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- Volume 20, Issue 2, 2004
South African Journal on Human Rights - Volume 20, Issue 2, 2004
Volume 20, Issue 2, 2004
Author Pierre De VosSource: South African Journal on Human Rights 20, pp 179 –206 (2004)More Less
Many individuals who form same-sex intimate relationships argue that the social and legal protection associated with heterosexual marriage should be extended to their relationships. This is understandable because marriage in South Africa remains the focal point for the protection and regulation of the interests of individuals who engage in intimate relationships of any kind. However, merely extending marriage rights to same-sex couples whose relationships mirror the idealised heterosexual norm will be problematic. Because of homophobia and prejudice many individuals in same-sex intimate relationships will not be able to freely 'choose' to get married. Others will form intimate relationships that will not be recognised because they will be insufficiently similar to the traditional heterosexual notion of marriage. Those who do not marry will therefore once again be marginalised and the law will once again fail to protect the weaker and more vulnerable partners in such relationships. The early case law of the Constitutional Court recognised that the right to substantive equality entails a right to equal concern and respect across difference and thus hinted that not only marriage-like intimate same-sex relationships, but also non-traditional forms of suchrelationsh ips should be constitutionally protected and respected. However, later judgments seem to suggest that intimate relationships that stray too far from the model of traditional heterosexual marriage, are less worthy of respect and protection. This narrow conception of what constitutes worthy intimate relationships is deeply problematic, not only for individuals in non traditional same-sex relationships but also for the millions of individuals in different-sex relationships who are not married, because it marginalises them and fails to extend legal protection to some of the most vulnerable members of society. The legal regulation of intimate relationships should therefore completely move away from the marriage model and should instead be based on a functional model which takes account of the unequal power relations in intimate relationships.
All these long-haired fairies should be forced to do their military training. Maybe they will become men'. The end conscription campaign, sexuality, citizenship and military conscription in apartheid South Africa : focus on sex and secrecyAuthor Daniel ConwaySource: South African Journal on Human Rights 20, pp 207 –229 (2004)More Less
Sexuality was articulated by the apartheid state as a means of disciplining the white population and marginalising white opponents of apartheid. As such, homophobia was a recurrent feature of political and legal discourse. The End Conscription Campaign (ECC) opposed compulsory conscription for all white men in the apartheid era South African Defence Force (SADF). Its challenge was a potentially radical and profoundly destabilising one and it articulated a competing definition of citizenship to that offered by the state. The pro- and anti-conscription discourse was inherently gendered and overtly sexualised and whilst the ECC offered alternative conceptions of bravery, honour, duty and male maturity to that of the state, the ECC found engaging with the state's homophobic attacks far more problematic. The South African government regularly associated men who objected to military service with effeminacy, cowardice and sexual 'deviance'. The case of Dr Ivan Toms, a gay objector who wished to cite his sexuality as a primary motivation for his objection, reveals the unwillingness of the ECC to engage in sexual politics. Using Shane Phelan's and Zygmunt Bauman's concept of friends, enemies and strangers, this paper investigates the construction of both white gay men and white people who opposed apartheid as 'strangers' and suggests that the deployment of homophobia by the state was a stigmatising discourse aimed at purging the ECC's political message from the public realm. In this context the ECC adopted an assimilatory discursive strategy, whereby they attempted to be 'respectable whites', negotiating over shared republican territory. However, the avoidance of issues of sexuality demonstrated by the Toms case also avoided engaging the homophobic discourse and the fundamental conflation of sexuality and citizenship in apartheid South Africa. The ECC thus circumscribed its radical and deconstructive political potential.
Author Nicole FritzSource: South African Journal on Human Rights 20, pp 230 –248 (2004)More Less
Author Henk BothaSource: South African Journal on Human Rights 20, pp 249 –283 (2004)More Less
The question of freedom and constraint in adjudication is closely related to questions about the politics of law, the possibility of the rule of law, the responsibility of judges for their decisions, and the capability of lawyers to challenge deeply held assumptions and transform their own practices. This article begins to explore these issues by examining three different understandings of freedom and constraint. In the first, constraints are conceived metaphorically as physical objects, which constitute solid boundaries between lawful and unlawful conduct. The second view is Duncan Kennedy's conception of law as the exchange of contradictory argument-bites. The third metaphor is also derived from the work of Kennedy: that of law as the field of a judge's action. The article argues that, while the first two metaphors promote an understanding of freedom and constraint as mutually exclusive and of adjudication as something mechanical, the third metaphor enables a more sophisticated understanding of freedom and constraint as graded categories, and of the role of culture, persuasion and imagination in legal reasoning. However, the idea of legal rules as long, straight boundaries which predetermine the outcomes of cases, continues to exert a powerful hold on the South African legal imagination. It is argued that the Constitution requires legal interpreters to remain open to different interpretations, and to develop a more self-conscious style of adjudication which is characterised by a willingness to challenge deeply held assumptions and to articulate the moral and political beliefs through which their interpretations are filtered.
Grootboom and beyond : reassessing the socio-economic jurisprudence of the South African Constitutional CourtAuthor Murray WessonSource: South African Journal on Human Rights 20, pp 284 –308 (2004)More Less
This article reviews the emergent socio-economic jurisprudence of the South African Constitutional Court, focusing particularly on the seminal case of <I>Grootboom</I>. The first part disputes a particularly prevalent characterisation of the Court's approach - namely, that it constitutes an administrative law approach the adjudication of socioeconomic rights - and suggests, instead, that <I>Grootboom</I>, <I>TAC</I> and <I> Khosa</I> might be more profitably read as ensuring that vulnerable sectors of society are not neglected, or overlooked. <I>Grootboom</I> is also, it is argued, best understood as establishing a relationship of collaboration between the state and judiciary, in terms of which each branchof government brings its particular skills to bear on the problem of remedying such omissions. Thereafter, the most prevalent criticism of the Court's approach - its failure to embrace the minimum core - is considered. Despite the apparent advantages of the minimum core, and the fact that not all of the Court's objections are entirely convincing, the article concludes that the Court is indeed correct to be wary of this idea. In particular, it emphasises that discussions of the minimum core tend to overlook the complicated relationship between core and non-core needs, and the difficulty of balancing these against one another. Finally, it is argued that, although the approach taken by the Court is, by and large, sound, supervisory jurisdiction is, in certain cases, essential if that approach is to achieve its full effect, and should be regarded as furthering the collaborative approach that <I> Grootboom</I> establishes.
Ought the notion of 'informed consent' to be cast in stone? VRM v The Health Professions Council of South Africa : notes and commentsAuthor Faranaaz VeriavaSource: South African Journal on Human Rights 20, pp 309 –320 (2004)More Less
Author Anthony KinghornSource: South African Journal on Human Rights 20, pp 331 –335 (2004)More Less
Humanitarian Intervention : Ethical, Legal and Political Dilemmas, J.L. Holzgrefe and Robert Keohane (eds) : book reviewAuthor Garth AbrahamSource: South African Journal on Human Rights 20, pp 335 –342 (2004)More Less