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- Volume 21, Issue 4, 2005
South African Journal on Human Rights - Volume 21, Issue 4, 2005
Volume 21, Issue 4, 2005
Author Carole LewisSource: South African Journal on Human Rights 21, pp 509 –524 (2005)More Less
Proposed constitutional amendments envisage the creation of a single apex court for South Africa. If adopted, this will change the system that has existed since 1994 in which the Constitutional Court is the court of final instance for constitutional matters and the Supreme Court of Appeal the court of final instance in matters that are not constitutional. Since the distinction between constitutional and other matters is illusory, this change is welcome. What is not welcome is the manner in which an important change to the structure of the judicial system has been introduced by stealth. It is also undesirable for the Constitutional Court as it is currently constituted to perform the role of an apex court with general appellate jurisdiction.
Author Jonathan BarrettSource: South African Journal on Human Rights 21, pp 525 –546 (2005)More Less
Dignity is a homonym, signifying both private law conceptions of valuable reputation, and the innate humanness that informs universal human rights. Natural law tradition distinguishes between these two substantially different ideas by referring to the former as <I>dignitas</I> and the latter as <I>dignatio</I>. As implicitly confirmed by certain landmark decisions, notably <I>Makwanyane</I>, the dignity guaranteed by the Constitution is dignatio. However, in <I>Jordan</I>, the Court appears to have relied on dignitas to give meaning to inherent human dignity. In this article, I argue why constitutional dignity is dignatio and outline certain consequences that arise from this. Furthermore, I argue that dignatio is principally realised when respect is shown to the human body. Such respect includes: fostering autonomy in relation to the body; rejecting a market imaginary for investigating humanness; and ensuring that the exclusion of those never yet fully included in society does not continue.
Author Jacqueline HeatonSource: South African Journal on Human Rights 21, pp 547 –574 (2005)More Less
This article evaluates the rules regarding the division of matrimonial property upon divorce from a gender-equality perspective and proposes a number of reforms. It is shown that the rigid enforcement of antenuptial contracts sometimes results in substantive gender inequality. What is required is judicial realism and an awareness of the dangers accompanying the assumption that the ordinary rules of the law of contract can be applied in the usual way to contracts between future spouses and that any resulting gender inequality can be justified by relying on the autonomy of the parties to the contract. The article further shows that forfeiture of patrimonial benefits and the limited judicial discretion to redistribute property upon divorce fall short of the object of attaining substantive gender equality. The suggested solution is the introduction of a broad judicial discretion to redistribute property upon divorce, which should be available in all civil marriages. Further, spouses are often in an unequal bargaining position when they negotiate divorce settlement agreements and the weaker spouse is often prejudiced. The suggested solution is that the court be compelled to investigate settlement agreements much more carefully and to take the circumstances in which each agreement was concluded into account. Finally, it is argued that the property which can be divided upon divorce is defined too narrowly. The narrow definition usually prejudices the spouse who is not the main breadwinner, once again resulting in substantive gender inequality. It is proposed that a broad, non- exhaustive definition of `property' is inserted in the Matrimonial Property Act 88 of 1984 and the Divorce Act 70 of 1979.
The constitutionally inspired approach to vicarious liability in cases of intentional wrongful acts by the police : one small step in restoring the public's trust in the South African Police ServicesAuthor Christopher J. RoedererSource: South African Journal on Human Rights 21, pp 575 –606 (2005)More Less
This article explores the potential impact of the courts' approaches to vicarious liability in so-called `frolic' cases on the transformation of the South African Police Services. Does the law of vicarious liability foster respect for the rule of law and for the custodians of the rule of law and further the goals of South Africa's democratic transition? The answer to this question depends greatly on one's theory or approach to vicarious liability and this is heavily influenced by the world-view underlying and supporting the law of delict and the private common law in general. In oversimplified form, the contrast is between a conservative and narrow reading of `scope of employment' which is fostered by a libertarian approach and a more broad or copious reading fostered by a post-liberal approach. The decisions of the Supreme Court of Appeal and the Constitutional Court in <I>K v Minister of Safety and Security</I> case are used to illustrate and evaluate the world-view and values that have supported the conservative approach to vicarious liability in this area and to contrast them with a new world view and set of values that underlie the new constitutional order and which justify the more copious approach. The more generous approach more closely coheres with the values and aspirations of South Africa's democratic transformation and is one small step both in holding the Police Services accountable and in restoring the public's trust in them and in the rule of law.