Research Outputs (Public, Constitutional and International Law)

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    The judicial entrenchment of constitutionalism in Africa: A comparative overview of the positive development in the Kenyan and South African jurisdictions
    (2018) Mathenjwa, Mbuzeni
    Similarly, to most of their counterparts in Africa, South Africa and Kenya have a history of disrespecting constitutionalism by flouting their constitutions. This occurs despite the good intentions to preserve judicial independence, the rule of law, democracy and constitutionalism displayed by these countries by enshrining these values in their constitutions. The guarantee of judicial independence by the constitution is essential for an impartial judge to preside without bias or favor over matters that involve the violation of the constitution by the executive, the legislature and even the judiciary itself. It is the enshrining of the independence of the judiciary that enables the Kenyan and South African courts respectively to deliver judgements that have declared unconstitutional and invalid the election of a sitting president during a presidential election in Kenya, declaring the conduct of the president and the legislature unconstitutional and invalid in South Africa and forcing these institutions to comply with the constitution. While both Kenya and South Africa can learn from each other with respect to the preservation of constitutionalism, it is more important that the democracies in the world should learn from these democracies which have taken giant steps in protecting judicial independence and, ultimately, preserving constitutionalism.
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    The pros and cons of Intergovernmental Supervision under the 1996 Constitution of South Africa
    (2016) Mathenjwa, Mbuzeni Johnson
    In South Africa power is exercised simultaneously by all spheres of government.1 Consequently provision is made for the constitutional principles of cooperative government to coordinate government functions and intergovernmental supervision. Given the interdependence, distinctiveness and inter-relatedness of spheres of government,2 intergovernmental supervision is essential to preserve the unity of the Republic, but could also be prejudicial to the autonomy of the spheres. Although this article explores both views of intergovernmental supervisory powers, it is not an exhaustive discussion. Intergovernmental dispute resolution, established under the Intergovernmental Relations Framework Act (IGRFA)3 and the mechanism established by the Constitution to review intergovernmental supervisory powers are also assessed. The article concludes with proposals for improvement
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    The use of e-procurement in South African public procurement law: challenges and prospects
    (JUTA publishers, 2018) Anthony, Allison
    his article will look at what e-procurement is, whether the current legislative framework in South Africa provides for it, its advantages and challenges, and current developments. Reference will be made to e-procurement as regulated by international instruments, specifically the UNICITRAL Model Law, as there is currently no African model with which to compare or measure South Africa's possible experience.
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    Re-categorising public procurement in South Africa: construction works as a special case
    (North-West University, 2019) Anthony, Allison
    Public procurement is generally known to be the acquisition of goods and services by the government from the private sector. Construction works are considered to constitute services and as such are not specifically referred to in the Constitution of the Republic of South Africa, 1996. Re-categorising public procurement may hold many advantages for the regulation of construction procurement law as a unique form of public procurement in South Africa. The definition of construction works is thus important when establishing what is procured in construction procurement. This definition in turn may indicate that the procurement of construction works is indeed a unique form of procurement and should accordingly be re-categorised in South African public procurement law.
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    Sub-contracting in public procurement - the impact of the 2017 Preferential Procurement Regulations on the construction industry
    (Juta and Company (Pty) Ltd, 2019) Anthony, Allison
    The 2017 Preferential Procurement Regulations brought about vast changes to the legal landscape of construction procurement, specifically with regard to subcontracting. This article evaluates the impact of these regulations and the effect these changes may have on construction procurement and the construction industry at large. Recommendations are made where vacuums in the legal framework are found.
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