Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120080002&lang=en vol. 11 num. 2 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Editorial</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000200001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Good Governance</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000200002&lng=en&nrm=iso&tlng=en <![CDATA[<b>The protection of fundamental rights in the Netherlands and South Africa compared</b>: <b>can the many differences be justified?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000200003&lng=en&nrm=iso&tlng=en This contribution considers the protection of fundamental rights in the Netherlands and South Africa. Both countries strive to be constitutional democracies that respect basic rights. But both countries go about this aim in very different ways. These different paths to constitutionalism are compared, as well as the reasons for these differences and whether it can be said that these differences are justifiable. This is done by comparing the character of the rights guaranteed in the Dutch and South African legal orders, the sources of these rights and the locus or centre of protection in both systems. The conclusion is reached that no single or perfect route to attaining the desired protection of fundamental rights exists, but that one should always enquire as to the state of individual freedom and the right to make free political choices in measuring the worth of a system's protection of rights. <![CDATA[<b>UN Peacekeeping in Africa and good governance</b>: <b>challenges and prospects</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000200004&lng=en&nrm=iso&tlng=en While UN peacekeeping operations are in most cases confronted with a multitude of intertwined problems, this seems to be even worse in Africa. Operations on African soil have to react more than averagely to inter- as well as intrastate conflicts based upon ethnic tension, to conflicts starting from extreme poverty or the abuse of natural resources, and to situations in which governments are failing to do what governments should do. In the paper the mandates of the six ongoing UN peacekeeping operations in Africa - as of 1 May 2007, that is, in the Western Sahara, Liberia, the Democratic Republic of the Congo, Ethiopia and Eritrea, Côte d'Ivoire and Sudan - are analysed from the perspective of their (desired) contribution to the establishment of good governance structures. That analysis is followed by some observations upon the changing nature of peacekeeping operations. This includes the need to react to the specificity of African conflicts - which are often characterised by the combination of poverty, weak public institutions, a small private sector, high illiteracy, a narrow skills base, and limited capabilities for guaranteeing security - and the more general move towards 'peace building', which is in so many ways similar to a 'good governance' approach. The paper concludes by formulating a few lessons. These relate to such things as the need for UN peace keepers to take care of the economic root causes of the conflicts they have to deal with, as well as the task to invest systematically in building up governmental structures and legal institutions, while at the same time training police, army and judiciary staff in respect for human rights and in notions such as trying to solve conflicts without the use of violent means. The paper ends by underlining the necessity of a good interplay between the UN peace keepers and all state and non-state actors involved, from land lords and associations of farmers to regional intergovernmental organisations, from NGO's to the International Financial Institutions and UN Specialised Organisations. If this is not going to happen, the focus is too much upon the military aspects only, and that is - needed as it may be in the short run - a guarantee that conflicts will reoccur as soon as the operations have ended. <![CDATA[<b>The world trade organisation and human rights</b>: <b>the role of principles of good governance</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000200005&lng=en&nrm=iso&tlng=en The present article attempts to determine the role of principles of good governance in the discussion regarding the World Trade Organisation (WTO) and its human rights accountability. It shows that the WTO as an organisation cannot be compared to other international organisations that are more autonomous such as the International Monetary Fund (IMF) or the World Bank. This does not mean, however, that the WTO has no autonomous powers at all. This contribution attempts to make clear what these activities are and how they may affect the protection of human rights. The implementation of good governance principles in international organisations can be considered a sine qua non for the realisation of human rights. Therefore, it will be examined what role the principles of good governance plays within the WTO. More specifically, the focus will be on how the good governance principles of transparency and participation can contribute to sensitising the organisation for human rights considerations. <![CDATA[<b>Good governance in public procurement</b>: <b>a South African case study</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000200006&lng=en&nrm=iso&tlng=en In this article good governance in public procurement, with particular reference to accountability is discussed. The principle of providing adequate remedies in public procurement is put under the spotlight. This is done with reference to the decision in Steenkamp NO v Provincial Tender Board, Eastern Cape. In this casethe Constitutional Court had to consider whether an initially successful tenderer could lodge a delictual claim for damages to compensate for expenses incurred after conclusion of a contract, which was subsequently rendered void on an application for review of the tender award. The applicable principles of good governance and the applicable provisions of the UNCITRAL Model Law on Public Procurement and the WTO plurilateral Government Procurement Agreement are analysed. This is done to enable an evaluation of the decision by the Constitutional Court in the above case. It is concluded that the South African public procurement system does in this instance comply with the basic principles of good governance with regard to accountability. <![CDATA[<b>Public participation, good environmental governance and fulfilment of environmental rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000200007&lng=en&nrm=iso&tlng=en This article succinctly, albeit critically, assesses with reference to some international developments the role that public participation is expected to play in state governments' fulfilment of citizens' environmental rights. Based on a survey of literature and jurisprudence, the article considers substantive environmental rights as human rights and the notion of public participation generally. It also puts forward some ideas on the relation between public participation and the fulfilment of environmental rights and how this may feed into good environmental governance. The article does not aim to contribute to the discourse on good governance or good environmental governance per se. Instead, it introduces the presumed role of public participation processes in an environmental rights context what may be but a facet of good governance and/or good environmental governance. Where applicable, the South African context is employed to illustrate and reinforce the observations and/or viewpoints maintained. <![CDATA[<b>The Good, the Bad and the Ugly: Using Good and Cooperative Governance to Improve Environmental Governance of South African World Heritage Sites: a case study of the Vredefort Dome</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000200008&lng=en&nrm=iso&tlng=en South Africa became a signatory to and ratified the World Heritage Convention, 1972 (WHC) in 1997. It thereby voluntarily agreed to identify and conserve world heritage areas of universal value for the benefit of mankind. This article presents a case study of the Vredefort Dome, one of South Africa's World Heritage Sites (WHS) and specifically its governance strategies to ensure proper and sustainable governance. Firstly, the issue of fragmentation of the environmental governance regime applicable to WHS is discussed, and in doing so, refers to the various legislative and common law responsibilities and institutional structures related to environmental governance of WHS. Secondly, it briefly discusses the concept of good governance and the concept of cooperative governance as a sub-component of good governance. Finally it comprehensively proposes various strategies to ameliorate the current fragmented and unsustainable environmental governance effort relating to WHS.