu... more Following the example of South Africa, Kenya, Tunisia and Zimbabwe have recently adopted constitutions that contain bills of rights, embrace the ideals of decentralisation and profess a commitment to participatory democracy. In these countries, different forms of local government are constitutionally protected and accorded some degree of self-governing powers. As part of the state's overarching governance machinery, these governments are obliged to contribute towards the realisation of constitutionally-defined objectives, including a variety of constitutionallyentrenched rights, the pursuit of social justice and sustainable development. As the level of government closest to communities, a local government is constitutionally obliged to facilitate public participation in local governance. In South Africa, the Constitutional Court has interpreted the scope of the government's obligation to facilitate public participation in policy formulation and law-making processes extensively. The article explores the Court's jurisprudence on the nature and extent of the duty to facilitate public participation in order to distil lessons that could guide local authorities in Kenya, Tunisia and Zimbabwe to optimise the quality of public participation in local governance. I argue that, if implemented, guidelines distilled from the Court's jurisprudence could help optimise the quality of public participation at the local level in the various countries.
Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad, 2014
The above constitutional commitment constitutes the basis of the vision of transformative constit... more The above constitutional commitment constitutes the basis of the vision of transformative constitutionalism which has been the subject of extensive academic discourse. 2 South African scholars and jurists commenting on the transformative
Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad, 2014
BCLR 1157 (CC) (hereafter Minister of Education) paras 10-11. I have run into debates with some l... more BCLR 1157 (CC) (hereafter Minister of Education) paras 10-11. I have run into debates with some legal scholars who hold the view that ''policy'' cannot be enforced merely because it is ''policy''. It was against the backdrop of such a debate with Theunis Meyer that I was given an opportunity by Professor Louis Kotze and other organisers of a conference on "The Regulation of Invasive Species-European and South African Perspectives" (4-6 November 2012, Seminaris Campus Hotel, Berlin) to share some of the findings of my ongoing research. I gave a short presentation entitled "Policies as a governance instrument in regulating invasive species: Comments from a South African constitutional perspective". In that presentation, I explained what constitutes the core of this article in relation to the regulation of invasive species. Although not directly related to the status of ''executive'' policies, Klare explains that in South Africa, the general tendency amongst conservative legal scholars and judges is to eschew "extra-legal factors" when interpreting and enforcing law-especially the Constitution of the Republic of
They were there to motivate me even through the most difficult times. Daniel Pallangyuo was parti... more They were there to motivate me even through the most difficult times. Daniel Pallangyuo was particularly useful in listening to my lectures on various aspects of transformative constitutionalism. I also want to acknowledge the contribution of my late brother, Evaristus Fu-uh Fuo. Apart from making me study law instead of history at the undergraduate level, he taught me at the age of 16 to wake up every school day at 4:00 am to study. The passion for studying that he nurtured in me has become a culture. His preference for law and not history was a correct choice. A choice I will never regret. Although he has travelled to the world beyond, his marks are indelible. I remain grateful for his positive influence. vi
South Africa's transition to constitutional democracy marked the end of a system of governmen... more South Africa's transition to constitutional democracy marked the end of a system of government that perpetuated injustice on the basis of race. The Constitution of the Republic of South Africa, 1996 (the Constitution), is committed to correcting these past injustices and aims to establish a society based on social justice. The realisation of the socio-economic rights entrenched in the Constitution (by all organs of state) is one of the ways in which to contribute towards the attainment of social justice. As one of the three spheres of government, the Constitution obliges local government (municipalities) to play a role in contributing towards realising constitutional objectives.The book questions the extent to which the legal and policy framework on local government in South Africa enable municipalities to contribute towards the pursuit of social justice. The book explores the relevance and potential of local government indigent policies and Integrated Development Plans (IDPs) -...
The Constitution of the Republic of South Africa, 1996 is committed to addressing the injustices ... more The Constitution of the Republic of South Africa, 1996 is committed to addressing the injustices of the past and to establishing a society based on social justice. This constitutional commitment is now firmly rooted both in the vision of transformative constitutionalism and the constitutional obligation on government to promote sustainable development. Scholars and jurists agree that social justice is primarily concerned with the eradication of poverty and extreme forms of inequalities in order to ensure that impoverished people have the basic needs required to function as true equals in socio-political life. The constitutional commitment to pursue social justice translates into a mandate which must be realised by the government of South Africa. As a co-responsible sphere of government, scholars and other experts share the view that local government is equally obliged to contribute towards the pursuit of social justice. The purpose of this article is to explore and critically invest...
