This issue of Law, Democracy & Development covers a range of topics that are pertinent to our central theme: the promotion of democracy – above all through the protection of fundamental rights – and socio-economic development. Some articles focus on the protection of the rights of vulnerable groups in society; others deal with broader questions ranging from the operation of governmental structures to the manner in which we understand our apartheid past (and, consequently, the lessons we learn for the future). Still others focus on the protection of fundamental rights and the maintenance of democracy in other parts of Southern Africa.

Un grand nombre de sujets pertinents à notre thème central sont discutés dans cette édition de LDD: la promotion de la démocratie – avant tout l’établissement des droits fondamentaux – et le développement socio-économique.

The article analyses the recent amendments to the Pension Funds Act 24 of 1956 relating to the divorce benefit, particularly the amendment introduced by section 37D. This amendment will contribute positively to the development of South African retirement law. The allocation and payment of a share of a retirement fund member’s retirement savings on divorce has been the subject of intense debate, especially in view of the unfairness to non-member former spouses (who are usually women) in this regard before 1 November 2008.

Deon Erasmus introduces his evaluation of the South African criminal trial process, which is governed by the Criminal Procedure Act 51 of 1977, by observing that the oral nature of a trial is one of its essential features. He then discusses the procedural explanations given to the accused and notes that there are important and informed procedural choices that the accused is required to make, which may have a major effect on the outcome of the trial.

The public health sector is constantly at pains to provide adequate basic healthcare in many areas of South Africa.1 However, despite the difficulties faced by the state in this regard and the sharp criticism levelled at it for its failure to ensure a high standard of basic public healthcare, the state has taken it upon itself to draft legislation, in the form of the National Health Amendment Bill 2008 (the Bill),2 enabling it to regulate the pricing of private healthcare. Has the long arm of the law perhaps stretched too far by attempting to regulate the private healthcare industry? Are these measures reasonable in the state’s ongoing battle for progressive realisation of the right to healthcare?

Irma Kroeze considers the question whether the Constitutional Court has assumed the responsibility of creating “public memory” in South Africa. While history and the past must be remembered, it is also susceptible to distortion and reconstruction. That is why the past often seems like a foreign country – one that bears little or no relation to one’s own recollection. The author argues that South Africa has been concerned with that foreign country called the past for quite some time. 

Stu Woolman notes that for almost a decade government actors and academics have bemoaned a gaping hole in our law: the Final Constitution promised that Parliament would establish a legal regime to mediate and to resolve intergovernmental conflicts. Parliament ultimately produced this super-ordinate legislation in 2005: the Intergovernmental Relations Framework Act. This Act defines intergovernmental relations as “relationships that arise between different governments or between organs of state from different governments in the conduct of their affairs.”

Nadjita Ngarhodjim discusses the challenges of scrutinising regional standards of democracy in Africa. Democratisation, it is argued, was triggered mainly by the change in the distribution of international political power in the late 1980s. The continent’s leaders, according to the author, reacted promptly, deciding to clothe democracy in African dress by setting their own standards.

Patrick Matibini examines the concept of freedom of information, starting with a historical overview of the political arena in Zambia. The primary objective of this article is said to be threefold – first, to demonstrate the importance of freedom of information in a democratic state; secondly, to consider the quest for legislating freedom of information in Zambia; and, thirdly, to highlight the principles of the Freedom of Information Bill that has been presented to the Zambian National Assembly.

This article, co-authored by LLB student Lesega Mnguni and Justin Muller as part of our ALAD programme (see Who We Are) deals with the principle of legality as enunciated in Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC). In this matter an accused person was charged with rape after committing a grossly indecent sexual assault on a nine-year-old girl.