Jonathan Klaaren

University of the Witwatersrand | wits · School of Law/Wits Institute for Social and Economic Research (WiSER)

Influenced by processes of globalization and localization, many fields of social and commercial practice – including legal services – across Africa are undergoing rapid transformation. It should come as no surprise that these processes of globalization and transformation include the ongoing transformation of corporate lawyering. Lawyers from Johann...

Section I of this article argues that a normative perspective which privileges neither democracy nor human rights and is contextual and critical is necessary to guide South African constitutional interpretation. Section II describes the prominent institutions of the 1996 Constitution which establishes a constitutional democracy with multiple struct...

Organised business played a significant role in the formal policy processes developing the competition regime after apartheid up to and including the drafting of South Africa’s competition law. The social organisation of business and its participation in formal policy processes were shifting and changing rapidly. Exploring several published account...

Like many other countries, South Africa depends heavily on its public procurement system and faces persistent issues of corruption within that system. Its regulatory regimes for public procurement and for anti-corruption are nonetheless distinct. Despite knowledge of significant corruption in the final decades of apartheid, anti-corruption was trea...

South Africa is in the process of reforming its copyright law, attempting to update and align it with constitutional rights and existing and prospective international treaty obligations. With the adoption of the Copyright Amendment Bill [B13B-2017] by both Houses of Parliament in March 2019, the apartheid-era Copyright Act of 1978 had almost succes...

This short book analyses three distinct and key features of the state: the system of appointment and removal in the public service and municipalities, high-level appointments and removals within the criminal justice sector, and public procurement. A state’s politics and its capacities are constituted in important ways by how it fills its public adm...

This research study identifies a specific layer of regulation within the governance regime which is a key factor impeding the procurement and delivery of public infrastructure in South Africa. We first identify current weaknesses of conflict and confusion at the level of soft law in the procurement and delivery of public infrastructure projects. Th...

This paper assesses South Africa’s recent development and actual use of digital health surveillance tools from a comparative and human rights perspective. We first summarise the debate and emerging evidence regarding whether and how digital health surveillance tools could assist the public health response to the pandemic. Here, we develop a tentati...

The principle and practice of pro bono, or volunteer legal services for the poor and other marginalized groups, is an increasingly important feature of justice systems around the world. Pro bono initiatives now exist in more than eighty countries – including Colombia, Portugal, Nigeria, and Singapore – and the list keeps growing. Covering the sprea...

This short book analyses three distinct and key features of the state: the system of appointment and removal in the public service and municipalities, high-level appointments and removals within the criminal justice sector, and public procurement. A state’s politics and its capacities are constituted in important ways by how it fills its public adm...

The landscape of the health sector in South Africa as seen from a regulatory perspective is rapidly changing under the disruptive impact of digitalisation. Drawing on a paradigm of "strong rights" protection, particularly a robust privacy law fit for the digital age and sourced in the nation's Constitution, the operationalisation and application of...

This chapter identifies several locations where one might look to trace how Professor Eleanor Fox has contributed to the South African competition regime. Choosing one of those, her contributions to its published jurisprudence, we survey decisions of the competition authorities to find those referring to Professor Fox and her work. Those decisions...

The 2020 Chisuse case of the Constitutional Court of South Africa comes at a crucial moment in South Africa’s post-apartheid trajectory where the circle of citizenship is ‘shrinking’ The Constitutional Court decided in favour of four of the five foreign-born applicants, all children with one citizen parent, who had sought an order to be registered...

Written for law students, this chapter does not think about the legal system as a web of rules and principles. Instead, it thinks about a legal system (here the South African legal system) as emerging from the work and practice of its key personnel. The chapter examines the actions of officials, professionals and even ordinary persons who make up t...

This chapter describes and assesses the institutional work done in transforming the apartheid-era organisation, the Legal Aid Board, into the post-apartheid Legal Aid South Africa (Legal Aid SA). This organisation is generally regarded as one of the more successful postapartheid units in the public administration. Its continuing and daunting task i...

