Bitcoin, created by Satoshi Nakamoto, came into existence in 2008. Bitcoin is a virtual currency that has gained popularity worldwide, including in South Africa. It can be used as money or a means of payment or can be kept as an asset. For many years, virtual currencies operated free from legal regulations. Its decentralised network offers its users confidentiality because no-one can link any Bitcoin transaction to any user. This research study investigated the South African Taxation treatment of Bitcoin transactions. It also investigated the taxation legislation for Bitcoin transactions of the three countries selected for this study which are Canada, the United States of America and Australia, in order to establish best-practices that can be applied in South Africa. Bitcoin transactions can come into existence from the process of mining; obtained from barter transactions; and when purchased from Bitcoin vendors through the exchange of countries’ fiat money for Bitcoin, thus attracting taxation implications. The first research question was: What are the tax consequences of Bitcoin transactions in South Africa? This study found the following: the South African Revenue Service, cryptocurrencies are considered assets. The amount received or accumulated as per classification of gross income can be calculated using the value of cryptocurrencies. Cryptocurrency transactions can generate revenue that is subject to gross income taxation. The recipient taxpayer must include as gross income the value in South African Rands of a cryptocurrency, paid or accrued to him or her as contemplated in the definition of "revenue asset". It may be considered trading stock to receive Bitcoin with the intention of trading it for goods and services. Research Question Two was: What are the regulations governing, and tax treatment of, Bitcoin in selected countries? The findings can be summarised as follows: The United States of America (USA), Australia and Canada are clear that virtual currencies are not a legal currency and therefore cannot be classified as currency. Canada classifies virtual currencies as a commodity for taxation purposes. The USA and Canada have classified Bitcoin as property and intangible property respectively, which is similar to the approach in South Africa. The definition of a currency for all four countries is similar in the sense that there needs to be physical cash for the amount to be included as gross income for taxation purposes. Moreover, if Bitcoins are acquired with the aim of reselling or investment, Capital Gains Tax comes into play. None of the three nations' definitions of currency apply to virtual currencies. Research Question Three was: What is the difference or similarities between South African income tax consequences of Bitcoin and that of the three jurisdictions chosen for this study? The below is a summary of the results: South Africa, USA, Australia, Canada (specific that virtual currencies are not a legal tender and hence cannot be recognized as currency) Canada Taxes Crypto as a Commodity Bitcoin is labelled property by the USA and intangible property by Canada. This classification attracts Capital gains taxation, which is a similar approach to South Africa. All four nations have comparable definitions of currency, meaning that for an amount to be considered gross income for taxes reasons, actual cash must be present. Consequently, none of the four nations' definitions of currency apply to virtual currencies. Last but not least, virtual currencies are categorised as crypto assets since South Africa's asset definition encompasses assets of any kind, whether tangible or intangible. Virtual currencies were also categorised as commodities or property in Canada. The study recommends on how South Africa might enhance its current tax laws pertaining to Bitcoin transactions. The study also suggests future research that can serve as an extension of this study
Our understanding of contracts continues to evolve. Electronic contracts that have typically taken the form of shrink-wrap, click-wrap, web-wrap, scroll-wrap, multi-wrap and sign-in-wrap agreements have undergone further developments with the introduction of automation in electronic contractual engagements and, more recently, the advent of the so-called "smart contract". Different types of smart contracts exist, including smart contracts that operate on blockchain technology. Despite these developments in commercial and contractual activities, the South African legal framework does not officially recognise smart contracts. The use of the Electronic Communications and Transactions Act, 2002 (ECTA) as a mechanism for the regulatory oversight of smart contracts in South Africa is, in its current form, woefully inadequate and limited in its application to smart contracts. Other jurisdictions, like the European Union (EU), have passed draft legislative and regulatory documentation called the Data Act to address smart contracts, whilst the UK Law Commission has provided recommendations to regulate smart contracts. As South Africa currently has no equivalent to the EU's draft Data Act and has not considered the operation of smart contracts in South Africa, the position in the EU and United Kingdom (UK) is considered in this paper to provide guidelines as to the aspects that it would be necessary to regulate in a South African context.
The concern of this paper is to examine the central-local government relations and the extent and the manner in which this relation undermines or promoted the local government autonomy in Tanzania. Nevertheless, the knowledge about the effect of central-local government relation on local government autonomy and education service management is sparse. The central government is responsible for provision of public services such as education and healthcare because the central government cannot perform each function given the wide jurisdiction. This work was guided by the following research objectives: A) to examine the extent in which central-local government relations undermine local government autonomy. B) to explore the power of the local councils to hire and fire staff under central-local relation management. C) to explore the effect of central-local relations on service delivery management in Local Government authorities. The paper used a case study design with a sample of 40 respondents elected using purposive sampling. The method of data collection was interview and documentary review and the data were analyzed using thematic data analysis and descriptive statistics. The findings indicate that the failure of Local Governments Authorities in Tanzania in provision of services depends partly on the central-local relations in terms of central government interference which undermine local government autonomy, the structure of local government revenue is weak, institutional capacity of the Local Government Authorities, and modalities in place for the public services that the central government directly provides at the local level. The paper recommends that local government finance and administrative autonomy should be strengthened by Enshrining Decentralization by Devolution (D by D) in National Constitution.
