Browsing by Author "Ally, Nurina"

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    A critical analysis of the Delay Rule in South African Administrative Law post State Information Technology Agency Soc Limited v Gijima Holdings (PTY) Limited
    (2022) Basini-Gxokonyeka, Nosicelo Natasha; Ally, Nurina
    The State Information Technology Agency's (SOC) Limited v Gijima Holdings (Pty) Ltd was seminal in establishing that the Promotion of Administrative Justice Act, 2000 is not available to an organ of state wishing to set aside its own decision while acting in its own interest. The case is also significant for the impact it has had on the delay rule. This paper identifies a problem presented by what will be referred to as the Gijima principle. The principle suggests that a court may be required to declare a decision unconstitutional in accordance with section 172(1)(a) of the Constitution even if there is no basis for overlooking the unreasonableness of the delay. This paper considers the impact of the Gijima judgement on the delay rule and the continued relevance of the delay rule in administrative law post- Gijima. It will be argued that there are three major challenges this principle poses to the rule of law namely, it promotes arbitrary and opportunistic self-serving reviews by state officials. Secondly, it indirectly promotes disregard of public procurement laws by making it easy for organs of state to undo their decisions. Lastly, it undermines the finality and certainty of decisions, which have the potential to deter prospective suppliers from contracting with the state. This paper critically assesses trends emerging from lower courts in response to the Gijima principle and provides recommendations as to how some of the issues raised by the judgment's approach may be rectified. Overall, I argue that the Gijima principle effectively eradicates the delay rule and that there is a need for continued relevance of the rule in administrative law. The Constitutional Court needs to strike a balance between preserving the delay rule on the one hand and exercising its prerogative to develop the common law on the other.
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    A critical reflection on the judgement of the federal constitutional court of Germany on the European central bank's public sector purchase programme: ultra vires review and the primacy of European Law
    (2022) Rademann, Philipp; Ally, Nurina
    The financial politics of the European Union (EU) have been highly debated ever since the 2008 crisis, which left some European countries in financial turmoil. One part of the European financial policy has been the purchase of government bonds through the European Central Bank. The most vocal critics of this policy have for a long time emerged from Europe's biggest economy – Germany. A case against the purchase of government bonds was eventually brought to the Federal Constitutional Court of Germany (FCC). The FCC referred the matter to the European Court of Justice, which in 2018 upheld the practice and found it legal. In May of 2020 the FCC went against the European Court of Justice and pronounced the practice of purchasing government bonds as well as the decision upholding it to be ultra vires. Although there have been other domestic courts within the EU that have overruled EU law, last years's verdict was unique in its blatant defiance of the European institutions and the primacy of EU Law. This paper analyses the two judgements with a focus on the issues of the ultra vires review as well as the primacy of EU law. By scrutinising the FCC's case law on the issue, the author argues that the FCC's judgement is inconsistent with its own jurisprudence, and the case substantially unsuited and unwisely chosen for rendering the ultra vires verdict for the first time. Moreover, the judgement completely disregards the primacy of EU law, which not only questions the equality of EU Members but ultimately jeopardises one of the most crucial principles of the Union.
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    Realising the Right to Education for Children with Disabilities: A Critical Assessment of South Africa's Legislative and Policy Framework
    (2022) Muhwava, Eldonna; Ally, Nurina
    Under Apartheid children with disabilities were systematically excluded from the education system. With the dawn of democracy, the Constitution of the Republic of South Africa guaranteed the right to basic education for everyone. The Preamble of the South African Schools Act went further by recognising the importance of creating an education system that could remedy past injustices and provide high-quality education for all. Yet despite these guarantees, South Africa has failed to realise the right to education for children with disabilities. Today, a considerable portion of children who are out of school consists of children with disabilities. This paper critically assesses the ability of South Africa's current legislative and policy framework to realise the right to education for children with disabilities. It considers South Africa's international law obligations concerning education provision. It further considers South Africa's domestic legal and policy framework by taking an in-depth look at the effectiveness of various education legislation, policies, guidelines, and plans of action. This paper argues that the current legislative and policy framework is insufficient to realise the right to education for children with disabilities. It further argues that a comprehensive legislative and policy framework is a key first step to realising this right.
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    To what extent does South Africa s legal framework effectively combat child trafficking and comply with international law obligations?
    (2024) Ertekin, Nesrin; Ally, Nurina
    This thesis conducts a comprehensive critical analysis of South Africa's legislative and policy measures aimed at combatting child trafficking. It commences by presenting and critically examining the international definition of trafficking arising from the Palermo Protocol while also investigating the causes of trafficking. Subsequently, it delves into identifying and exploring South Africa's legal obligations, especially concerning children, as outlined in international and regional treaties. These obligations encompass a multifaceted commitment, including the duty to prevent trafficking, prosecute offenders, and ensure the protection of trafficking victims. Building upon this framework, the thesis critically evaluates South Africa's legal response primarily focusing on the Prevention and Combating of Trafficking in Persons (TIP) Act (7 of 2013) in light of these obligations. Furthermore, it assesses the implementation and effectiveness of the TIP Act. Ultimately, the thesis reaches a nuanced conclusion. It acknowledges that despite some deficiencies in the TIP Act, particularly regarding child trafficking, the legislation predominantly aligns with international and regional standards. However, its effectiveness is hindered by shortcomings in implementation, significantly undermining the TIP Act's potential to combat trafficking comprehensively. In conclusion, the thesis presents recommendations aimed at more effectively combating child trafficking.