As a result of the processes of globalisation and of technological revolution, markets now transcend countries’ physical borders. Increasingly interconnected, borderless and digitalised global markets, thus, tend to develop mass markets, increase the integration of enterprises and so produce goods and provide services that are readily accessible fo...

The impact of digitalisation on society has posed and re-posed a number of significant questions: What should be the limits of information stored by the government of its citizens? How can that information be appropriately shared with persons and firms in the private sector in order to unlock its economic value? Why does it seem as if the technolog...

The ‘Information Society’ – the roots of which can be traced back to efforts after the Second World War to improve the predictability of weather patterns by combining the information gathering and retrieval abilities of new computing equipment and modern systems of electronic communications to analyse vast amounts of data – is at an inflection poin...

The aim of this paper is to combine work on lawyers, the legal profession and lawyering in Africa in an era of globalization with some of the theory and insights from the new literature emerging on the Africanization of international economic law and to do so by identifying and exploring as an object of study an African competition field. This conf...

This Joint Academic Opinion discusses the referral by the President of South Africa of the Copyright Amendment Bill back to Parliament. We address the President’s reservations about the Bill’s constitutionality, as well his expressed concerns about the Bill’s domestic application of international law. We analyse each of, and only, the specific clau...

A 2020 judgment of South Africa’s second-highest court is the most significant in the field of public procurement law and policy since the landmark series of AllPay cases concerning the outsourcing of social grant payments. In the field of black economic empowerment more generally, where multiple and conflicting goals have been pursued, Afribusines...

This paper assesses South Africa’s development and actual use of digital health surveillance tools from a comparative and human rights perspective. Our assessment interweaves at least two themes. First, South Africa’s abrupt and still largely unexplained decision to abandon the original Tracing Database, while clearly in line with global trends in...

As part of conceptualizing a form of capitalism specific to the African continent, this paper offers an institutional study of the development of regulatory institutions in Africa, suggested by and suggestive to current theoretical accounts of regulation and its relationship to capitalism. Recent scholarship has sketched a vision of regulatory capi...

Influenced by processes of globalization and localization, many fields of social and commercial practice – including legal services – across Africa are undergoing rapid transformation. It should come as no surprise that these processes of globalization and transformation include the ongoing transformation of corporate lawyering. Lawyers from Johann...

The argument for the recognition of the right to information in international law has continued to strengthen since the South African Constitutional Court’s Certification decision. This paper examines the human right to information in international law and makes the argument that this human right is a significant vehicle for promoting transparency....

This paper overviews PAIA litigation from start 2005 to end 2009 in South Africa and to point out some trends in that access to information litigation, both doctrinal and those of strategic litigation. The conclusion considers the efficacy of the proposed Open Democracy Charter in the light of the preceding discussion of PAIA through the courts.

This chapter explores issues related to the state of pro bono legal services and access to justice in South Africa. As is made clear in this book, what is referred to as “pro bono” comes from the Latin pro bono publico, meaning “for the public good.” It describes legal work undertaken by legal practitioners without remuneration or at significantly...

It has been observed that the scholarship on African responses to climate change law lags behind the reality. This are however some recent efforts to address this gap in the literature. Some recent work has carefully sketched the national development of framework laws in Kenya and Uganda and, taking a pan-African albeit Anglophone perspective, has...

The growing incidence of displacement caused by climate change impacts represents a particular risk area on the African continent. This article focuses on two global and local poles in an investigation of a provincial government’s response to disaster displacement due to xenophobic violence. In 2008 in Gauteng, South Africa the global frame of inte...

The rise of anti-competitive cross-border economic activities such as collusion, international mergers and abuse of dominant positions gives reason to pause and revisit the relationship between competition and trade from the perspective of African countries. In these countries, national markets are generally small and small and medium-sized enterpr...

This paper examines an important feature of the night before the “New Dawn” – the phenomenon of state capture in South Africa. It is primarily interested in analyzing the civil society mobilization against such state capture, specifically the legal and organizational aspects. After exploring the phenomenon of state capture, this paper investigates...

As a result of the processes of globalisation and of technological revolution, markets now transcend countries’ physical borders. Increasingly interconnected, borderless and digitalised global markets, thus, tend to develop mass markets, increase the integration of enterprises and so produce goods and provide services readily accessible for consume...