Decentralized finance (DeFi) represents a specific application of crypto-asset technology that has made significant advancements in adoption. While academic tax literature has focused on basic crypto-asset transactions, the tax consequences of DeFi transactions have been much less frequently explored. This study considers whether income or expenditure arising in specific DeFi transactions might be classified as interest in terms of South African income tax legislation as well as within the international tax context. Classification as interest has significant implications. Within South African domestic legislation, it impacts the determination of source, quantification of amounts, timing of recognition, application of exemptions, and imposition of withholding tax. Internationally, it has implications for the determination of jurisdictional taxing rights under double tax agreements. This study proposes that, while historically, interest may have been thought of exclusively as arising in the context of monetary debt, this is not a definitive characteristic of interest. Rather, interest represents remuneration for the provision of capital in the form of a loan principal with a contractual right to repayment. Whether each of these elements is present in the cases of the identified DeFi transactions is inconclusive. The study therefore recommends the provision of guidance to taxpayers by South Africa and other jurisdictions, and supports a coordinated approach among jurisdictions in the determination of income tax outcomes.
Section 1(a) of the Constitution of the Republic of South Africa, 1996 stipulates that human dignity, the achievement of equality and the advancement of human rights and freedoms are foundational values of South Africa’s sovereign, democratic state. Aligned herewith is s 39(1) of the Constitution, which directs that every interpretation of the Bill of Rights must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. Therefore, the Constitution’s human rights ethos, culture and spirit is a dominant theme serving as a guide when the term ‘property’ is interpreted in the context of the privacy clause (s 14(b)) and the property clause (s 25). This article argues that by applying a purposive cum contextual cum grammatical cum teleological interpretive methodology, the concept ‘property’ in ss 14(b) and 25(1) of the Constitution goes beyond the conventional ambit of common-law property. It is argued that, for constitutional purposes during tax administration, property also encompasses intangible property in the form of Bitcoin and possibly other cryptocurrencies owned by taxpayers, which represent legal interests worthy of constitutional protection during tax administration by the South African Revenue Service.
У статті розглянуто особливості фінансової децентралізації в Україні. Досліджено повноваження отримані органами місцевого самоврядування для надання якісних та доступних суспільних послуг громадянам. Також, охарактеризовано відповідальність органів місцевого самоврядування перед виборцями – за ефективність своєї роботи, а перед державою – за її законність. Крім того, досліджено основні джерела ресурсів об’єднаних територіальних громад та проведено групування за критеріями їх сутності та ролі у формуванні конкурентних переваг. Проаналізовано фінансову спроможність громад. Визначено, інші інструменти забезпечення економічного розвитку громади, зокрема, здійснення зовнішніх запозичень, самостійне обрання установ з обслуговування коштів місцевих бюджетів відносно розвитку та власних надходжень бюджетних установ, сформовано теоретико-методологічні положення, які можуть бути покладені в основу сучасної системи управління ресурсоефективністю територіальних громад. Доведено, що добровільно об’єднані територіальні громади мають усі можливості й ресурси для повноцінного функціонування та розвитку. Сьогодні органи місцевої влади беруть на себе цілковиту відповідальність за всі сфери життя на власних територіях, що і є показником успішної й доцільної діяльності ОТГ. Визначено, що за умови добросовісного виконання зобов’язань, підвищується ефективність використання бюджетних коштів, а це – прямий і правильний шлях до стабілізації соціально-економічної ситуації в усій країні. Визначено проблеми з якими стикаються місцеві органи влади на шляху до децентралізації. Проведено аналіз видаткових повноважень органів місцевого самоврядування у сучасних реаліях.
