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- Volume 21, Issue 2, 2005
South African Journal on Human Rights - Volume 21, Issue 2, 2005
Volume 21, Issue 2, 2005
Author Sandra FredmanSource: South African Journal on Human Rights 21, pp 163 –190 (2005)More Less
One of the key insights of substantive equality is the recognition that it is not colour, gender or some other group characteristic per se which is at issue, but the attendant disadvantage. This focus on disadvantage means that, for substantive equality to be effective, it should include a positive duty to provide. This in turn moves the anti- discrimination agenda onto the uncertain frontier between policy and law. This poses a difficult set of challenges for judges. The political arena is frequently seen as the primary space for developing the positive duty to provide; a space which judges are reluctant to invade. In some jurisdictions the result has been a definition of substantive equality which defers to the state by protecting it from having to justify distributive decisions. On the other hand, the role of reasoned explanation is considerably enhanced when courts are dealing with socio-economic rights. It is argued that the way forward is not judicial deference but judicial intervention which supports rather than usurps the decision-making powers of elected representatives. This is achieved by insisting on reasoned justification for distributive decisions burdening or excluding disadvantaged groups. In this way courts contribute to the democratic process, both by strengthening accountability and by ensuring that political deliberation includes those who would otherwise be silenced in the political arena.
From legal universalism to legal pluralism : expanding and enhancing the human rights approach to HIV / AIDSAuthor Kathryn Bromley ChanSource: South African Journal on Human Rights 21, pp 191 –214 (2005)More Less
Despite an identifiable trend towards more contextual, community-specific responses to the HIV / AIDS pandemic, the dominant <I>legal</I> discourse surrounding HIV / AIDS continues to be a discourse of universality, which focuses on the innate human dignity of every person living with or under the threat of the disease, and his or her right to the highest attainable standard of health. This article examines both the significant recent developments in our understanding of what the right to health entails in the context of HIV / AIDS and the obstacles that continue to impede the success of the human rights approach in actually improving the lives of persons living with HIV / AIDS in sub- Saharan Africa. Some of these obstacles are neither `universal' nor traceable to the state, but rather flow from the diverse social, material, organisational, spiritual and cultural elements that make up particular human communities. The challenge, therefore, is to consider how current legal approaches to the HIV / AIDS pandemic might be enhanced by taking more seriously these crucial and influential community elements. The discourse of legal pluralism meets this challenge, providing insights that may assist in the realisation of the essential goals of human rights law.
Author Mia SwartSource: South African Journal on Human Rights 21, pp 215 –240 (2005)More Less
It is clear that the superior courts in South Africa have wide powers to fashion remedies. The socio-economic rights debate should now shift from the justiciability of the rights to crafting appropriate remedies for their infringement. There is reason to be critical of the relief granted in the Constitutional Court's socio-economic jurisprudence. Litigants in cases such as <I>Grootboom</I> and <I>Treatment Action Campaign</I> have not received the shelter or drugs awarded in the judgments. To remedy this, the Constitutional Court should be concerned with remedies that assist in realising socio-economic rights and therefore primarily with affirmative remedies including declarations, damages, reading-in, mandatory interdicts and structural interdicts. Of these, constitutional damages and structural interdicts are particularly suitable as remedies that would increase government accountability. High Court judges are becoming increasingly adventurous in their choice of remedy and the Constitutional Court should follow suit. There is a positive new tendency on the part of the courts to move from ordering the friendly `soft' remedy of a declarator to the unfriendlier `hard' remedy of a structural interdict. An additional possibility, raised in the Eastern Cape High Court decision of <I>Kate v MEC for Welfare</I>, is to hold government officials in contempt of court for failing to obey court orders.
Author Wieland LehnertSource: South African Journal on Human Rights 21, pp 241 –277 (2005)More Less
The compatibility of African customary law and human rights has been widely debated. The issue has also been the subject of several court decisions in post-1994 South Africa. These judgments are examined in the light of the constitutional obligations of the courts. While the courts have generally taken seriously their role of promoting human rights by showing an increased sensitivity to the rights of marginalised groups such as women and children, the judiciary still has a limited understanding of customary law concepts and refers mainly to a distorted official customary law rather than living customary law. In view of the problems of legislative change of customary law, the courts will continue to play a central role in reforming customary law. With some institutional improvements, however, courts will be in a good position to reconcile customary law with human rights. Important tools for the courts to resolve conflicts between customary law and human rights under the Constitution are applying living customary law in addition to actively developing new customary law rules in line with the values of both customary law and the Constitution.
A different way of saying : on stories, text, a critical legal argument for contractual justice and the ethical element of contract in South AfricaAuthor A.J. BarnardSource: South African Journal on Human Rights 21, pp 278 –292 (2005)More Less
This article takes a critical approach to South African contract law. Employing the post-modern concept of narrative truth it is argued that one can extract from the South African Law Commission's texts on Unreasonable Stipulations in Contracts (at least) four stories about the South African law of contract. These stories are those of certainty, resistance, equity and the story of the text. The story of the text (ie, a fully legislated and delineated equity jurisdiction in contract law) was the one recommended to Parliament by the Law Commission. Parliament has however indefinitely suspended the reformative narrative since the Commission's Report was tabled. The author argues that the courts have failed to take issue with the suspension of the (reformative) narrative. Contract law still tells the story of certainty and predictability In (a tentative) conclusion it is argued that, although the stories generated by the Law Commission's investigation are organised along inescapable dualities, the (political) focus in global contract law has moved to an emphasis on the ethical element of contract. The article concludes with the writer's story, which argues (with reference to the work of Drucilla Cornell and Karin van Marle) for an ethical approach to contract which supports the concepts of communicative freedom and Cornell's exposition of the relationship between Kantian freedom and dignity. The writer's story concludes that the emphasis on the ethical element of contract enjoins contracting communities to engage in deliberative (story-telling) practices which cannot await the story of the law. Finally, issue is briefly taken with the reasons why this is a critical legal argument.
Author Jason BrickhillSource: South African Journal on Human Rights 21, pp 293 –322 (2005)More Less
Vast numbers of civil litigants in South Africa go unrepresented and unadvised during proceedings which affect their most significant interests. Section 34 of the Constitution guarantees a fair civil trial. While s 35, which entrenches the right to a fair criminal trial, expressly confers a right to legal representation in criminal matters, at least in some cases, s 34 is silent on what a `fair' civil trial requires. This article considers the scope of the right to a fair trial in civil matters, sketches the history of diverse attempts to provide civil legal aid to the poor and analyses the effectiveness of the different approaches. Against a background of glaring statistics about the cost and availability of free representation, and on numbers of law students, recent graduates and practising attorneys, it considers the feasibility of compulsory programmes for the provision of civil legal aid by the state and the private sector.
Therapeutic jurisprudence in the customary courts of South Africa (traditional authority courts as therapeutic agents) : notes and commentsAuthor Christa RautenbachSource: South African Journal on Human Rights 21, pp 323 –335 (2005)More Less