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- Volume 19, Issue 4, 2003
South African Journal on Human Rights - Volume 19, Issue 4, 2003
Volume 19, Issue 4, 2003
Horizontal application of fundamental rights and the threshold of the law in view of the Carmichele sagaAuthor Johan Van der WaltSource: South African Journal on Human Rights 19, pp 517 –540 (2003)More Less
Is there a fundamental gap between the common law of delict and the fundamental rights embodied in the Constitution? This is the assertion of Chetty J in <I>Carmichele v Minister of Safety and Security</I>, anassertion that this article disputes. The hiatus between common law and constitutional law to which Chetty J refers does not lie between the substantive common law principles of delict and constitutional law. It lies between the common law principles of the law of procedure and constitutional law. In fact, strictly speaking, the hiatus should be seen to lie between the common law principles of procedural law and the common law principles of delict. A thorough application of the substantive principles of the common law of delict could have achieved everything the Constitution could have required it to achieve in the case of <I>Carmichele</I>. But it was prevented from doing so by the outdated principles of the South African law of civil procedure (or at least the outdated understanding of these principles in the first High Court judgment and the judgment of the Supreme Court of Appeal). This argument confronts us with the question whether most of the work of developing the common law, at least as far as private law is concerned, must be done inthe law of civil procedure.
The right to health in international law : its implications for the obligations of state and non-state actors in ensuring access to essential medicineAuthor Danwood Mzikenge ChirwaSource: South African Journal on Human Rights 19, pp 541 –566 (2003)More Less
A range of international human rights instruments, declarations and resolutions affirm that good health is a precondition for the enjoyment of all other human rights and for participation in socio-economic and political life. However, many people across the globe (especially in Africa and Asia) lack access to essential medicine. This article argues that access to medication, treatment and care is an essential element of effective responses to pandemics and other diseases. In particular, it is argued that international law imposes a minimum core (and non-derogable) obligation on states to provide essential medicine. In recognition of the increasing role that private actors are playing in ensuring access to essential medicine, their human rights obligations relating to access to essential medicine are also explored.
The distinction between deprivations and expropriations and the future of the 'doctrine' of constructive expropriation in South AfricaAuthor Hanri MostertSource: South African Journal on Human Rights 19, pp 567 –592 (2003)More Less
'Constructive expropriation' refers to the protection of individual property holders against detrimental consequences of state regulation of private property in two distinct ways, by either affording compensation to the aggrieved right holder, or by striking down the imposition. Two aspects of the relevant constitutional provisions are considered in this contribution: (i) the impact of conjunctive and disjunctive readings of ss 25(1) and (2) on the issue of constructive expropriation; and (ii) the interpretative relevance of the relationship between s 25 and s 36 for constructive expropriation scenarios. Although <I>Harksen v Lane and Steinberg v South Peninsula Municipality</I> rely on different underlying assumptions about deprivations and expropriations, neither canpr ovide a viable basis from which to consider the idea of constructive expropriation and its relevance for the South African context. <I>First National Bank of SA t/a Wesbank v Commissioner for the South African Revenue Service</I> suggests that the basis for reliance on an 'argument' of constructive expropriation in South Africa must be sought in the criterion of excessiveness, deduced from the court's treatment of the non-arbitrariness requirement of s 25(1). It is concluded that constructive expropriation refers merely to the phenomenon of striking down a particular measure on the basis of its excessiveness. In the jurisprudence as it stands, payment of compensation for cases of regulation that 'go too far' cannot be envisaged.
Author Daniel Malan PretoriusSource: South African Journal on Human Rights 19, pp 593 –635 (2003)More Less
Since South Africa's transition to democracy, the manner in which the broadcasting industry is regulated has been transformed. This transformation has been achieved principally through the enactment of the Independent Broadcasting Authority Act 153 of 1993 and the Broadcasting Act 4 of 1999. A decade after the commencement of the transition, a broadcasting jurisprudence (based on the judicial interpretation of some of the provisions of these statutes) has begun to emerge through several High Court judgments, as well as one judgment each by the Supreme Court of Appeal and the Constitutional Court. Most of these judgments were given in judicial review proceedings in respect of decisions by the Independent Broadcasting Authority and the Independent Communications Authority of South Africa regarding applications for broadcasting licences. These judgments not only deal with the interpretation of the broadcasting statutes but also illustrate the application of the principles of administrative law in the context of the broadcasting statutes. It is possible to discern divergent nuances in the approach taken by different divisions of the High Court to their supervisory function over the proceedings of the broadcasting regulatory authority. The courts have also given an indication of their attitude to applications for interim relief pending the finalisation of review proceedings.
Author Alison DuxburySource: South African Journal on Human Rights 19, pp 636 –662 (2003)More Less
Domestic violence : is South Africa meeting its obligations in terms of the Women's Convention? : notes and commentsAuthor Michelle GovenderSource: South African Journal on Human Rights 19, pp 663 –678 (2003)More Less
From Doha to Cancun : the quest to increase access to medicines under WTO rules : current developmentsAuthor Yousuf A. VawdaSource: South African Journal on Human Rights 19, pp 679 –690 (2003)More Less
Enforced disappearances before Argentinean tribunals : new developments in an endless fight for justice : current developmentsAuthor Maria Fernanda Perez SollaSource: South African Journal on Human Rights 19, pp 691 –716 (2003)More Less
Between Light and Shadow : The World Bank, International Monetary Fund and International Human Rights Law, Mac Darrow : book reviewAuthor Patrick BondSource: South African Journal on Human Rights 19, pp 717 –725 (2003)More Less