Niels Peterson’s Proportionality and Judicial Activism is a very timely and accomplished book. It is an important addition to the now quite considerable literature on proportionality, and it would benefit anyone interested in this omnipresent doctrine, especially in the three jurisdictions it covers—Germany, Canada, and South Africa. The book is not too long, and extremely readable—two non-negligible advantages for any reader—and Peterson has a rare capacity of simplifying intricate analytical moves and theoretical constructs without losing accuracy, a talent he also applies to the many cases he reviews in the book. The book is also innovative and ambitious, making it a very interesting and enriching read. However, its innovation sometimes comes at the expense of accuracy and consistency, and the book could have benefited from framing its goals a bit more modestly. At the center of the book is the following bold thesis: proportionality and balancing, while giving judges considerable discretion, do not, as a matter of empirical fact, bring them to usurp that discretion and engage in judicial activism and self-empowerment. The reason, according to the book, is that judges fear losing public legitimacy—the main source of their power—and therefore limit the use of proportionality, by and large, to the realm in which judicial review is legitimate. This realm, according to the book, is defined based on John Hart Ely’s process theory, and is thus the correction of political democratic market failures. The book reviews what it takes to be all the relevant proportionality cases in three key jurisdictions—Germany, Canada, and South Africa—and classifies them according to criteria developed by the author, showing that most proportionality cases fall into the non-activist rather than the activist camp. In this review I will give a brief account of the main arguments in the book, commenting on them as I go along, and then make the following main claim: the book does not fully achieve what it claims to do—prove empirically that proportionality and balancing are not related to judicial activism. The way the research is framed, I would argue, does not fit the purpose for which it is devised and has some internal tensions and key methodological problems. However, many of the contributions of the book are to be found in the details and on the way to the conclusions, rather than in the conclusions themselves. In particular, to my mind, its greatest achievement is in its classification method, which shows that when judges use the heading of proportionality they do myriad different things, many of which do not include engaging directly with the content or importance of rights, and, I would argue, resemble the functions of an administrative court. Elsewhere I called this phenomenon, the administrization of constitutional law.1 Whether these judicial interventions amount to judicial activism or not, and under what theory of judicial review they can be justified, is not resolved by the book. But, the in-depth analysis of the cases in the book and its novel classification system show that proportionality is more complex than its four simple subtests suggest, and this must inform any debate about proportionality and activism. In the first chapter Petersen develops a sophisticated and well-argued-for theory of judicial activism. According to Petersen, “[t]he question of whether courts acted in an activist manner depends on whether they were in line with the role that they are supposed to play in a liberal democratic political system” (at 15). It would depend, therefore, on our theory of judicial review. Petersen chooses a theory based on John Hart Ely’s process theory, according to which courts should not intervene in the substance of the democratic game—value choices should be left to democratic majorities—but rather correct market failures in the democratic process, and, like a referee, make sure that the players adhere to the rules of the democratic game and not rig it in unfair ways. Courts should therefore protect “discrete and insular minorities” against majoritarian bias, and rights related to the democratic process such as free speech and voting rights.2 Petersen extends Ely’s theory especially by including also the protection against legislative capture by interest groups and lobbyists (at 26–27). The chapter is masterfully written, and the exposition of market-failure-based accounts is excellent. Relating activism to one’s theory of judicial review is a novel and unconventional approach, and it strikes at a soft spot of definitions of activism that view it as an unwarranted departure from the law.3 Such definitions must rely on a theory of judicial review to define what the law is but do not always acknowledge that. However, since Petersen’s definition of activism is strictly normative, it departs from the common use of the term, which also has a contextual and descriptive element—activism is usually assessed in relation to a certain norm for judicial intervention prevalent in the relevant society, and thus cannot be defined solely in normative and non-contextual terms.4 Choosing Ely’s process theory is also novel and unconventional, coming from a German scholar, as German constitutional jurisprudence is emphatically substantive, and talks freely about judges as safeguarding an “objective value order,”5 while rejecting as overly American perceptions of judges as mere referees.6 It is especially a novel choice to support proportionality and balancing, as these are justified precisely for the type of jurisprudence which engages with values, and therefore must resort to balancing when such values conflict.7 If successful this choice could show that proportionality is justified even within a theory that emphasizes judicial restraint, which would be a counterintuitive, and therefore important, finding. However, squaring actual proportionality jurisprudence with Ely is a tough job, and as I will argue, the actual review of the cases by Petersen does not quite do that, and uses another definition of non-activism instead. In the second chapter Petersen delves with impressive skill into the analytically complex and abstract debate on balancing, incommensurability, and indeterminacy—the accusation that balancing compares things with no common denominator (e.g., the right to free speech and the interest in public security) so that it lacks rational content, and is therefore indeterminate and does not constrain judicial discretion. This chapter too is masterfully written, and Petersen convincingly shows the flaws in several key attempts to claim that balancing can escape this critique. However, the conclusions drawn from this realization are less convincing to my mind and do not appreciate the full force of the critique. Petersen is comforted by the fact that other methods, such as categorical rules, also suffer from indeterminacy, and thinks the choice of proportionality can be justified as a policy choice that prefers standards over rules (trading certainty for more flexibility to adjust to the particularities of the case) and more rather than less judicial control over the legislature (at 58). However, rules (unless one adopts full rule-skepticism) are only partially indeterminate—in the “hard” cases, or in the “penumbra”8 —while balancing, if it amounts to comparing the uncomparable, seems completely indeterminate; it is not clear what content it has at all, and what direction, however little, it can give to judges, if it suffers from the problem of incommensurability. Second, if balancing gives little or no guidance to judges, the problem is not just a policy problem of trading certainty with accuracy; in constitutional law, it is a political problem of accountability and representation. Finally, the idea that less guidance to judges means more control of the legislature is based on the assumption that judges, given discretion, would