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- Volume 20, Issue 1, 2004
South African Journal on Human Rights - Volume 20, Issue 1, 2004
Volume 20, Issue 1, 2004
Author Patrick LentaSource: South African Journal on Human Rights 20, pp 1 –31 (2004)More Less
Is judicial review of legislative enactments democratically legitimate? Does it matter? This essay interrogates the usually poorly understood relation between judicial review and democracy, focussing on the fact of reasonable disagreements about the way in which the judiciary should interpret rights. A number of views about the democratic legitimacy of judicial review, including those of Dworkin, Waldron and Michelman, are examined. I argue not only that judicial review suffers from a deficit of democratic legitimacy, but also that this shortfall has important practical consequences for politics and judicial practice. Although this essay is primarily theoretical, it draws attention to the implications of the arguments it considers and advances for South African constitutionalism.
Author Kerry WilliamsSource: South African Journal on Human Rights 20, pp 32 –63 (2004)More Less
The question whether to extend marriage to same-sex couples is likely to be decided by the courts in the near future. The international trends in this regard are inconsistent and often unprincipled because of the interaction between beliefs about marriage on the one hand, and attitudes towards homosexuality on the other. This article argues that, for reasons of principle, the constitutional guarantee of equality and dignity requires the legal recognition of same-sex marriage. A narrow conception of marriage as being limited to heterosexuals deprives lesbians and gays of material and nonmaterial benefits. It also prevents lesbians and gays from being accepted into mainstream society and thereby leading more enriched lives. Due to the recent developments in South African family law that emphasise the importance of cultural diversity, encourage tolerance, and begin to recognise notions of family which do not fit the Judeo-Christian model, there is reason to believe that the common law definition of marriage can be developed to include same-sex partners. Although domestic partnership regimes are often seen as a sufficient alternative to marriage, they deny same-sex partners spiritual and religious equality and as a result do not meet the transformative goals of the Constitution.
Benign segregation? A case study of the practice of gender separation in buses in the ultra-Orthodox community in IsraelAuthor Alon HarelSource: South African Journal on Human Rights 20, pp 64 –85 (2004)More Less
The purpose of this article is to examine, from the perspective of moral and political theory, the practice of separate seating for men and women in buses operating in ultra-Orthodox neighborhoods in Israel. Its approach however differs from much of the discourse concerning multiculturalism. Instead of asking whether preserving cultural practices is a value that overrides the concerns for gender equality, this article suggests that the very characterisation of a practice of gender separation as discriminatory is culture-sensitive and cannot be detached from the political and moral convictions of the community that sustains the practice. This discussion raises questions that are analogous to the ones facing the South African jurist who wishes to reconcile respect for African cultural norms and practices with the provisions of equality and dignity entrenched in the South African Constitution.
Author Karin LehmannSource: South African Journal on Human Rights 20, pp 86 –118 (2004)More Less
The doctrine of aboriginal title has been the subject of considerable academic commentary in South Africa in the past few years. The general tenor of this commentary has been approving of the doctrine. Proponents of the doctrine are of the view that it provides a means for communities to obtain ownership of land when they are not able to do so through the Restitution of Land Rights Act 22 of 1994. This article questions whether the doctrine really is of value for South African communities. On the one hand, it is suggested that few communities, if any, would meet the doctrine's rigorous requirements. More significantly, it is suggested that the doctrine, in its parent jurisdictions, does not operate to restore land to dispossessed communities. It recognises only that aboriginal communities currently in occupation of land have rights in and to the land. It is in this regard that the doctrine's application in South Africa is most problematic. The terms 'aboriginal' and 'indigenous' are used interchangeably under comparative and international law. Although there is standard definition of 'indigenous', under the suggested definition that has been most widely accepted, it is not clear that the black African majority in South Africa would constitute 'indigenous' peoples, in the sense of constituting distinct rights-bearers. A broad definition of 'indigenous' that would include black African communities is not consistent with the purpose that the recognition of indigenous rights seeks to achieve. A narrow definition of 'indigenous' that includes only the descendants of Khoesan peoples is likely to prove highly contentious, and may undermine the spirit of national unity and reconciliation that the Constitution seeks to achieve. An approach that avoids the need to identify communities as indigenous for the purpose of claiming rights in and to land is therefore to be preferred. It is suggested that the constitutional right to culture provides an alternative, since the link between aboriginal title and the protection of culture is clearly drawn in Canadian and Australian cases.
Not a drop to drink : disconnection of water services for non-payment and the right of access to water : notes and commentsAuthor Michael KiddSource: South African Journal on Human Rights 20, pp 119 –137 (2004)More Less
Author Rosaan KrugerSource: South African Journal on Human Rights 20, pp 138 –150 (2004)More Less
Giving money to children : the state's constitutional obligations to provide child support grants to child headed households : current developmentsSource: South African Journal on Human Rights 20, pp 151 –164 (2004)More Less
Human Rights, Robert McCorquodale (Ed.)
Law and Democracy, Tom Campbell and Adrienne Stone (Eds.) : book reviewAuthor Theunis RouxSource: South African Journal on Human Rights 20, pp 165 –169 (2004)More Less
Author Danwood Mzikenge ChirwaSource: South African Journal on Human Rights 20, pp 169 –175 (2004)More Less