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- Volume 20, Issue 3, 2004
South African Journal on Human Rights - Volume 20, Issue 3, 2004
Volume 20, Issue 3, 2004
Source: South African Journal on Human Rights 20, pp 343 –344 (2004)More Less
An international conference to mark the twentieth year of publication of the SAJHR was held at Jan Smuts House at the University of the Witwatersrand on 5-7 July 2004. The theme of the conference was 'Twenty Years of Human Rights Scholarship and Ten Years of Democracy'. In this part we publish John Dugard's keynote speech and revised versions of two of the papers presented there. Other papers from the conference will be published in forthcoming parts.
Author John DugardSource: South African Journal on Human Rights 20, pp 345 –354 (2004)More Less
Now another thing must happen : Richtersveld and the dilemmas of land reform in post-apartheid South AfricaAuthor Marcia BarrySource: South African Journal on Human Rights 20, pp 355 –382 (2004)More Less
The Constitutional Court's decision in the Richtersveld case, recognising the Richtersveld community's right to restitution of the lands they had been dispossessed of in the 1920s, was hailed as a victory for the cause of justice in South Africa. Of legal interest is the South African court's consideration, for the first time, of the doctrine of aboriginal title. This article explores the theories of justice that underpin the decision, contending that the justice claims made by the parties are more complicated than they first appear. While the Richtersveld community's claim is predominately grounded in the politics of recognition, the government's defence can be understood with reference to the politics of redistribution. This article explores some of the complications raised by the competing theories of justice that underlie the positions of the parties. While redressing past injustices will usually further broader objectives of social justice generally, the Richtersveld decision illustrates that this is not necessarily the case. Tensions can arise between competing justice claims, and there is always a danger that righting one injustice may be perpetuating or even creating other injustices. The purpose of the article is not to suggest a solution to these tensions, but merely to explore the complications, and to suggest that there are any aspects of restitutionary claims that need further theorising.
Author Marius PieterseSource: South African Journal on Human Rights 20, pp 383 –417 (2004)More Less
The debate about judicial involvement in socio-economic rights, inaugurated in the SAJHR in 1992 and still continuing, should be reconceptualised so that it can make a constructive contribution to contemporary discussions about an appropriate judicial role in a socially just constitutional dispensation. Many of the fears raised by participants in this debate about the legitimacy and competence of the judiciary in socio-economic rights matters are misplaced. The provisions of the 1996 Constitution require a dramatic reconceptualisation of both the operation of separation of powers generally and of the role played by the judiciary within the doctrine. However, the continuing influence of South Africa's pre-constitutional legal culture means that judges remain uncomfortable with the role that the Constitution requires them to play. Post-1996 South African courts are not only permitted, but are constitutionally obliged to give meaning to socio-economic rights through interpretation, to evaluate government compliance with the duties they impose, to pronounce on the validity of legislation and policy in the socio-economic sphere and to remedy state non-compliance with socio-economic obligations. This article engages briefly with these obligations in an attempt to illustrate that it is possible to strike a balance between judicial vigilance and deference in every stage of socio-economic rights adjudication. It also notes that the Constitutional Court has carried out these obligations in a remarkably tentative manner in the socio-economic rights cases it has heard, despite its unequivocal affirmation of its authority in such cases.
Author Stuart WilsonSource: South African Journal on Human Rights 20, pp 418 –447 (2004)More Less
Rights are social conventions. Social actors appropriate and mould them to serve particular social purposes. One purpose which rights can serve is the buttressing of politically motivated claims about the just distribution of resources. This article analyses the manner in which rights have been moulded to serve a range of political purposes in South Africa's recent education funding reform process. After a detailed analysis of South Africa's education funding regime, the article argues that rights have been used (with some success) to criticise and effect reform in that regime. However, since invoking the right to a basic education seems to have held a merely instrumental appeal to reform advocates, the state has been able to reinterpret the same right to justify its own incremental, budget-friendly reform proposals in the face of trenchant criticism. The article concludes by suggesting that a progressive politics of rights ought to be organised around the idea that rights have intrinsic worth. Instrumental rights claims can result in a near zero-sum game in which social actors simply dress up their embedded interests in the language of rights, without considering what rights actually mean on their own terms.
