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- Volume 23, Issue 1, 2007
South African Journal on Human Rights - Volume 23, Issue 1, 2007
Volume 23, Issue 1, 2007
Author Kerry WilliamsSource: South African Journal on Human Rights 23, pp 1 –33 (2007)More Less
Pharmaceutical price regulation is highly politicised, both globally and in South Africa. As a result misinformation and rhetoric is common. Regulators (whose duty it is to represent the public interest) face difficult policy decisions and are subject to pressure from all stakeholders. Despite these challenges, complex economic and legal solutions may be employed to ensure the accessibility of affordable medicines in the developing world. The nature of the pharmaceutical industry gives rise to unique economic problems which may be resolved through Ramsey optimal pricing (also referred to as differential pricing) which allows pharmaceutical manufacturers to price according to the price sensitivity of consumers, thereby ensuring that poorer consumers can afford essential medicines. This must be done within the legal flexibilities of the TRIPS Agreement. This article examines the theory of differential pricing, how it is constrained by TRIPS and how it is beginning to be implemented by way of international agreements and through specific policy choices made by national regulators. Examples from Europe and South Africa are considered and criticised. The European tiered pricing regulation offers the possibility of accessible and affordable medicines in the developing world but is vastly underutilised. South African law and policy makers ought to consider the principles of differential pricing in greater detail so that it may be worked into the current regulatory framework. In the interim, there is some potential in the possibility of granting compulsory licences.
Source: South African Journal on Human Rights 23, pp 34 –67 (2007)More Less
The Constitution of the Republic of South Africa, 1996 allows the creation of independent educational institutions and permits such institutions to enforce admissions policies that discriminate between learners who wish to participate in the affairs of a given linguistic and cultural community and those who do not wish to participate in or advance that community's vision of the good life. When it comes to public schools, however, the state's tolerance for discriminatory language policies of any kind is extremely limited and rightly inclines in favour of the language preferences of learners from historically disadvantaged communities. A proper reading of s 29(2) of the Constitution supports the following propositions. First, all learners have the right - where practicable - to receive an education in their preferred language of instruction. Second, where a sizeable cohort of learners does not have ready access to a public school that offers them adequate instruction in their preferred medium of instruction, neither the School Governing Body nor the principal of a single-medium school can exclude such a cohort of learners by means of an admissions policy that seeks to privilege a particular language. Third, although s 29(2) recognises that single-medium schools are an acceptable form of public school, the Constitution's commitment to equity and historical redress means that the right of all learners to a basic education in their preferred language of instruction at public schools will generally trump any individual school's pre-existing preference for linguistic homogeneity. Only where sufficient resources exist to ensure that the cohort of South African learners in question will receive an adequate, and for all intents equal, education in their preferred language of instruction at another public school will the state be obliged to accommodate a single-medium school's desire to remain linguistically homogeneous.
Author Kevin IlesSource: South African Journal on Human Rights 23, pp 68 –92 (2007)More Less
The wording of the general limitations clause in s 36 of the Constitution of the Republic of South Africa, 1996 differs from that used in its predecessor, the interim Constitution. The Constitutional Court of South Africa has nevertheless continued to apply the limitations jurisprudence developed under the interim Constitution to the 1996 Constitution. While endorsing a two-stage approach to rights adjudication the Constitutional Court has, however, failed to state which tasks should be allocated to which stage of the rights adjudication procedure. To avoid requiring courts to engage in a constitutionally unguided narrowing of rights, all balancing and proportionality enquiries should be reserved for the second stage of the process, the limitation stage. Contrary to certain dicta of the Constitutional Court, the limitation stage should not involve an enquiry into the importance of the right which implies the existence of a hierarchy of rights in the Constitution. Nor should the least restrictive means test required by s 36(1)(e) be treated as a threshold enquiry. Although the Constitutional Court has held that every limitation is subject to s 36, it is also not clear from the structure of s 36 that it is capable of applying to all the rights in the Bill of Rights.
