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- Volume 22, Issue 2, 2006
South African Journal on Human Rights - Volume 22, Issue 2, 2006
Volume 22, Issue 2, 2006
Author Brian FlanaganSource: South African Journal on Human Rights 22, pp 173 –196 (2006)More Less
A treatment of recent criticism of judicial review concentrating on its theoretical consistency, scope and the use it makes of factual premises regarding the composition of judicial argument and the practice of democratic assemblies. Focussing on the work of Jeremy Waldron and Mark Tushnet and to a lesser extent that of Thomas Poole, it concludes that there are serious difficulties with the liberal challenge on each front.
The right to Social Security of people living with HIV / AIDS in the context of public sector provision of highly active Antiretroviral TherapyAuthor Marlise RichterSource: South African Journal on Human Rights 22, pp 197 –223 (2006)More Less
The Social Assistance Act 13 of 2004 and its attendant Regulations establish criteria for the award of grants to people who by virtue of their disability cannot be employed. In terms of these criteria, a person with HIV / AIDS receiving a disability grant, who manages her condition with Highly-Active Antiretroviral Therapy (HAART), will no longer meet the criteria for this form of social assistance. The disability grant is often the only source of income for such a person and, in many instances, for her extended family. A number of people living with HIV / AIDS whose health has improved because of HAART are thus placed in the distressing situation of having to choose between income and health - certainly a dreadful dilemma. This article considers the constitutionality of the Social Assistance Act and its Regulations by evaluating its provisions against s 27(1)(c) of the Constitution of the Republic of South Africa, 1996. Possible responses to the dilemma are considered in relation to the Bill of Rights, existing government policy and socio-economic rights jurisprudence.
Child rights at the core : the use of international law in South African cases on children's socio-economic rightsSource: South African Journal on Human Rights 22, pp 224 –260 (2006)More Less
The Constitution of the Republic of South Africa, 1996, explicitly protects the socioeconomic rights of children and adults. When interpreting these provisions in the Bill of Rights, the Constitution states that international law 'must be considered'. This refers to binding and non-binding international legal instruments such as the treaties and the General Comments made by the supervisory bodies. This article argues that the courts have an essential role to play in the realisation of international human rights law. Analysis of the judgments of the South African courts shows however that there are flaws in their use and enforcement of international and regional human rights law. Analysis of the courts tend merely to mention some of the applicable international law provisions without considering them in sufficient detail. Binding international law relevant to the rights of children is not given the same attention as non-binding international law. It is argued that the courts have not properly defined the scope and content of children's socio-economic rights. Recommendations are made as to how the courts could strengthen their role in promoting the socioeconomic rights of children through the considered use and enforcement of international law.
Court of first instance? : towards a pro-poor jurisdiction for the South African Constitutional CourtAuthor Jackie DugardSource: South African Journal on Human Rights 22, pp 261 –282 (2006)More Less
Despite being premised on a transformative constitution, the South African Constitutional Court has not always functioned as an institutional voice for the poor. This is apparent in the relatively low number of cases brought by poor people, as a percentage of the total number of cases in which decisions are handed down by the Court. This article examines the extent to which the Court can in fact be said to have a pro-poor jurisdiction. In particular, it considers whether the Court's practice regarding direct access applications adequately facilitates the uptake of issues affecting the fundamental rights of poor people. The Court's record indicates that it has failed to utilise the direct access mechanism to allow constitutional matters to be brought directly to it by poor people who have been unable to secure legal representation. In so doing, the Court has failed to live up to its transformative promise. Two recent decisions of the Court - <i>Mnguni v Minister of Correctional Services and De Kock v Minister of Water Affairs and Forestry</i> - are used to indicate how the Court might pursue a different modus operandi to develop a pro-poor jurisdiction.
Reconciling regulation or confronting inconsistency? : conflict between national and provincial legislationAuthor Victoria BronsteinSource: South African Journal on Human Rights 22, pp 283 –300 (2006)More Less
What is an appropriate test for determining whether there is conflict between provincial and national legislation in the areas listed in Schedule 4 of the Constitution of the Republic of South Africa, 1996? Although the direct conflict test seems to resonate with s 150 of the Constitution in that it minimises legislative conflict, it is crudely onedimensional in its attitude to legislation and it conduces to unconsidered overregulation. Pre-emption, which counters some of these problems in other legal systems, is ill-suited to the South African constitutional design. There is another way. Legal interpreters should see legislative silence as deliberate in appropriate circumstances which includes being open to finding conflict when 'limits are shifted'. This approach coheres with the Constitution's design for legislative conflict which has s 146 of the Constitution at its centre. It also protects regulatory space and prevents random overregulation. The courts have a dual role in relation to conflict. They need to continue to support and be respectful of the provinces. On the other hand national unity and indivisibility of the Republic need to be unequivocally protected. As part of the principle of co-operative governance, courts have residual power to invalidate protectionist provincial legislation in the absence of conflicting national legislation.
Adjudicating the socio-economic rights in the South African Constitution : towards 'deference lite'?Author D.M. DavisSource: South African Journal on Human Rights 22, pp 301 –327 (2006)More Less
The record of adjudicating the socio-economic rights in the Constitution of the Republic of South Africa, 1996 reveals a judicial and academic retreat into administrative law and the occasional, mechanistic application of international law. The Constitutional Court has been reluctant to impose additional policy burdens on government or exercise supervision over the executive. This approach has its source not only in the restrictive legal repertoire employed by the Court, but also in the political and economic context in which current legal practice is located. The Constitution invites a transformation of legal concepts. This requires breaking down the division between negative and positive rights, in addition to the adoption of different remedies. The focus should move from ss 26, 27 and 28 of the Constitution towards the distributional implications of all constitutional rights. There is already a small but significant body of decisions of the Court which support the development of more fused conception of rights, including the recognition that the concept of legality may impose positive obligations on the state.
Remarks on the South African Law Commission's state-based : approach to popular justice : notes and commentsAuthor John HundSource: South African Journal on Human Rights 22, pp 328 –336 (2006)More Less