In a 2 November 2020 decision with potentially far-reaching effects, a unanimous panel of the Supreme Court of Appeal (SCA) upheld an appeal and ordered that the Preferential Procurement Regulations 2017 made by the Minister of Finance in terms of s 5 of the Preferential Procurement Policy Framework Act 5 of 2000 be declared invalid and set aside,...

This working paper identifies specific problems within the regulatory regime as key factors impeding the procurement and delivery of public infrastructure in South Africa and proposes a specific strategy to address those problems. In its three main arguments, the paper then presents a regulatory account of the existing public infrastructure regime,...

Specifying the content and scope of South Africa’s foreign policy is a different matter from that of specifying the foreign affairs powers set out in the Constitution. Yet, the extent of the power to conduct foreign affairs and ratify agreements remains an essential foreign policy consideration. Under customary international law, South Africa has t...

Building on others’ as yet unpublished work, this chapter describes and assesses the institutional work done in transforming the apartheid-era organisation, the Legal Aid Board, into the post-apartheid Legal Aid South Africa (Legal Aid SA). This organisation is generally regarded as one of the more successful post-apartheid units in the public admi...

This paper is written for an August 2020 workshop on climate change litigation. As stated in the call for papers of that event, the "purpose of the workshop is to investigate the state of, potential for and meaning of climate litigation in Africa." This workshop paper assumes a certain degree of familiarity with climate change litigation and its li...

This paper is a pre-peer review version of an article accepted for publication in Economy & Society (2021). Recent scholarship has sketched out a vision of regulatory capitalism that has much traction in the now-emerged field of governance but less in that of economics. That vision depends upon functioning regulatory institutions and effective enfo...

This chapter explores issues related to the state of pro bono legal services and access to justice in South Africa. As is made clear in this book, what is referred to as “pro bono” comes from the Latin pro bono publico, meaning “for the public good.” It describes legal work undertaken by legal practitioners without remuneration or at significantly...

This paper is intended as a chapter in Bradlow and Sidiropoulos (eds) A South African Foreign Policy for the 2020s. This paper considers the question: What role should the Constitution play in foreign policy as distinct from serving as the ultimate text guiding the actions of the judges in those court cases, limited as court cases are to narrowing,...

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...

This paper explores debates and politics over the place of regulatory democracy in contemporary South African constitutionalism. Twenty-five years after the formal legal transition from apartheid, regulatory institutions – by and large not the focus of negotiations in the early 1990s – have increasingly assumed prominence within the South African s...

In response to the COVID-19 pandemic, South Africa (SA) has established a Tracing Database, collecting both aggregated and individualised mobility and locational data on COVID-19 cases and their contacts. There are compelling public health reasons for this development, since the database has the potential to assist with policy formulation and with...

The question of the potential for alternative corporate forms in Africa is a significant one. Alongside the dominant current which argues that the traditional corporation is the way forward for economic growth in South Africa, several other streams of thought have contested and been critical of the traditional corporate model. Within the range of s...

Among other reforms, South African public procurement law needs increased enforcement. The current draft Bill proposes some enforcement measures including a new Public Procurement Tribunal with adjudicative powers. We argue the draft Bill should be amended to empower and incentivise whistle-blowers through a qui tam mechanism. In this anti-fraud me...

The dynamics of the contemporary South African legal profession have many roots in the events of the last 30 years. These were momentous times – from the 1980s state of emergency through the transition from apartheid to the constitutional democracy of the 1990s and then to the decidedly more uncertain present. To a large extent, the last three deca...

This chapter explores the place of corruption, and the regulatory responses to it, in a particular sector of the South African state and society—social grant payments to the poor, disabled, and elderly. To what extent is this sector susceptible to corruption, and to what extent is there the capacity to combat it? The chapter centres around what has...

The dynamics of the contemporary South African legal profession have many roots in the events of the last 30 years. These were momentous times -- from the 1980s state of emergency through the transition from apartheid to the constitutional democracy of the 1990s and then to the decidedly more uncertain present. To a large extent, the last three dec...

