South African Journal on Human Rights - latest Issue
Volume 31, Issue 2, 2015
South Africa's obligations to react to the intensified criminalisation of same-sex conduct in Nigeria and Uganda under domestic and international lawAuthor Annika RudmanSource: South African Journal on Human Rights 31, pp 241 –268 (2015)More Less
Discrimination against LGTB persons is endemic in most African countries. The bias against LGTB persons is often supported by discriminatory legislation. Legislation criminalising same sex intimacy, sexual acts, LGTB advocacy and same sex marriages has in the last few years been introduced in Nigeria and Uganda. The SAHRC has called on the South African government clearly and visibly to reject these laws and to appeal to have them repealed. The government however has made it clear that it relies on what it perceives to be the sovereign rights of these states to adopt this type of legislation and it has therefore declined to respond to this call. The way in which the executive has approached this situation is an expression of what foreign policy so often is, a manifestation of the state's self-interest strategies. However, the critical issue that this article aims to interrogate is whether there are any restrictions on these self-interest strategies when gross violations of basic human rights are taking place. The article draws attention to a number of key issues; first, whether the executive is bound by the constitutionally protected principles of equal rights and non-discrimination in setting out its foreign policy; second, whether South Africa as a member of the UN and AU is under any international/regional legal obligations to act when basic rights are being grossly violated; third, whether South Africa's obligations under customary international law on state responsibility is relevant in this case; and last, if there are such legal obligations internally, externally or in combination whether these obligations would move South Africa's responsibility beyond the point of relying solely on the use of quiet diplomacy.
Author Anel Du PlessisSource: South African Journal on Human Rights 31, pp 269 –293 (2015)More Less
The impacts of climate change on human and ecological systems and the increasing volatility of life situations demand of scholars to critically evaluate governments' protection of the natural resource base and the interests that communities have in a safe, healthy and preserved environment. It begs the question what the South African government must do as national 'public trustee' to protect the environmental interests and rights of unborn generations of South Africans. The recently adopted United Nations Secretary-General's Report on Intergenerational Solidarity and the Needs of Future Generations reiterates the relevance of the focus on the environmental and other needs of future generations. This article considers how the government as public trustee ought to approach 'climate-resilient development' as provided for in the Climate Change Response White Paper to ensure a long-term response adequate to protecting the environmental interests and rights of the present and future generations.
Source: South African Journal on Human Rights 31, pp 294 –314 (2015)More Less
Given the spatial and economic inequalities inherent to South African towns and cities, which have been exacerbated by recent waves of urbanisation, this article aims to situate the provision of public transport in South Africa within a rights-based framework. This involves both an acknowledgement of the geographical components of human rights and of the human rights impacts of policies pertaining to transport provision and regulation. Relying upon urban theory on the 'right to the city', we illustrate how public transport, while not the subject of an independent constitutional right, is central to accessing the objects of most constitutionally ensconced socio-economic rights, and is also an integral element of exercising various civil and political rights. Drawing from examples in contemporary Johannesburg, we accordingly argue that executive policy choices in relation to the provision and regulation of public transport should be assessed through a rights-based prism and should be subjected to dialogic interaction with the judiciary, within a substantive, rights-based understanding of mobility and urban accessibility.
Source: South African Journal on Human Rights 31, pp 315 –329 (2015)More Less
This article expounds the Composite Theory to define the parameters for the exercise of academic freedom in Africa, informed by its political, historical and cultural circumstances and expressed in the Dar es Salaam Declaration on Academic Freedom and Social Responsibility of Academics and the Kampala Declaration on Intellectual Freedom and Social Responsibility. This approach follows in the line of the Special Theory and General Theory postulated to justify the exercise and application of academic freedom in Germany and the United States of America, respectively. The Composite Theory contends that academic freedom in the African context should not only be seen in the narrow prism of protecting the rights of academics on and off the university campus. It includes a commitment to recognise and contribute to promoting the rights of other key actors in the academic freedom equation, to wit, students and the society as a fulfilment of the academic's social responsibility. This role can be fulfilled both within and outside the university campus. Internally, academics shall respect students' right to academic freedom and immerse knowledge-sharing in a democratic ethos. This approach will likely instil in the students respect for democracy, human rights and the rule of law, which they will carry away with them from the university into life within the society. Extramurally, equipped with their knowledge, skills and experience, African academics should take advantage of their privileged positions in society to leave their ivory towers and, where necessary, solidarise with other civil society actors to promote social transformation and human emancipation. This is the guaranteed way to protect academic freedom on the campuses.