use it primarily to control the legislature rather than capitulate to it. If this is not correct, rules might actually control the legislature more than balancing.9 Having defined activism, and concluded that proportionality allows for judicial discretion, Petersen proceeds, in the last four chapters (chs. 3–6), to the heart of the book—the empirical analysis which aims to show that despite its open-endedness, proportionality does not lead to activism. I will briefly survey here the design and finding of the research and elaborate more in the next part. The survey consists of reviewing 250 German cases, 67 Canadian cases, and 44 South African cases, each analyzed according to roughly 10 criteria, depending on the jurisdiction (tables at 84–86). These include the four subtests of proportionality: illegitimate purpose, rationality (means fit ends) and necessity (no less restrictive means) joined together, and balancing (benefits outweigh costs); in addition, there are several other criteria, some of which are the author’s own, that will be discussed later. Each case is categorized under one or more of these headings, depending on criteria set by the author. The pool of cases reviewed consists of only (and all) cases in which the court struck down legislation, and the review period begins, for each jurisdiction, roughly since proportionality review was introduced to the system. The author then analyzes the results looking especially at the use of the fourth test of proportionality—balancing—which is the only test to directly and explicitly engage in comparing and making trade-offs between rights and interests, and is thus taken to be the main indicator for judicial activism. The first finding is that the use of balancing in both Canada and South Africa is consistently modest and stands below 10 percent of all proportionality cases reviewed (except for an increase in Canada toward the end of the survey); in Germany, balancing’s use was modest in the early years but rose dramatically in the 1970s and has plateaued since at around 30 percent (graph at 82). These findings are interpreted to support two theses by the author: (i) that the use of proportionality does not bring about judicial activism (since most proportionality cases do not include balancing); (ii) that the reason for that is that courts are subject to institutional constraints—they will lose public legitimacy if they are too activist. This explains why there is little balancing in Canada and South Africa, where the Court has not earned full legitimacy yet, and why as the German Court earned more legitimacy (and maybe the Canadian Court also in recent years), it increased its use of balancing. The last chapter analyzes only balancing cases, and shows that even these cases, most of the time, are not “real” balancing cases, in the sense of directly balancing rights and public interests, and only few cases can be so identified. Does the research as just described achieve its purported goal: to show empirically that “all three examined courts refrain from using proportionality for purposes of judicial activism” (back cover)? I believe it does not. The reason is a mix of methodological problems and inconsistencies in the design and execution of the research. As far as I can tell, the only quantifiable empirical proof to show that in all three jurisdictions the use of proportionality is not activist is the low level of balancing cases in those jurisdictions summarized in the graph at 81. There are, however, several problems regarding this deduction. The first relates to what it is exactly that the author means by a balancing case. In Canada it means that the Court formally relied on the fourth, balancing, subtest of proportionality in its reasoning. However, in Canada, as Petersen acknowledges, there is a doctrinal aversion to the use of that test, so that not using balancing formally does not mean that substantively the reasoning is not based on balancing.10 What we can learn from this data pertains therefore only to the perception of activism—does the Court wish to appear activist or not (assuming that balancing sends an activist signal). It cannot tell us whether the decisions themselves are activist, since balancing can lurk below the surface. In South Africa and Germany, however, courts do not always distinguish between the four subtests of proportionality (in South Africa not at all) and when they do not, a balancing case would mean what Petersen, rather than the Court, takes to be a balancing case. Petersen identifies balancing cases based on two criteria he devises—that the reasoning includes a comparison of values, and that there are no alternative modes of reasoning that are factual or empirical, and thus indicate the use of the rationality and necessity subtests (at 73). I think these are reasonable criteria, but I would like to note two problems: first, this means that counting for a balancing case would mean different things in different cases (for some cases formal, for some substantive); second, when we move away from formal reasoning, which can be relatively objectively measured, we get into the realm of subjective assessment of the surveyor—what if, for example, there is comparison of values, but also some, but not much, reliance on factual factors and policy efficacy?—and thus the findings do not have the strength of more objectively verified data. Another problem is revealed once we look at the finding on Germany which cannot indicate a similarly low percentage of balancing cases, as in Canada and South Africa. Over the entire period surveyed, 24 percent of the cases are labeled balancing cases, and in some decades as much as 37 percent. The problem now becomes knowing what percentage counts as proof of activism or lack thereof. If Canada and South Africa are labeled not activist based on less than 10 percent balancing, does that mean that Germany should be labeled activist, or is a maximum of 37 percent still low and therefore it is not? We cannot tell since there is no criteria set for answering this question in the book. One could assume at least that this data would indicate that Germany is more activist than Canada and South Africa, but this conclusion too is not reached in the book. Instead, when we move to Germany the proof of lack of activism becomes not the actual percentage of balancing cases but the fact that this percentage was low in the early years of the Court and rose in the 1970s. This, the book argues, indicates that the use of balancing is dependent on, and thus regulated by, the threat of losing public legitimacy. As the German Court acquired more public legitimacy in the 1970s it could afford to use balancing more. In South Africa and Canada this has not happened yet, or at least not to the same extent, so balancing has remained low. But if this is now the claim, then the book has not established that proportionality would not bring about activism, only that it would not bring about activism as long as the Court does not acquire sufficient public legitimacy. And, in addition, Petersen has not shown but has only speculated that the fear of loss of legitimacy is at play—other explanations are readily available to explain the differences between the use of balancing in these countries, such as the formalist common law tradition in South Africa versus the more substantive and communitarian tradition of German jurisprudence.11 There are several other methodological as well as substantive problems that I will indicate only briefly. First, the case selection is based only on cases in which the Court overturned legislation; however, some of the seminal proportionality cases, such as Kiegsra12 in Canada, and some of the most activist proportionality cases, such as Mizrahi13 in Israel, are upholding cases. Secondly, the pool of reviewed cases in Canada and South Africa is very small, spanning between 10 and 27 cases per