I refer to Reena Budree's opinion piece ""The Melius Malady"" Commitment - a professional female's perspective' in 1999 (Apr) DR 10, which I found well written but flawed in two respects. The point of departure occurs when Ms Budree asserts that, due to the fact that the progress of women in the marketplace is being measured by existing norms, which find expression in the 'white male' norm, women must in most instances behave like men. The flaw lies in Ms Budree's perception of what that behaviour entails.
Many would think that the lengthy negotiations surrounding the interim and final Constitutions produced the final legislative word on fundamental rights and judicial review. They would, however, be wrong. Sections 32 and 33, dealing with the rights to information and just administrative action respectively, require further legislation to give effect to them. In the case of s 32 this has given rise to the Open Democracy Bill (B67/98). In the case of s 33, on 5 February 1999 the South African Law Commission released Discussion Paper 81 relating to Project 115 - 'Administrative Law'. This discussion paper contains the investigation into the drafting of legislation to give effect to s 33 'of the Constitution.
In a 182(1)(a) van die Grondwet kom die invloed van die Openbare Beskermer op die openbare sektor na vore. Ingevolge a 182(1)(a) van hierdie Wet is die Openbare Beskermer bevoeg om ondersoek in te stel na enige optrede in staatsake wat vermoedelik onbehoorlik hanteer is of benadeling tot gevolg het. Hierdie bevoegdheid geld ten opsigle van enige onbehoorlike optrede in die openbare administrasie in enige regeringsfeer. Vir die algemene publiek moet dit bepaald gerustellend wees om te weet dat daar 'n instelling is wat oor die bevoegdheid beskik om ondersoek in te stel na enige optrede van amptenare in enige regeringsfeer wat onbehoorlike optrede of onregmatige benadeling van die regte van persone tot gevolg het.
The Bill of Rights makes provision for limited socio-economic rights (second generation human rights) and 'green rights' (third generation human rights) such as trade union freedom (s 23 of the Constitution), the right to housing (s 26), the right to health care, food, water and social security (s 27), children's rights (s 28), the right to education (s 29) and the right to a clean environment (s 24). Besides making provision for these human rights, the Constitution also makes provision for the establishment of state institutions supporting constitutional democracy, of which the most important is the South African Human Rights Commission (ss 181 and 184). The Constitution has been in operation since May 1996. At this stage, it is important to take stock and measure our success in the implementation of these socio-economic rights. This assessment is important in more ways than one, especially in the light of the fact that many lawyers argued strongly against the inclusion of the second and third generations of human rights in a Bill of Rights. The argument was that these rights are not enforceable in a court of law; that they would create unnecessary expectations of food, shelter, health and the like; and that a clear distinction should be made between first generation and other rights, as well as the relationships of these rights to one another.
The attention of practitioners is directed to the following developments which may have an influence on their practices. The Judicial Matters Second Amendment Act Section 9 of the Judicial Matters Second Amendment Act 122 of 1998, published in GG 19590/11-12-1998*, contains an amendment to s 83 of the Attorneys Act 53 of 1979. The amendment, by way of an addition to s 83, amends the sections dealing with offences under the Attorneys Act.
When asked about appeal procedures, most practitioners will confess to being doubtful about where to begin. After being faced with the same doubt, I prepared the following step-by-step appeal procedure guidelines that I hope will assist other young attorneys.
Delegation of powers, penalty provisions, absolute prohibitions and the Constitution Sectional title schemes are controlled and managed by means of rules. These rules are the primary instrument with which trustees fulfil their duties. It is not surprising that trustees regard the rules as supreme when considering almost any matter. Furthermore, they often address difficult problems by making special rules in order to alleviate their task.
During the Kempton Park negotiations one of the difficult issues to be resolved was the content of a Bill of Rights. At that stage, an agreement was reached on the desirability of including a Bill of Fundamental Human Rights in the Constitution. To the dismay of some of us, the issue of the content of a Bill of Rights occupied the minds of negotiators for a long time. At the centre of the disagreement was the inclusion of the second and third generations of human rights in a Bill of Rights, as opposed to only the first generation of human rights.