Access to justice is not a reality for most South Africans. While it is not the only factor, a significant part of this situation is due to the high cost of legal services. This article outlines and justifies a research method to assess legal costs for the South African and other populations. The proposed research method divides the population into...

As South Africa contemplates another episode of public procurement legal reform, we trace the post-apartheid history of such efforts and consider critical issues moving forward. South Africa has over the last few decades followed the international trend of an expanding ‘contract state’. Public procurement is increasingly important to state operatio...

This volume locates the international debates on competition and corporate power in the critical issue of inclusive growth, which has become an important policy goal for the economies of southern and eastern Africa. As such, the concept and its implementation and development require and deserve rigorous and empirically based investigation and analy...

This chapter presents information and analysis of a number of issues that are relevant to the formulation of competition policy for the Tripartite Free Trade Area (TFTA),1 which could prove helpful when a state or state agency is formulating its negotiating position. After this introduction, this chapter addresses the question of cross- border harm...

In modern scholarship, the analysis and use of the term ‘citizenship’ takes many forms and engages many disciplines and intellectual traditions. Ngcobo CJ has been at the centre of a fundamental debate over the meaning of citizenship that has developed in South Africa’s post-apartheid constitutional democracy. Drawing on previous research, the arti...

Jonathan Klaaren blends legal and social history in this engaging account of early conceptions of South African citizenship. He argues that distinctively South African notions of citizenship and nationality come out of the period 1897 to 1937, through legislation and official practices employing the key concept of ‘prohibited immigrant’ and seeking...

The period since the early 1990s has seen the emergence and consolidation of competition and regulation authorities in a number of countries across the African continent. This volume aims to play a role in critically analysing key competition issues and considering the interface of competition and a range of economic policy questions. The papers we...

Human rights can be viewed from legal and sociolegal perspectives. From a legal perspective, human rights are the rights derived from the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and other human rights instruments; they are...

This paper investigates the three key legislative regimes posing problematic issues for ‘open democracy’ around national security in South Africa: (1) the information classification regime – the Protection of Information Act 84 of 1982 and its intended replacement, the Protection of State Information Bill/Act, (2) the regime allowing for the actual...

This article argues that judicial and other institutions concerned with legal interpretation are playing an increasing role in regulating and defining the concept of national security for South Africa, particularly in the realm of national security information. Part I surveys the post-apartheid evolution of accountability of South Africa’s national...

This keynote address at the Third Colloquium of the Constitutional Justice Project held at the HSRC on 4 June 2015 covers three topics: it first briefly recounts the history of this South African government funded research project on the impact of court decisions and other matters, it surveys the main findings to date of the research project, and i...

By contrast with the judges and the advocates, the issue of race and gender representivity in the attorneys segment of the legal profession generally and in large corporate law firms specifically has not received significant attention, in part due to the lack of accurate statistics and a thin research tradition. Addressing the gap, a 2013 survey in...

The ongoing debate and consideration of the Protection of State Information Bill (often termed the ‘Secrecy’ Bill or Act) has provided a true test for the postapartheid South African democracy. Using a case study of that legislation’s period of consideration over more than six years, this paper will propose three ways in which the Bill tested democ...

This paper investigates the three key legislative regimes posing problematic issues for ‘open democracy’ around national security in South Africa: (1) the information classification regime – the Protection of Information Act 84 of 1982 and its intended replacement, the Protection of State Information Bill/Act, (2) the regime allowing for the actual...

This paper explores three South African debates over the past twenty years to outline an interdisciplinary perspective on South African constitutionalism. Two of these debates were set firmly within law, the third less so. The first two debates took place within the explicit formal framework of administrative law, although the application of that v...

The need for individuals to seek asylum outside their country of nationality or habitual residence is not a new phenomenon; rather, refugees have been recognised as such at least since the Treaty of Westphalia established the modern state system in 1648. However, it was not until the early part of the twentieth century, which witnessed a series of...