decade. For such a small pool, any slight change in categorization can dramatically affect the results, and Petersen does not provide us with statistical assurances that his sample is big enough for empirical conclusions. Thirdly, and substantively, the book jumps very quickly to the conclusion that balancing is the right, and only, indication of activism in the use of proportionality. This does not follow from the book’s own definition of activism as going beyond correcting Ely-type market failures, as the other tests of proportionality may also amount to non-market failure interventions, and as balancing can be used to correct market failure. The research therefore suffers from several key problems if it aims to provide hard empirical proof. However, maybe we should view it differently, as a heuristic on a large scale, or as straddling the space between qualitative/small N, and quantitative/big N research. As such, its assessment changes dramatic- ally, and I think it shows clever and sophisticated analysis and can provide us with very important and valuable findings, especially pertaining to what I have called the “administrization” of constitutional law.14 The book’s most interesting and important achievement, to my mind, is its scheme of categorization for proportionality cases. What is unique about it, is that it is not limited to the four subtests, usually associated with proportionality but adds several additional key doctrinal tests, used by courts in such cases. I would like to highlight the following tests: consistency and coherency—looking for inconsistencies within legislation or between different acts of legislation; protecting legitimate expectations—such as when a new law changes the regulatory regime without providing for a transition period for those that relied on the previous regime; procedural arguments—lack of administrative review mechanism, or mechanisms for hearing, in the implementation of the law, or even procedural flaws in the process of legislation itself; lack of determinacy of the legislative norm; and overbreadth (note that in describing these tests I have not mentioned the word “rights” even once). Petersen then goes on and reviews many key cases in all three jurisdictions to explain his categorization of them under these different headings, and does so, on the whole, convincingly and informatively. He also provides a helpful list of all the cases reviewed in the Appendix. Analyzing the cases under these headings, and also under the formal subtests of proportionality, shows that the Court is often engaged in what Petersen the review of the of legislation, and what I would the tests of administrative law to I have that in jurisdictions courts are not engaged primarily with the and of the rights in the do they even a constitutional for legitimacy they administrative law, and of law, to legislation, the same way an administrative court would do to decisions and This also from the of by such which are taken from administrative the to the legislature to correct procedural directly certain changes in legislation, judicial review following legislation over in a and so Petersen provides in his book a and sophisticated account of this phenomenon, and he is correct in our to it as he in his that courts look for flaws in legislation is however, than showing that they have not engaged in judicial activism, especially if we define activism according to Ely’s theory of judicial review. The way I Ely’s theory, it would to be and as long as they are not by for example, the reviewed in the book (at in which the German Court struck down a law that limited the of new in where there is an The Court based its on rejecting the empirical for the legislation according to which there was no for in the relevant Such a case would not fit Ely’s of judicial review. It is not a case of and insular of political that it is a case of of is in this as there was no for that, and, in any Ely this of his theory and it from a not to the rationality of a law that between and Ely usually cannot (and should not when they do the to which of the legislature are under the of but they can tell when a legislature is Petersen’s book therefore on a more of the judicial role than market and cannot rely on this to show that proportionality is not activist. is not a market failure. It and there is no in it that the free democratic However, our to rationality or what I called administrative review of legislation, the debate over activism and proportionality by describing what is at with to proportionality cases, and it does show that proportionality is not just about balancing. This about a last courts not the and four subtests of proportionality and the jurisprudence of law review they engage would be to use Petersen’s book as an for just that.
ENGLISH SUMMARY : Procurement has been designed to redress some of the imbalances of the past; however, this policy instrument is being abused in some institutions around the country. This abuse has caught the eye of the Minister of Finance who, a few years ago, appointed a Chief Procurement Officer (CPO). This office of the CPO is within the National Treasury and it is tasked with ensuring that procurement, currently known as supply chain management (SCM), is properly managed. One of the causes of deficiency within the SCM environment is decentralisation. This is a method used by various institutions, including Parliament. Decentralisation means that every office is able to procure its own goods and services. This may result in procedures not being followed properly because the people who are trained in procurement or SCM reside in the SCM office. When procedures are not followed properly, this may result in awards of bids being made incorrectly, leading to irregular expenditure and possibly qualified audit opinions. The National Treasury has established a central database for all suppliers. This may curb some of the inconsistencies currently experienced; however, each institution still procures its own goods and services. In the case of Parliament, the database is not being used yet and with programmes in place that take Parliament to the rural areas, the central database may not be efficient. This study aims to give recommendations to ensure the SCM Section is able to support Parliament in meeting its strategic objectives. The study takes into consideration the unique status of Parliament as a People's Parliament and as such it needs to put people at the centre of its operations. This study also wishes to show that as much as the SCM environment is decentralised in Parliament with the necessary controls in place, there has been an improvement in ensuring that the SCM unit is able to play its strategic support role without compromise.
Early 1990s governments across the South have embarked on democratic decentralization reforms aimed at introducing and strengthening local governance because of its assumed potential to improve the delivery of public services and alleviate poverty. To comply with that international practice, in early 2000 Tanzania government decide embarked on an ambitious Local Government Reform Program that addressed Political decentralization. Political decentralization signaled the government’s commitment to enhance the decision making authority of local government councils on matters affecting local development including determining priorities for local development, land use, finance, service delivery and human resource management. This paper sought to find out whether the selected local government council led by councilors enjoys the development planning, and service delivery authority as established in the local government law. The findings have confirmed that the case study council enjoyed modest decision making authority in the areas of local development planning, selecting local development strategy, and enjoyed even greater authority over service delivery powers.
