South African Journal on Human Rights - Volume 19, Issue 3, January 2003

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 regulates a category of expression that falls outside of the boundaries of the s 16(2) internal modifier. This article examines the constitutionality of these provisions, and in the process develops a limitations analysis which recognises the harm caused by hate speech and provides for greater limitations on the right to freedom of expression than those currently provided for in s 16(2) of the Constitution. Notwithstanding this enhanced limitation analysis, the examination reveals that certain of the hate speech provisions in the Equality Act are unjustifiable limitations of s 16 of the Constitution. The article suggests certain amendments that need to be made to the provisions in order to render themconstitut ionally acceptable.

This article explores the question of whether charging school fees for public education violates s 29 or s 9 of the Constitution. The article concludes that fees may be unconstitutional, for two reasons. First, charging school fees may violate learners' rights to basic education under s 29, because a fee-based financing systemcreates problems with both &lt;I&gt;access&lt;/I&gt; and <I>adequacy</I>. Despite the availability of exemptions for the poor, the school fee regime of financing appears to completely bar access for some learners. It also unconstitutionally burdens the right to access for others by requiring families to expend significant portions of their income on fees. In addition to problems with access, fee-based school financing may also violate s 29 because this model of financing fails to provide a substantively adequate core level of basic education. Fee-poor districts cannot adequately fund school needs through fees, and government currently does not provide sufficient state funding to remedy the shortfall. Second, charging school fees may violate the guarantee of &lt;I&gt;equality&lt;/I&gt; in s 9 of the Constitution because fees discriminate on the basis of race and class. A school's ability to charge fees - and to provide a learner with greater funding and resources - appears to correlate strongly to the class and race of the community in which the school is located. Research indicates that the practice of charging school fees appears to reproduce apartheid-era disparities in expenditures per learner between poor black learners and middle and high-income white learners.

This article sets out the major developments relating to s 49 of the Criminal Procedure Act (the law relating to the use of lethal force for arrest) since 1994. It then looks at the relationship between the questions of principle raised by the Constitutional Court in <I>S v Makwanyane</I>, and the use of lethal force. Finally it looks at the South African legal framework as defined by the 1998 Amendment to s 49, which was brought into operation in July 2003, in relation to the leading judgments of the Supreme Court of Appeal and the Constitutional Court on the matter. It focuses on three key questions relevant to understanding provisions on the use of lethal force for arrest. Firstly, the types of offences or situations in relation to which the use of lethal force for purpose of arrest may be justified. Secondly, is it acceptable for the power to use lethal force for arrest to be available to the public or should it be restricted to the police? Thirdly, considering the risk of error, what is an appropriate standard of belief for the use of lethal force to be justified, considering its potentially irreversible fatal consequences? While supporting the principles embodied in the legislation, the article argues that the 1998 amendment is inadequate as it lacks clarity and that, considering the South African context, this is inappropriate for lethal force legislation. In addition, neither the legislation nor the leading court judgments focus on the potential for error.