Author Charles Manga FombadSource: South African Journal on Human Rights 23, pp 93 –115 (2007)More Less
In February 2006 the Constitution of the Kingdom of Swaziland came into effect. The new Constitution contains many progressive ideas but it also retains many of the features that have drawn international attention to the excesses of the absolute and authoritarian powers of the Swazi King. Despite its veneer of constitutionalism and constitutional legitimacy, the new Constitution does little to protect the Swazis against the excesses of the authoritarian tendencies and practices of their King and his officials. The Constitution fails to reconcile the monarchy with modern constitutionalism because it neither provides the barest minimum conditions for a functioning constitutional monarchy nor for a democratic order.
Deconstructing the definition of 'disability' under the employment equity act : legal deconstructionAuthor Charles NgwenaSource: South African Journal on Human Rights 23, pp 116 –156 (2007)More Less
This is the second instalment of a two-part article on the definitional construction of disability under s 6(1) of the Employment Equity Act 55 of 1998. Part I explored the social construction of disability. It argued that a social construction provides meaningful paradigms in which to understand the epistemology of, as well as formulate normative responses to, disability. Because disability is more than just individual pathology, extrinsic disabling factors are integral to a meaningful interpretation of disability. The main thesis in Part I was that the medical model is a limited paradigm for transacting disability in an equality context, and that the social model offers a more nuanced and holistic approach. Part II builds on Part I and appropriates the social construction of disability to the definitional construction of disability under s 6(1). The essential premises of Part II are that both the medical and social models are essential tools for not only understanding, but more significantly, shaping the legal construction of disability. Where the legislative objective is to prevent discrimination, especially, a construction of disability that fails to transcend the medical model risks not only frustrating, but also distorting, in a fundamental manner, the rationale for anti-discrimination law as a tool for combating systematic disadvantage arising from stigma, prejudice, stereotypes or indifferent attitudes. To avoid anomalies in discrimination law or creating a hierarchy of equalities among protected groups, disability should be interpreted in a manner that, qualitatively, enjoys parity with other protected categories such as race, sex and gender.
Author Marius PieterseSource: South African Journal on Human Rights 23, pp 157 –179 (2007)More Less
Apart from their direct application against the state, the justiciability of socioeconomic rights also requires the transformation of those aspects of private law that regulate relationships which are crucial for their effective enjoyment. This is acknowledged by the Constitution of the Republic of South Africa, 1996, which determines that rights may sometimes bind private parties and requires courts to develop the common law in accordance with the spirit, purport and objects of the rights in the Bill of Rights. Common-law development is a viable remedial paradigm for the horizontal enforcement of socio-economic rights. This is particularly because the value-based development of common law in the course of private-law litigation is often regarded as an uncontroversial aspect of the judicial function, even in legal cultures to which the notion of rights-based judicial review is novel or alien. To illustrate the necessity of infusing the private law realm with public law values associated with the protection of socio-economic rights, the article considers the effect of the constitutional right of access to health care services, on the body of South African private law pertaining to the regulation of the doctor-patient relationship. After making a case for the seepage of public law norms into the private-law regulation of this relationship, the article points to certain features of such regulation that appear in need of reconceptualisation in light of relevant constitutional guarantees. It then suggests certain modifications to the existing legal position and critically discusses case law in which similar developments have been contemplated.
The amended legal framework for school fees and school funding : a boon or a barrier? : notes and commentsAuthor Faranaaz VeriavaSource: South African Journal on Human Rights 23, pp 180 –194 (2007)More Less
Nepal's new constitution and fundamental rights of minorities - lessons of the South African experience : notes and commentsAuthor Edwin CameronSource: South African Journal on Human Rights 23, pp 195 –204 (2007)More Less
Author Owen Mtende MhangoSource: South African Journal on Human Rights 23, pp 205 –207 (2007)More Less