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- Volume 22, Issue 4, 2006
South African Journal on Human Rights - Volume 22, Issue 4, 2006
Volume 22, Issue 4, 2006
Author Stuart WilsonSource: South African Journal on Human Rights 22, pp 535 –562 (2006)More Less
A case study of the exercise of judicial discretion in the enforcement of the right to protection from arbitrary evictions in s 26(3) of the Constitution of the Republic of South Africa, 1996. The article analyses analysing the implementation and impact of court-sanctioned forced eviction and relocation of Mandelaville, a community of some 6000 informal settlers in Johannesburg, during early 2002. The analysis emphasises the adverse impact of the relocation on access to livelihoods and social services in the relocated community. It is argued that the forced relocation could have been prevented, or its impact ameliorated, had the judge ordering the eviction exercised his discretion in a manner which took more seriously the needs and vulnerabilities of South Africa's urban poor. Enormous power is assigned to judges in adjudicating applications for the eviction of large numbers of very poor people. That power needs to be exercised with a deep sensitivity to the particular needs of South Africa's poor.
Source: South African Journal on Human Rights 22, pp 563 –596 (2006)More Less
In South African Broadcasting Corporation Ltd v National Director of Public Prosecutions, the Constitutional Court of South Africa dismissed an appeal against a decision of the Supreme Court of Appeal (SCA) denying the national public broadcaster the opportunity to record and broadcast proceedings of a five-day criminal appeal. The majority of the Court held that the SCA's exercise of discretion (including the formulation of a legal test) could only be interfered with if it was a 'demonstrable blunder.' Not only did the majority fail to appreciate that, for sound constitutional reasons, no deference ought to be due to the SCA's decision, it granted more than the usual deference by making use of a novel 'demonstrable blunder' standard. Though some of the possible reasons underlying the majority's use of this new form of appellate review (including a fear that full media access might trivialise the court processes) may have been understandable, such reasons were either legally irrelevant or untenable. The SABC decision is part of a trend whereby the courts and the legislature, often dismayed by incidents of apparent unprofessional conduct by the media, have progressively eroded the constitutional right to a free press. This disquieting trend is based on a misunderstanding of the role of a free press in a constitutional democracy and could ultimately serve to exacerbate any lack of adequate press coverage of the government and the judiciary. Nevertheless, a proper understanding of the 'open justice principle,' recognised by the Constitutional Court in SABC as a constitutional imperative, represents a potential solution to the observed diminution of free press rights.
Author Laurie W.H. AckermannSource: South African Journal on Human Rights 22, pp 597 –612 (2006)More Less
Much of the disagreement and still prevalent confusion about the legal and constitutional meaning of concepts such as 'equality', 'equal,' or 'unequal' is due to inadequate linguistic analysis. These concepts, in order to be meaningful, cannot be used as predicative nouns or adjectives but only as attributive nouns or adjectives ('predicative' and 'attributive' being used in the logical rather than the grammatical sense). The correct approach requires an object to be specified (for example, 'strength', 'musicality', 'intelligence' or 'human dignity / worth') in order that the appropriateness of the attributive term ('equal', 'un-equal', 'equality') be judged. Those who would reject 'human worth' ('dignity', 'menswaardigheid', 'Menschenwürde') as the object and the answer, ought at least to come up with an alternative.
Deconstructing the definition of 'disability' under the Employment Equity Act : social deconstructionAuthor Charles NgwenaSource: South African Journal on Human Rights 22, pp 613 –646 (2006)More Less
The Employment Equity Act 55 of 1998 lists 'disability' as one of the grounds of unfair discrimination. In Chapter III of the Act, 'people with disabilities' are one of the designated groups and, thus, beneficiaries of affirmative action measures. This is the first part of a two-part article that seeks to contribute to the understanding of the definitional aspects of disability status under the Employment Equity Act. Using, in part, the decision of the Labour Court in IMATU v City of Cape Town as a pivot for discussion and drawing from disability theories and comparative law, the article teases out the judicial interpretation of disability status under the Employment Equity Act. A successful judicial interpretation of disability status, including the determination of the effect of mitigating measures under the Employment Equity Act must, perforce, take into cognisance the social construction of disability. Theoretical frameworks on the phenomenon of disability, and in particular the development of the 'medical model' and the 'social model' as paradigms for understanding the social, political, and cultural construction of disability offer courts rich insights into the understanding of the legal construction of disability, including the definitional construction of disability status under the Act.
Substantive protection of legitimate expectations in the Promotion of Administrative Justice Act : Tirfu Raiders Rugby Club v SA Rugby Union : notes and commentsAuthor Richard StaceySource: South African Journal on Human Rights 22, pp 664 –672 (2006)More Less
Defending the Human Spirit : Jewish Law's Vision for a Moral Society, Warren Goldstein : book reviewAuthor D.M. DavisSource: South African Journal on Human Rights 22, pp 718 –723 (2006)More Less
Author Danwood Mzikenge ChirwaSource: South African Journal on Human Rights 22, pp 724 –727 (2006)More Less