Financing Agreement (National Decentralized Planning and Finance Project) between the Republic of Mozambique and the International Development Association (with schedules, appendix and International Development Association General Conditions for Credits and Grants, dated 1 July 2005, as amended through 15 October 2006). Maputo, 11 May 2010
Can the parties to a conctract agree that the consideration should be paid in bitcoins? Or will this obligation be qualified as the delivery of 'objects'?
Participatory Budgeting (PB) has emerged as one of the major innovations in participatory governance for local management and local democracy worldwide. With more than 3,000 experiences recorded in over forty countries, PB is gradually changing the living conditions of increasing numbers of citizens across the world. Highly heterogeneous in processes and underlying ambitions, PB in its diversity provides a challenging alternative to the New Public Management-informed route to public sector reform. In most cases, PB has positively contributed to administrative modernization and other 'good governance' imperatives, including bringing substance to decentralization policies. In its most radical incarnations, PB has moreover contributed to inversing established spatial, social and political priorities in cities, in favour of the more deprived. This working paper briefly introduces the world-wide expansion of PB and the heterogeneity of current experiences before proposing two analytical frameworks to help differentiate between them. The heterogeneity of cases reflects substantially differing logics which can be described as political (for radical democratic change), managerial and technocratic (to improve municipal finance transparency and optimize the use of public resources for citizens' benefit) or good governance driven (to improve links between the public and citizens spheres). These logics are illustrated through the examples of Rosario (Argentina), Seville (Spain), Chengdu (China), Soligen (Germany), Dondo (Mozambique) and Porto Alegre (the iconic case in Brazil). Finally, the paper closes with an assessment of PB's major contributions to democratic governance, as well as its on-going challenges and limitations to date. Specifically, we bring attention to PB's potential in reverting (political and territorial) priorities, deepening decentralisation and administrative modernisation; but also ongoing challenges in deepening the deliberative quality of PBs, citizen's education and the institutionalisation of participants' power.
Decentralization is the allocation of power between central and lower levels structures of the government. The dimensions and the extent to which powers are transferred from one level to another vary across countries depending on the goal a country wishes to achieve. But one of the common aspects included in the transfer of powers to the lower level structures is financial decentralization. The reason is clear. It makes no sense to transfer power to the lower level structures without finance to execute own decisions. Transfer of financial powers to lower level structures and creating an alignment that support efficient and effective operation of each structure, has often been one of the major challenges in the implementation of decentralization model of government. Tanzania has been one of the victims in this situation. In view of various government reports, since independent in 1961, the several attempt tried by the government to transfer powers to the lower level structures led to either little or no success. The adoption of Decentralization by Devolution (D by D) in 2000 could be considered as the government attempt to correct the existed bottlenecks that led to the failure in the previous initiatives to decentralise. This paper attempts to answer the question: ‘is financial decentralisation realised under the DbyD, and what are the factors that contribute or hamper the financial decentralisation? The paper is based on the research findings presented in Mbogela (2009). The report consisted of descriptive presentation on financial matters from four case councils namely: Mbozi District council, Mbeya City council, Mbeya District council and Morogoro Municipal council. The findings from the four cases are presented, examined and compared. Keywords: Decentralisation by devolution, financial management, Local government authorities.
Bernard Bashaasha, Margaret Najjingo Mangheni, Ephraim Nkonya
Uganda introduced the decentralization policy in 1997 under the Local Government Act of 1997 that has since undergone four amendments. The policy inherently decentralized service delivery institutions and their governance in order to improve access to services for the rural poor. Based on an analysis of available literature, the paper documents the state of knowledge regarding rural service provision in Uganda under decentralization and identifies knowledge gaps for further investigation. Its focus is on education, health, and agricultural advisory services, as well as the management of natural resources in Uganda. Although enlightening, a review of the broader decentralization literature is beyond the scope of this work. The analysis revealed that results in terms of attaining the objectives of decentralization are mixed. While as anticipated generally decentralization resulted in greater participation and control over service delivery and governance by local communities, local governments are still grappling with a range of challenges, namely, inadequate local financial resources and over-reliance on conditional central government grants; inability to attract and retain sufficient trained and experienced staff; corruption, nepotism, and elite capture. With regard to the specific services, while universal primary education (UPE) policy under the decentralization framework is credited with a dramatic increase in primary school enrollment, public primary education services are still dogged by concerns over financing, equity, quality, and the need for curriculum reform. Some studies show that there has been no improvement in health services with many health status indicators either stagnating or worsening. In general, decentralization of education and health services has not resulted in greater participation of the ordinary people and accountability of service providers to the community. Regarding agricultural extension and advisory services, except for areas serviced by NGOs, the majority of the country does not readily access extension services, because districts have been unable to prioritize the operational expenses. However, there is some evidence that the devolution of responsibility for natural resource management (NRM) has contributed to greater compliance with some NRM requirements in some areas while in other areas forest conditions have declined following decentralization. Generally, evidence on whether decentralization has improved service delivery in Uganda is still inconclusive, and more research is needed.
