No. 1: Towards the Harmonization of Immigration and Refugee Law in SADC

The MIDSA project on legal harmonization of immigration and refugee law in the Southern African Development Community had four main objectives: (a) to collect and collate information on national legislation in a single publication as a resource for policy-makers; (b) to identify points of similarity and difference in national immigration law between SADC-member states; (c) to investigate the possibilities for harmonization of national immigration policy and law; and (d) in the interests of good governance and regional cooperation and integration to make specific recommendations for harmonization. A second, parallel, SAMP study is investigating the issue of harmonization of migration data collection systems within SADC. For ease of inter-country comparison, the report contains a series of comparative tables covering all facets of the immigration regime of the SADC states. The tables can be used as a resource in themselves but are also used to supplement the analysis in the text proper. This executive summary focuses on the main findings and recommendations of the narrative report. The states of the SADC have committed themselves to increased regional cooperation and integration. This commitment is reflected in a series of Protocols to which the various states are signatory. The Protocol dealing with the cross-border migration of people within SADC (the so-called “Draft Free Movement Protocol”) owed too much to European (Schengen) precedent and too little to the political and economic realities of the region. As a result, the Protocol (and a modified version called the “Facilitation of Movement Protocol”) was rejected by certain states in the region (primarily the migrant-receiving states). The level of opposition was such that the Protocol was shelved by SADC in 2000. While this publication is not designed to promote or contest the idea of free movement, it is the belief of the MIDSA partners that good migration governance is a general aim to which all can subscribe. To that end it makes perfect sense for the individual states of SADC to re-examine their current legislation. Migration has changed dramatically in the last decade and a review of the adequacy of existing legal and policy instruments would be a positive development for all states. Beyond the issue of updating legislation and making it more relevant to current management challenges, it is clear that regional cooperation in migration management would be facilitated by a set of basic principles and laws that applied more-or-less across the region. Obviously each country has certain unique features and each state reserves the right to pursue its own immigration policy. However, there are many features of migration governance that are common to all and there is nothing to be lost, and a great deal to be gained, by simplification and standardization. A regional review of this nature also allows for an analysis of the degree to which individual states have been influenced by or subscribe to international conventions and norms in the migration and refugee protection areas. A secondary purpose of this publication is therefore to stimulate a regional debate on the extent to which individual SADC states do or should adhere to the principles of international conventions and guidelines on the movement of peoples and the protection of the persecuted

What Role Can Regulations Play? A South African Public Law Perspective on the Potential Response through Regulations to Constitutional Reservations about the Copyright Amendment Bill, B-13B of 2017

This working paper addresses several issues in South African law relevant to determining whether and to what extent regulations may address genuine problems in the Copyright Amendment Bill [CAB]. Regulations are of course not yet drafted for this Bill and the Bill remains a Bill and is not yet an Act. Indeed, as discussed further below, the Bill is currently under consideration in Parliament as part of a section 79 process. In addition to its focus on the CAB, this paper identifies a set of emerging South African public law issues associated with similarly situated legislation. After a background section that places the CAB within the currently ongoing joint process between Parliament and President and outlines the three constitutional reservations to the CAB raised by the President (section one), this working paper addresses the boundaries on regulations and the potential role regulations to the CAB can play in three parts: constitutional issues (section two), new public law issues (section three), and accepted principles and parameters for drafting regulations in South Africa (section four). In section five, more specific questions and issues regarding the CAB are discussed. These include the question of whether the regulations can add new definitions of terms (e.g. to the definition of performers to exclude extras) as well as some specific issues raised with respect to the bill by informed critics, such as how the bill (particularly section 22(3)) might be read to apply retroactively and the degree to which the royalty rights in the bill (section 6A, et seq.) and reversion rights may be assigned through contract. This working paper does not give a view on how to resolve legitimate problems, but rather outlines options available to address such problems in regulations – arguing that such options do exist in regulatory drafting, both in the current period of section 79 consideration of the Bill and, assuming the Bill is enacted in at least roughly similar form, in the period between its enactment and its being brought into force. Regulations can play a potential significant and constructive role in both these periods in addressing genuine constitutional issues

Citizenship, xenophobic violence and law's dark side

This paper discusses xenophobic violence and the role of South African law

Judicious Transparency

Paper presented at SAIFAC/CLOSA ColloquiumThis paper reflects on two instances of contested openness occuring in the course of the recent saga involving Hlophe JP and the judges of the Constitutional Court

My Vote Counts and the Transparency of Political Party Funding in South Africa

No Abstrac

A second organisational amnesty?

Paper presented at the Wits History Workshop: The TRC; Commissioning the Past, 11-14 June, 199

Hlophe JP and the current politics of the South African Judiciary

This paper was presented at the School of Social Sciences, University of the Witwatersrand.The aims of this paper is to provide an overview of judicial politics and an understanding of these politics

Africa should be studied as a new territory of regulatory capitalism

While some had questioned whether the continent had literally fallen off the map of the study of global capitalism, capitalism with African scope is now back. Numerous sectors have seen the emergence of continent-wide private sector activities and intertwined systems of public regulation, with competition regulators perhaps most prominent. These developments and the accelerating regional integration movement warrant the study of a distinctively African variety of regulatory capitalism

No. 1: Towards the Harmonization of Immigration and Refugee Law in SADC

The MIDSA project on legal harmonization of immigration and refugee law in the Southern African Development Community had four main objectives: (a) to collect and collate information on national legislation in a single publication as a resource for policy-makers; (b) to identify points of similarity and difference in national immigration law between SADC-member states; (c) to investigate the possibilities for harmonization of national immigration policy and law; and (d) in the interests of good governance and regional cooperation and integration to make specific recommendations for harmonization. A second, parallel, SAMP study is investigating the issue of harmonization of migration data collection systems within SADC. For ease of inter-country comparison, the report contains a series of comparative tables covering all facets of the immigration regime of the SADC states. The tables can be used as a resource in themselves but are also used to supplement the analysis in the text proper. This executive summary focuses on the main findings and recommendations of the narrative report. The states of the SADC have committed themselves to increased regional cooperation and integration. This commitment is reflected in a series of Protocols to which the various states are signatory. The Protocol dealing with the cross-border migration of people within SADC (the so-called “Draft Free Movement Protocol”) owed too much to European (Schengen) precedent and too little to the political and economic realities of the region. As a result, the Protocol (and a modified version called the “Facilitation of Movement Protocol”) was rejected by certain states in the region (primarily the migrant-receiving states). The level of opposition was such that the Protocol was shelved by SADC in 2000. While this publication is not designed to promote or contest the idea of free movement, it is the belief of the MIDSA partners that good migration governance is a general aim to which all can subscribe. To that end it makes perfect sense for the individual states of SADC to re-examine their current legislation. Migration has changed dramatically in the last decade and a review of the adequacy of existing legal and policy instruments would be a positive development for all states. Beyond the issue of updating legislation and making it more relevant to current management challenges, it is clear that regional cooperation in migration management would be facilitated by a set of basic principles and laws that applied more-or-less across the region. Obviously each country has certain unique features and each state reserves the right to pursue its own immigration policy. However, there are many features of migration governance that are common to all and there is nothing to be lost, and a great deal to be gained, by simplification and standardization. A regional review of this nature also allows for an analysis of the degree to which individual states have been influenced by or subscribe to international conventions and norms in the migration and refugee protection areas. A secondary purpose of this publication is therefore to stimulate a regional debate on the extent to which individual SADC states do or should adhere to the principles of international conventions and guidelines on the movement of peoples and the protection of the persecuted