This article aims to contribute to the growing body of urban climate-governance research from a c... more This article aims to contribute to the growing body of urban climate-governance research from a comparative legal perspective. It analyses the climate-related mitigation and adaptation efforts in the building sector of three cities: Cape Town (South Africa), Hamburg (Germany), and São Paulo (Brazil). We examine national, state, and local laws and policies with a focus on building-related energy, water, and green infrastructure. The comparative analysis reveals similarities and differences in multilevel building-related laws and policies that partly enhance and partly limit cities’ climate-mitigation and adaptation efforts. The study also carves out synergies, conflicts, and key challenges in building-related climate mitigation and adaptation at the city level and suggests how identified shortcomings could be overcome.
It is axiomatic that Grootboom (Government of the Republic of South Africa v Grootboom 2001 (1) S... more It is axiomatic that Grootboom (Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) hereinafter “Grootboom”) remains the hallmark of the Constitutional Court’s success in terms of its transformative socio-economic rights jurisprudence. In this regard, De Vos has argued that lawyers and legal academics who wish to pursue the transformative possibilities of the Bill of Rights may find much to assist them in the Grootboom case. One of the reasons for De Vos’s recommendation is that the Court acknowledged the transformative nature of the Constitution in this Case and strongly asserted the interrelated, interdependent and mutually reinforcing nature of the rights in the Bill of Rights in achieving the transformative objectives of the Constitution. The purpose of this article is to reflect on the court’s transformative jurisprudence in Grootboom and to argue that, although the court strongly asserted the interrelated and interdependent nature of the variety of right...
The dawn of constitutional democracy in South Africa triggered a new wave of immigration into the... more The dawn of constitutional democracy in South Africa triggered a new wave of immigration into the country. Foreign migrants post-1994 now make up about seven per cent of the country's population. The majority of the new intake are Africans pursuing economic opportunities, or refugees seeking asylum. The convergence of South African citizens and foreigners, especially in the country's major cities, generates competition over space and limited social welfare services which at times degenerates into conflicts with dire consequences. Some South African Ministers and local government leaders have resorted to a nativistic discourse to address competition over limited welfare services and to shield themselves for the failures of the State to achieve the large-scale egalitarian transformation envisaged by the Constitution of the Republic of South Africa, 1996. This article uses local government indigent policies to show how several South African municipalities use citizenship as a m...
This article explores the gaps left by the Constitutional Court's jurisprudence in relation t... more This article explores the gaps left by the Constitutional Court's jurisprudence in relation to what the appropriate internal appeal mechanism should be at the level of municipalities for the approval of building plans. This follows the unanimous judgment of the Constitutional Court in City of Johannesburg Metropolitan Municipality v Chairman of the National Building Regulations Review Board 2018 5 SA 1 (CC) in which the Court found section 9 of the National Building Regulations and Building Standards Act 103 of 1977 (NBR Act), subjecting municipal building decisions to appeal by a "Review Board" appointed by the Minister of Trade and Industry, to be inconsistent with the original constitutional powers of municipalities over planning and building regulations. We argue that although the ground for holding section 9 of the NBR Act unconstitutional is already deeply entrenched in the Court's planning jurisprudence, the judgment has left a whopping gap on where prospect...
Ingrype in die autonomie van Suid-Afrikaanse plaaslike regerings: Die aanvoer van die minderheids... more Ingrype in die autonomie van Suid-Afrikaanse plaaslike regerings: Die aanvoer van die minderheidsbeslissing in die Merafong City-saak Teen die agtergrond van die aard en wese van die Suid-Afrikaanse plaaslike regering wat na 1996 tot stand gekom het, is die saak van Merafong City Local Municipality v AngloGold Ashanti Ltd [2016] ZACC 35 een van die mees onlangse sake betreffende die inbreukmakende geaardheid van nasionale regulering van munisipale bevoegdhede. Een van die belangrikste aangeleenthede in hierdie saak was die vraag tot watter mate appèl na 'n Minister moontlik is wanneer 'n munisipaliteit 'n besluit neem rondom heffings vir die verskaffing van waterdienste (vir huishoudelike en industriële gebruik). Hierdie artikel handel met die minderheidsuitspraak van Regter Jafta in die Grondwetlike Hof en ondersteun die regter se interpretasie wat stel dat dit ongrondwetlik is vir die nasionale regering om as appèlliggaam in te tree in soverre dit 'n munisipaliteit se uitoefening van 'n oorspronklike bevoegdheid aangaan. Die artikel maak spesifiek melding van die moontlike wysiging van artikel 8 van die Wet op Waterdienste 108 van 1997 ten einde die genoemde ongrondwetlikheid aan te spreek.
This article responds to the tension inherent in the Constitution of the Republic of South Africa... more This article responds to the tension inherent in the Constitution of the Republic of South Africa 1996 which lists ‘the environment’ proper as a function of national and provincial government. The authors discuss one of the arguments raised in the recently decided case of Marius Nel and Others v Hessequa Local Municipality and Others (2015) with particular emphasis on what the court’s reasoning adds to the growing body of jurisprudence on local government’s authority to govern environmental matters and the need for cooperative environmental governance in the South African context. The article features an overview of the relevant facts and findings in the Hessequa case, followed by a discussion of the implications of the court’s judgment.