Author Kevin IlesSource: South African Journal on Human Rights 20, pp 448 –465 (2004)More Less
The decision of the Constitutional Court in Khosa v Minister of Social Development raises the question of the distinction between a general limitations clause analysis and an internal limitations clause analysis in the context of the socio-economic rights in the 1996 Constitution. This article explores the difference between reasonableness in the general limitation clause of the Constitution and reasonableness in the internal limitations clauses of the socio-economic rights and defines a role for each.
Author Kealeboga N. BojosiSource: South African Journal on Human Rights 20, pp 466 –481 (2004)More Less
In 1995, two men were charged with engaging in unnatural acts and indecent practices between males in terms of ss 164 and 167 of the Botswana Penal Code. However it was not until July 2003 that the Court of Appeal of Botswana handed down a decision in which it held that the provisions of the Penal Code under which they were charged did not violate the Constitution. This case enjoyed extensive media coverage for reasons which are not necessarily germane to this paper. For the writer however, the case was of utmost importance for three reasons. Firstly, it presented an opportunity for the courts of Botswana to critically examine and authoritatively lay down the exact contours of the right to equality and non-discrimination in Botswana. Secondly, it presented an opportunity for the courts of Botswana to draw on foreign jurisprudence in interpreting this fundamental right. Lastly, it presented an opportunity for the courts of Botswana to make an authoritative ruling on the rights of homosexuals in Botswana. The aim of this note is to critically evaluate and comment on the decisions of both the High Court and the Court of Appeal.
Author Tamara CohenSource: South African Journal on Human Rights 20, pp 482 –490 (2004)More Less
Section 23 of the Constitution provides that '[e]veryone shall have the right to fair labour practices'. 'Fair labour practices' are not defined in the Constitution and this intentionally flexible concept, which is intended to accommodate and balance the evolving rights and interests of employers and employees, takes its shape from the labour legislation, the common law contract of employment and constitutional interpretation. The price to pay for flexibility is uncertainty and as a result many questions have been raised as to the meaning and scope of fair labour practices and the appropriate forum for their determination. In National Entitled Workers' Union (NEWU) v CCMA the Labour Court addresses these questions through a consideration of the ambit of 'fair labour practices' as contemplated by the Constitution.
Source: South African Journal on Human Rights 20, pp 491 –500 (2004)More Less
This note provides some descriptive statistics on the work of the Constitutional Court in the past year, organised in eight tables. A ninth table looks at the expected terms of the judges of the Court. The method of constructing each table is given in the text following the table. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of this journal.
Re-Imagining Justice : Progressive Interpretations of Formal Equality, Rights and the Rule of Law, Robin L. West : book reviewAuthor Cathi AlbertynSource: South African Journal on Human Rights 20, pp 501 –505 (2004)More Less
Those who are familiar with Robin West's work in feminist and critical legal studies will know her as a scholar who has sought to engage the conceptual foundations of law and legal liberalism in a manner that seeks to expose their biases, as well as to offer forms of reconstruction. In addition, she does not hesitate to engage critically with the thinking of the broad critical legal studies movement. Her 1988 article 'Jurisprudence and Gender' was both a trenchant criticism of the liberal legal subject, and of the limitations of the alternatives posed by critical legal studies and radical feminism. Working from a broadly relational feminist perspective, West has paid particular attention to questions of community, care and empowerment in and through the law. Her concern is not only with the theory of law, but also with how the law is better able to protect those who are most in need: victims of forms of private violence, those who lack power in negotiating legal agreements, and the economically and socially vulnerable.