The need for a capabilities-based standard of review for the adjudication of State resource allocation decisionsAuthor Shanelle Van der BergSource: South African Journal on Human Rights 31, pp 330 –356 (2015)More Less
The realisation of socio-economic rights constitutes a critical prerequisite in the struggle to eradicate poverty and inequality in South Africa. State resource allocation lies at the heart of the realisation of socio-economic rights. Courts will often be called upon to adjudicate complex, polycentric prioritisation decisions taken by the state. An appropriate review paradigm can aid courts in performing this onerous task. Capabilities, as the substantive freedom to choose the lives we have reason to value, resonate strongly with the socio-economic rights enshrined in the Constitution of the Republic of South Africa, 1996. The capabilities approach can therefore be developed to constitute a capabilities-based standard of review for the adjudication of state resource allocation decisions. The need for such a theoretically justified standard of review becomes apparent from the Constitutional Court's insufficient focus on the content of socio-economic rights, and from the maintenance of a rigid distinction between the positive and negative duties imposed upon the state by socio-economic rights
Author Nica SiegelSource: South African Journal on Human Rights 31, pp 357 –378 (2015)More Less
This article begins by taking up the theoretical proximity between scholar and attorney Wilmien Wicomb's conception, drawn from a hybrid of Derridean thought and cybernetic theory, of customary law within South Africa as a 'complex system', and the complexity theory of founding neoliberal legal thinker Friedrich Hayek, for whom cybernetic complexity theory was a substantial intellectual influence. Wicomb's theoretical frame raises the question of the role the market plays and ought to play in the creation and maintenance of spaces within which customary law can function as an independent, constitutionally recognised source of law within South Africa. This question is of pressing importance at a moment when neoliberalism, understood as a mode of governance, is an active and harmful paradigm in the lives of members of customary communities, as well as in the legal culture more broadly, in South Africa, as an analysis of the legal norms present in South Africa's 'vision for 2030', the National Development Plan, will demonstrate. Wicomb's work, it is argued, offers an occasion for a critical rethinking of the status of customary law, its boundaries, and the kinds of legal institutions capable of responding to it at the contemporary legal moment in South Africa.
Author Elsje BonthuysSource: South African Journal on Human Rights 31, pp 379 –400 (2015)More Less
The common law action against a third party who had committed adultery with a spouse has long been regarded as a legal peculiarity. Its presence in our law was awkward, and out of step with the legal positions in other countries. The Supreme Court of Appeal (SCA) judgment in RH v DE abolishing the actions for contumelia and loss of consortium on the basis of adultery therefore elicited great public and legal interest.
The right of asylum seekers and refugees in South Africa to self-employment : a comment on Somali Association of South Africa v Limpopo Department of Economic Development, Environment and Tourism : current developments / case notesAuthor Justin De JagerSource: South African Journal on Human Rights 31, pp 401 –409 (2015)More Less
In Somali Association of South Africa v Limpopo Department of Economic Development, Environment and Tourism the Supreme Court of Appeal (SCA), overturned the decision of the North Gauteng High Court and declared that the closure of businesses owned and operated by refugees and asylum seekers in the Limpopo Province, South Africa, was unlawful and invalid.
Source: South African Journal on Human Rights 31, pp 410 –424 (2015)More Less
This note provides descriptive statistics on the work of the Constitutional Court of South Africa in 2012, organised in a number of tables. The method of constructing each table is given in the text that follows it. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of the SAJHR.
Author Des GasperSource: South African Journal on Human Rights 31, pp 425 –433 (2015)More Less
Justice Ackermann was a member of South Africa's Constitutional Court for its first decade, between 1994 and 2004. In a major book he has endeavoured to elucidate the meaning, rationale and some of the modus operandi for the central commitment to equality in the Constitution of the Republic of South Africa, 1996. The country's Bill of Rights, which forms chapter 2 of the Constitution, highlights in its first clause the core values of 'human dignity, equality and freedom'. Laurie Ackermann proposes that the first two values are fundamentally connected, for dignity provides the key to interpreting equality. To the question 'equality of what?' he replies: equality of human dignity, human worth (Menschenwürde in German, menswaardigheid in Afrikaans). The application of this principle of equality of worth (or 'worthiness') will, he argues, help to resolve issues in the interpretation of rights and of conflicts between rights.
The Politics of Principle : The First South African Constitutional Court, 1995-2005, Theunis Roux : book reviewAuthor Thandiwe MatthewsSource: South African Journal on Human Rights 31, pp 434 –440 (2015)More Less
The Politics of Principle authored by Theunis Roux (2013) seeks to explain the success of South Africa's Constitutional Court in legal and political terms. The author has selected for review the period during which the court was under the leadership of its first chief justice, and former president of the Constitutional Court, Arthur Chaskalson. This period begins on 14 February 1995, when the court was established under the interim Constitution, until Justice Chaskalson's retirement on 31 May 2005. Roux's primary aim is to examine how the 'Chaskalson court' (a term coined by the author) was able to achieve both legal and political successes simultaneously. Although the court was established during a period of great political uncertainty, Roux argues that the Chaskalson court was able to strike a remarkable balance - the court's legal decisions did not result in political interference, nor did politics influence the court's decision-making processes.