African Journal of International and Comparative Law
Against the backdrop of the content and specific obligations arising from the right to water in i... more Against the backdrop of the content and specific obligations arising from the right to water in international law, this article compares how the legal regimes in Finland and South Africa protect the right to water. The discussion shows that both countries provide two extensive and very different constitutional frameworks to regulate the right to water. Variances in approach at the domestic level is attributed to differences in legal cultures, hydrological circumstances and stages of socioeconomic development. It is argued that diverse development challenges may justify the need for different legislative and other measures to realise the right to water at the domestic level.
In this article we explore the extent to which the South African mining industry can contribute t... more In this article we explore the extent to which the South African mining industry can contribute to realising positive obligations stemming from socio-economic rights, and in particular, the right of access to water. Our hypothesis is that government, as the primary addressee of socio-economic rights obligations, is unable fully and on its own, to realise the right of access to water in South Africa. Because of the ecological impact of mines on water resources and resultant socio-economic externalities that are passed on to society, we argue that mines must contribute to the South African transformative constitutional agenda by realising, albeit in a limited way, positive obligations related to the right of access to water. Our analysis is situated at the interface of three conceptual frameworks within which we theoretically embed the inquiry: the movement from government to governance and the involvement of non-state actors in governance tasks, corporate social responsibility, and human rights obligations of corporations. We suggest in the final instance that a practical way for mines to contribute to the realisation of the right of access to water could be through their statutorily prescribed social and labour plans.
They were there to motivate me even through the most difficult times. Daniel Pallangyuo was parti... more They were there to motivate me even through the most difficult times. Daniel Pallangyuo was particularly useful in listening to my lectures on various aspects of transformative constitutionalism. I also want to acknowledge the contribution of my late brother, Evaristus Fu-uh Fuo. Apart from making me study law instead of history at the undergraduate level, he taught me at the age of 16 to wake up every school day at 4:00 am to study. The passion for studying that he nurtured in me has become a culture. His preference for law and not history was a correct choice. A choice I will never regret. Although he has travelled to the world beyond, his marks are indelible. I remain grateful for his positive influence. vi
Following the example of South Africa, Kenya, Tunisia and Zimbabwe have recently adopted constitu... more Following the example of South Africa, Kenya, Tunisia and Zimbabwe have recently adopted constitutions that contain bills of rights, embrace the ideals of decentralisation and profess a commitment to participatory democracy. In these countries, different forms of local government are constitutionally protected and accorded some degree of self-governing powers. As part of the state's overarching governance machinery, these governments are obliged to contribute towards the realisation of constitutionally-defined objectives, including a variety of constitutionallyentrenched rights, the pursuit of social justice and sustainable development. As the level of government closest to communities, a local government is constitutionally obliged to facilitate public participation in local governance. In South Africa, the Constitutional Court has interpreted the scope of the government's obligation to facilitate public participation in policy formulation and law-making processes extensively. The article explores the Court's jurisprudence on the nature and extent of the duty to facilitate public participation in order to distil lessons that could guide local authorities in Kenya, Tunisia and Zimbabwe to optimise the quality of public participation in local governance. I argue that, if implemented, guidelines distilled from the Court's jurisprudence could help optimise the quality of public participation at the local level in the various countries.
Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad, 2014
The above constitutional commitment constitutes the basis of the vision of transformative constit... more The above constitutional commitment constitutes the basis of the vision of transformative constitutionalism which has been the subject of extensive academic discourse. 2 South African scholars and jurists commenting on the transformative
Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad, 2014
BCLR 1157 (CC) (hereafter Minister of Education) paras 10-11. I have run into debates with some l... more BCLR 1157 (CC) (hereafter Minister of Education) paras 10-11. I have run into debates with some legal scholars who hold the view that ''policy'' cannot be enforced merely because it is ''policy''. It was against the backdrop of such a debate with Theunis Meyer that I was given an opportunity by Professor Louis Kotze and other organisers of a conference on "The Regulation of Invasive Species-European and South African Perspectives" (4-6 November 2012, Seminaris Campus Hotel, Berlin) to share some of the findings of my ongoing research. I gave a short presentation entitled "Policies as a governance instrument in regulating invasive species: Comments from a South African constitutional perspective". In that presentation, I explained what constitutes the core of this article in relation to the regulation of invasive species. Although not directly related to the status of ''executive'' policies, Klare explains that in South Africa, the general tendency amongst conservative legal scholars and judges is to eschew "extra-legal factors" when interpreting and enforcing law-especially the Constitution of the Republic of
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