Kenya’s Constituency Development Fund (CDF) Act has been hailed as one of the most critical legislations and indeed one of the few landmark achievements of the ninth parliament and indeed of the NARC Government. Increasingly, however, concerns about the utilization of funds under this program are emerging. Most of them revolve around issues of allocative efficiency, rampant abuse and mismanagement in CDF operations, which has given rise to an increasing number of complaints from the public. \nHowever, while majority of CDF Committees countrywide are embroiled in acrimony and even legal battles, a few enjoy appreciation from their constituents and have even been recognized by various stakeholders for best management practices. These Committees have had excellent performances in the management of the funds towards the achievement of the intended purpose and as such have been able to attain real economic and resources decentralization. The question therefore is why some Constituencies are doing well in managing CDF. \nThe specific objective of the study was to assess the extent to which achievement of CDF objectives has been a success factor in the management of CDF in Gatanga Constituency, one of those that have been rated among the successful ones in the management of CDF. The study, which took place between June, 15 jmd July 31, 2009 adopted a cross sectional survey to meet its objectives. The population of interest was the various stakeholders in the CDF activities and the data collected was analyzed using descriptive and correlation types of data analysis. \nThe study noted that Constituents generally felt that if CDF was well managed, it would change the face of the country in terms of providing social infrastructure. The study also revealed that though majority of the constituents were generally satisfied with CDF management since it was established in the year 2004. However, management needs improvement in terms of both the projects and resources. Planning, organizing, compositions of CDF committees also require major improvement to bring about more successful completion of specific project goals and objectives. The CDF’s National Management Committee (NMC) and Ministry of Finance should also ensure committee compliance to laid out procedures for project selection. It is hoped that the findings of this study will inform national policy dialogues and reforms in the CDF management.
A hallmark of post-apartheid South Africa has been the introduction of bold and innovative policy in areas ranging from the national Constitution to resource management policy. In line with this approach, there has been a clear commitment to principles of decentralization and participatory development, with Local Economic Development (LED) featuring prominently in national, provincial and local government pronouncements and planning. Despite considerable policy and funding support for LED, results at best can be described as only modest. This paper critically reflects on the importance attached to LED in South Africa, what has been attempted over the last decade, and the various reasons that might explain the limitations experienced with applied LED, including those that are inherent in the nature of LED and those that can be attributed to local factors. The paper draws upon field-based research undertaken over more than a decade and the findings of a major study undertaken by an international development finance organization. The paper raises challenging questions about the nature, focus and potential of LED as an appropriate development intervention.
The design of any system of transfers is a complex matter, and in practice very few countries are able to get it right, especially at the start of a process of decentralized system of finance. It is quite obvious that South Africa has made great strides in the design of its transfer system, primarily comprised of: an unconditional grant distributed by formula, the “Provincial Equitable Share” (PES); a system of conditional grants; and several other non-conditional transfers. In this report we focus exclusively on the analysis of the existing PES transfer and also on possible options for its reform. Our report consists of three main parts. We first summarize the main features of the PES. We then focus on what may be lacking with the current system. We finish with options for reform.
The design of the decentralized co-operative governance system, conditioned and \nregulated by the South African constitution is of critical importance for policy design and \nimplementation. The division of powers falls within a unitary form of government. This \nstudy, which is about the processes, mechanisms and modalities of public policies \ndesign and implementation uses the public finance and health sectors, as a case study \nor lens through which policy design and implementation is examined within a \ndecentralized cooperative governance system. The study is per se not about the public \nhealth system, but rather a review and an analysis about how the decentralization and \ncooperative governance nature, practice and dynamic of government system, influences \nand condition the policy processes and practice on finance and health, separately and \ncollectively within the public health system. \nIn its attempt to unbundle the health function, but also reform the public health system, \ncentral and provincial governments have introduced a number of reforms. These reforms \nwere ostensibly driven by different policies and programmes originating either from the \npublic finance or public health sectors with significant consequences for the provinces. \nMoreover, these different policies also outlined structural and functional responsibilities \nand authority among the central and provincial government departments. The \nimplementation of these policies was at times based on different interpretations of policy \ndesign and implementation responsibilities and authority between the central and \nprovincial governments within co-operative governance system. \nThe argument of this study is that despite intentions implicit to public policy, co-operative \ngovernance system is contested at a central government level within the public health \nsystem, as well as between levels of government and the public health and finance \nsectors. This dissertation explores the nature of the relationship between the central and \nprovincial governments by exploring co-operative governance in the health sector on \npolicy and financing processes and mechanisms. The central question is how does \ndecentralized co-operative governance really work in the public health system? \nA case study method was used to conduct this research. Data was collected over a four \nand half year period using a variety of data collection methods, including semi-structured \nin-depth interviews; documents and reports analyses; policy content review and \nanalyses; and revenue and expenditure reviews and analyses. \nThe study’s findings are: \na) the functional and structural decentralization of policy-making and implementation \nwithin the co-operative governance system contributes to undermining the cooperative \ngovernance relationship between the public finance and health sector and \ncentral and provincial governments; \nb) the central government is using its overriding powers to “impose co-ordinated \nsolutions” to problems within the co-operative governance system, leading to \nsituations where ‘imposed co-ordination’ is considered as ‘co-operative governance’; \nc) the theory provides a classical distinction between state control, supervision and \ninterference models. This dissertation shows that, depending on the policy context \nand circumstances, the uniqueness of South Africa’s co-operative governance \nsystem allows the central government to mobilize any of these models to achieve its \npolicy intentions, whether written or unwritten; and \nd) the classical arguments of decentralization, particularly within a devolved system of \nco-operative governance where greater autonomy and authority are given to subnational \ngovernments, are found wanting within the South African governance \nsystem, given both the policy-making and fiscal resource strength of the central \ngovernment relative to the provinces. \nThis dissertation leads me to conclude that the South African practice of co-operative \ngovernance in the health system is actually imposed co-ordination and that provinces \nare de facto administration outposts of central government policies, programmes and \nservice delivery responsibilities. Therefore in reality there is no autonomy and \nindependence of the provinces from the central government as envisaged in the \nConstitution of the Republic of South Africa. In fact, provinces only exist, in terms of their \nconstitutional competencies as far the central government allows it to exist given its \nplenipotentiary powers over both micro and macro matters affecting institutions, fiscus \nand social policies.