This chapter reflects on two instances of contested openness occurring in the course of the recent saga involving Hlophe JP and the judges of the Constitutional Court (CC). While both gripping and significant, that broad and significant story itself is not the focus here. Instead, this work will examine two specific events within that larger narrat...

Intro: The Constitution of the Republic of South Africa, 1996 has been aptly termed a transformative one, a framework for the large-scale transformation of the South African society through law. Reflecting in 2011 on nearly two decades of legal reform in South Africa, much preceded by public interest litigation, we can conclude that many changes ha...

The formation of South African citizenship between 1897 and 1937 may be explained through the process of bureaucratic regulation of the mobility of three populations: European, African, and Asian. The origins of South African laws of immigration and nationality are found in this period. Identifying first the baseline concept of South African citize...

The Nicholson judgment was clearly a precipitating factor in the resignation of former South African President Thabo Mbeki in 2008. Engaging with the judgment in its own terms, this note first puts forward a best legal interpretation of the judgment, covering the doctrines of prosecutorial independence and legitimate expectations. It then identifie...

The South African concept of constitutional citizenship draws on national and African traditions in addition to its firm grounding in international law. Furthermore, as drafted, it crystallizes the potential to ground national citizenship within a global order. This potential remains apparent in the interpretations of constitutional citizenship off...

The inauguration of the right of access to information in the South African legal system itself took place at the intersection of international and national law. In its Certification case, the Constitutional Court of South Africa examined the position of the right of access to information and noted that ‘freedom of information [was] not a “universa...

On 4 December 2008, the Gauteng Provincial Legislature (GPL) voted to approve the Gauteng Scrutiny of Subordinate Legislation Act 5 of 2008. In doing so nearly 12 years after the promulgation of the Constitution of the Republic of South Africa, 1996 and 15 years after the adoption of the breakwater Declaration, Gauteng became the first democratic l...

This paper reflects upon the decision of the Constitutional Court of South Africa in the matter of Independent Newspapers v Minister for Intelligence Services (In re: Masetlha), both on its own terms and within the contexts of questions regarding the interface of national security and openness and transparency. The paper also covers the Protection...

Divided into three thematic parts to guide the reader, this important volume documents the development and implementation of refugee policy in South Africa over a 10-year period from 1996 until 2006. In doing so, it addresses issues of detention, gender, children and health as well as welfare policies for refugees. The contributions, all written by...

This chapter does not write the legislative history of the Refugees Act 130 of 1998 but rather a legislative history. The scope of this chapter extends only to relatively formal developments, such as the drafting of legislation and official policy documents, although we have supplemented these with other background materials as available. We argue...

This chapter critically investigates the South African procedures for determining refugee status that were in force from 1994 until the 1 April 2000 implementation of refugee legislation, as well as the intended changes to these procedures introduced by the Refugees Act 130 of 1998. After a brief historical overview of its development, Part I sets...

Reflecting on refugee protection in a not so newly democratic South Africa in 2006, fully ten years after the adoption of the 1996 Constitution – this concluding chapter discerns a number of refugee protection issues with current and pressing significance relating to local government and refugee protection, around the concept of irregular migration...

This chapter analyzes the South African (in)experience with vetting practices during the transition from apartheid to constitutional democracy over the years from 1990 to 1996. It argues that there was no institutional practice of vetting in the South African transition —although there were certain events akin to vetting, such as the operation of t...

While this chapter focuses primarily on constitutional issues that engage just administrative action (FC s 33), this limited exercise will inevitably require a detailed discussion of the provisions of the Promotion of Administrative Justice Act (‘PAJA’). PAJA is, in practice, the primary tool for FC s 33’s enforcement. We begin by analysing the rel...

The aim of this chapter is to assess the right of access to information ten years after its appearance in a SouthAfrican Bill of Rights. Alongside freedom of expression and of political rights, this chapter aims to critically review the extent to which we have succeeded in establishing a culture of human rights in the first decade of constitutional...

This article takes a "second look" at the place of the South African Human Rights Commission and its role in the promotion of socioeconomic rights through monitoring. It argues that a "first look" at understanding drew heavily on international concepts of monitoring, including those of violations and progressive realization. These concepts have pro...