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- Volume 22, Issue 3, 2006
South African Journal on Human Rights - Volume 22, Issue 3, 2006
Volume 22, Issue 3, 2006
Moral luck : exploiting South Africa's policy environment to produce a sustainable national antiretroviral treatment programmeSource: South African Journal on Human Rights 22, pp 337 –379 (2006)More Less
What kinds of social policy interventions will enable South Africa to offer a universal, free and sustainable antretroviral treatment programme? Some commentators assert that government's best chance at offering such a programme will require the use of <i>compulsory</i> licenses and that the state's failure to make use of such a weapon is a failure to discharge its constitutional duties. The authors demur. The threat of a compulsory license is only as good as the ability to make use of such a license. South Africa currently lacks the basic science community, reverse engineering capacity and fine chemicals industry necessary to make good on such a threat. The government's best hope for discharging the duties imposed by the Constitution is a systematic, structural intervention: the implementation of a socio-industrial policy that leverages existing industrial capacity and <i>voluntary</i> licenses in a manner that generates price reductions and offers an uninterrupted sustainable local supply. However, voluntary licenses will only create downward pressure on prices when South Africa is able to establish a robust generics pharmaceutical industry. Such an industry can be created with appropriate tax relief, investment credits, technology transfer and assured access to active pharmaceutical ingredients. South Africa's industrial, legal and financial resources can thereby be profitably exploited in a manner that progressively achieves a comprehensive and coordinated antiretroviral treatment programme.
Author Narnia Bohler-MullerSource: South African Journal on Human Rights 22, pp 380 –404 (2006)More Less
The right to equality in s 9 of the Constitution of the Republic of South Africa, 1996 has become one of the cornerstones of South African constitutional jurisprudence. For this reason, the Equality Courts created by the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 have a vital role to play in the postapartheid legal landscape. These courts show great promise, but to date have not played the pivotal role that they should in developing a more just society, despite the presence of some new and innovative ways of resolving equality disputes. The promise thus remains unfulfilled, whilst, at the very same time, these courts continue to offer us hope for a future empty of discrimination and intolerance. This future may be utopian, but that is the nature of justice as we strive to find limits to the violence of law and search for ethical answers to difficult questions.
Procedural fairness and reasonable administrative action within the social assistance system : implications of some settled class actionsAuthor Nick De VilliersSource: South African Journal on Human Rights 22, pp 405 –438 (2006)More Less
This article discusses five High Court class actions brought under the Social Assistance Act 59 of 1992, dealing with the rights to procedurally fair and reasonable administrative action under the Promotion of Administrative Justice Act 3 of 2000. The cases have contributed significantly to the shaping of the policies and practices of the administration of social assistance. However, because in each case the state consented to the terms of each court order, these orders have not been reported and are not widely known. The cases deal with the following issues: the right to appeal against the conditional award of a grant; the lapsing of a grant without a hearing where the basis for the lapsing is disputed; the right to a prior investigation before administrative action is taken; unreasonable application requirements; the need for policy guidelines when exercising a discretion affecting fundamental rights and the reasonable content of the right of access to social assistance for people in desperate need. A number of themes emerge from the cases: shortcomings in procedural fairness in the regulations under the Social Assistance Act; the absence of measures to minimise the disruption of benefits where internal remedies arising from the unlawful stoppages of grants are pending; the duty arising from errors in the population register; the state's failure to implement these other court orders; the need to integrate court orders into the state's internal management.
South African nationals abroad and their right to diplomatic protection - lessons from the 'mercenaries case'Source: South African Journal on Human Rights 22, pp 439 –472 (2006)More Less
The South African Constitutional Court's judgment in the 'mercenaries case' (<i>Kaunda v President of the Republic of South Africa</i>) is critically considered, particularly its conclusion in respect of the so-called right to diplomatic protection. The majority decision does little more than underline that a South African citizen is entitled to write a letter or in some other manner ask his or her government for assistance. To the extent that this 'right' has any meaning, it appears to lie in the correlative obligation placed on the state once it has received its national's request. However, the obligation imposed on the state is - by the Court's low-level rationality test - watered down to the point of being virtually meaningless in the context of diplomatic protection claims. The Court's approach shows undue deference to the executive in the realm of foreign relations and means that judges will have little reason to look critically and astutely at decisions to refuse diplomatic protection. There is more to support in the minority judgment delivered in the case which suggests (albeit not as strongly as it could) that there may be a duty on the government to do what it reasonably can within the confines of international law to protect the rights of nationals as they are guaranteed in the Constitution of the Republic of South Africa, 1996, even when such nationals are abroad.
Author Marius PieterseSource: South African Journal on Human Rights 22, pp 473 –502 (2006)More Less
Notwithstanding the Constitutional Court of South Africa's rejection of a minimum core approach to the enforcement of the socio-economic rights in the Constitution of the Republic of South Africa, 1996, it is possible to interpret these rights as entailing individual entitlements that may in appropriate circumstances be claimed against the state. Such an entitlement-orientated approach is mandated by the rights-status and justiciability of socio-economic rights. It enables socio-economic rights to connect concretely to the needs that they purport to satisfy, contributes to individual empowerment and to the alleviation of individual hardship and facilitates more broadbased, structural transformation. Establishment of a minimum core is not the only, or necessarily the best, manner in which to identify and enforce individual entitlements underlying socio-economic rights. Focusing on the right to have access to health care services in s 27(1)(a) of the Constitution, it is shown that the Constitutional Court is starting to retreat from its stance against affirming and enforcing individual entitlements inherent to socio-economic rights. The Court has acknowledged the existence of equality-based entitlements to share in the benefits of socio-economic laws and policies, entitlements to the negative protection of socio-economic rights and entitlements to meaningful access to socio-economic amenities. It is argued that the recognition of more 'positive' entitlements, in appropriate circumstances, would not detract from the Court's 'reasonableness approach' to the enforcement of socioeconomic rights. In fact, a notion of individual, positive entitlement is latent in the application of the reasonableness approach in the <i>Treatment Action Campaign</i> decision. This entitlement should be explicitly articulated and developed.
The Korean cloning scandal and embryonic stem cell research in South Africa : can the National Health Act protect women's health and well-being? : notes and commentsAuthor Emeka Polycarp AmechiSource: South African Journal on Human Rights 22, pp 503 –517 (2006)More Less