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- Volume 19, Issue 2, 2003
South African Journal on Human Rights - Volume 19, Issue 2, 2003
Volume 19, Issue 2, 2003
Magistrates under apartheid : a case study of the politicisation of justice and complicity in human rights abuseSource: South African Journal on Human Rights 19, pp 141 –188 (2003)More Less
This article focuses on the simultaneous impact of the prevailing legal doctrine of positivism and the fact of being state employees on the work and perceptions of magistrates in apartheid South Africa. It examines the complementarity of 'ruleoriented' and 'role-oriented' positivism which rendered legal theory subservient to and a form of argumentation for a dominant political agenda. Broad allegiances to the law and to the state conditioned not only magistrates' practice, including the exercise of discretion. It also affected magistrates' self-perceptions, notably of their independence and, ultimately, their views on morality and responsibility. What are the implications of such stark personal, professional and political constraints for both forms, and understandings, of complicity in human rights abuses? The article discusses the supervision by magistrates of the complaints and safeguard system for detainees to provide more detailed insights into the interface between law and politics. It concludes that while there is a general acknowledgement among magistrates that abuses took place this has yet to be translated into acknowledgement of personal complicity in those abuses.
Institutional monitoring of social and economic rights : a South African case study and a new research agendaAuthor Dwight G. NewmanSource: South African Journal on Human Rights 19, pp 189 –216 (2003)More Less
The South African Human Rights Commission (SAHRC)'s four <I>Economic and Social Rights Reports</I> published between 1998 and 2003 are used as a case study to examine the institutional monitoring of social and economic rights. It is argued that the SAHRC's monitoring leaves certain kinds of gaps, that civil society can provide complementary monitoring, and that this case study drives us toward bringing new theoretical frameworks to a critical analysis of human rights monitoring institutions.
Source: South African Journal on Human Rights 19, pp 217 –238 (2003)More Less
Since the new South African Constitution came into force, most of the discriminatory legislation of the colonial and apartheid eras has been repealed. The Natal Code of Zulu Law (Proc R151 of 1987) and the KwaZulu Act 16 of 1985 on the Code of Zulu Law are notable exceptions. Although particular sections of the Codes violate various provisions in the Bill of Rights, this article argues that the Codes should be repealed in their entirety on the ground that their very existence and their continuing application offend the right to equality in s 9 of the Constitution. The inquiry concentrates on the question whether the discriminatory nature of the Codes is nevertheless fair, and, if unfair, whether it may be justified under s 36 of the Constitution (the limitation clause). A factor considered in both the unfairness inquiry under s 9 and the justification inquiry under s 36 is the purpose of the Codes, both now and at the time of their inception. It is our view that possible arguments based on protection of the right to culture and legal certainty are unlikely to survive constitutional scrutiny, and, accordingly, the Codes should be repealed.
Author Karin Van MarleSource: South African Journal on Human Rights 19, pp 239 –255 (2003)More Less
The article compares law's time and its effects on how we understand and approach law and legal interpretation, to other concepts of time. It explores two trends: one, asking for a disruption of a chronological and a linear conception of time that could contribute to an acceptance of the notion of multiple truths and fluidity of meanings and the other, supporting the notion of slowness, where difference and particularity can be explored and recognised in contrast to law's speed, universalisation and generalisation. It contemplates how events and interpretations of art can illustrate a way of disrupting chronological time, and by lingering, of showing greater attentiveness. The article investigates and tentatively suggests other ways of or attitudes to legal reading and interpretation, always keeping the limits and the violence of the law in mind. Artist William Kentridge's observation that '[t]he more general it becomes, the less it works' stands central to the concern with particularity.
Author P.J. SchwikkardSource: South African Journal on Human Rights 19, pp 256 –262 (2003)More Less
Preventing mother-to-child HIV transmission in South Africa : background, strategies and outcomes of the Treatment Action Campaign case against the Minister of Health : current developmentsAuthor Mark HeywoodSource: South African Journal on Human Rights 19, pp 278 –315 (2003)More Less
Author Danwood Mzikenge ChirwaSource: South African Journal on Human Rights 19, pp 316 –338 (2003)More Less
Author Conor GeartySource: South African Journal on Human Rights 19, pp 339 –343 (2003)More Less
The African Charter On Human And Peoples' Rights : The System in Practice, Malcolm Evans and Rachel Murray (eds) : book reviewAuthor Daniel C. TurackSource: South African Journal on Human Rights 19, pp 344 –347 (2003)More Less