ConclusionsIn Spring, negligence again presents itself as the avenue through which judges reform private law.The emphasis throughout was on negligence, although the speeches of Lords Woolf and Slynn demonstrate that contract could have provided a remedy.It is somewhat surprising that the contractual analysis did not dominate the speeches, especially since Scally indicates that the contractual analysis should be preferred in cases involving harm arising from e m p l ~y m e n t .~~ Yet only Lord Woolf held that the 'primary source of any liability is contractual rather than tortious,' since the relationship with the defendants arose from the previous engagement;55 the other Law Lords did not address the point.We might also ask what would have happened if the plaintiff had brought the action in defamation.Would their Lordships have found a remedy by reforming the law of defamation?For example, would they have held that qualified privilege should not be available to employers or, if available, it should be rebuttable by proof of carelessness rather than malice?Certainly, Derbyshire County Council v Times Newspaperss6 suggests that the House of Lords is willing to take a fresh look at the rules of defamation where political values are at stake; would it do so where more personal or commercial values are at stake?It seems doubtfuls7; perhaps the employer's qualified privilege has stood too long in a tort 'beyond the redemption of the courts'58 for the judiciary to re-examine it.59And perhaps the return of a more liberal view of negligence makes it unnecessary. Agitating for Part-Time Workers' Rights Charlotte Villiers and Fidelma White"In 1994, progress was made for part-timers in the pursuit of their rights at work.In Equal Opportunities Commission v Secretary of State for Employment,' the House of Lords, having recognised the standing of the Equal Opportunities Commission (EOC), granted a declaration that provisions of the Employment Protection (Consolidation) Act 1978 (EPCA) indirectly discriminate against women and therefore are incompatible with European Community law.This involved reversing the decisions of the Divisional Court and the Court of Appeal.This case is significant for a number of reasons.First, while the case recognises the need to protect part-time workers, the EOC was successful because it was held ~ 54 supra n 48, at pp 302-304 (per Lord Bridge).55 supra n 1, at p 390. Cf South Pacific Manufacturing Co Lid v New Zealand Security Consultants & Investigations Ltd, supra n 18, at p 297 (per Cooke P). 56 [1993] AC 534.57 But see Lord Woolf, supra n 1, at p 400: 'it by no means follows that so far as references are concerned the same view should be taken of public policy as was taken when Whiteley v A d a m was decided.' 58 Slim v Daily Telegraph Lid [1968] 2 QB 157 (per Diplock LJ).59 cf White v Jones, supra n 3, at p 216 (per Lord Mustill), and Hedley, 'Recovering Lost Legacies: White v Jones in the Lords' [1995] 1 Web JCLI: 'if we are truly convinced that the will admitted to probate does not reflect [the testator's] wishes at the time of his death, why admit it to probate at all?'
Abstract Since Botswana became independent in 1966 a steady process of decentralization has been undertaken by a Botswana Democratic Party (BDP) government confident in its own legitimacy and committed officially to a policy of rural development. In 1978 the President appointed a Local Government Structure Commission to test the suitability of the existing structure and to advise on the relationship between the four main institutions at district level–the District Administration, the District Council, the Land Board and the Tribal Administration. In its 1979 Report the Commission recommended that each institution should retain its separate identity, with its powers balanced by those of the others. This article reviews the working of each institution, and concludes that the Commission's recommendation was justified. It notes, however, that the balance between the four institutions has been tilted to an extent in favour of the District Administration. It shows that the District Councils have displayed an improved capacity for plan implementation, but need more skilled technical personnel and a better quality of elected councillor; that the Land Boards are no longer subordinate to the District Councils in administrative matters, but are hampered by a shortage of transport and finance; and that Tribal Administration staff still work under very poor conditions, though their salaries and pensionable status are much improved.