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- Volume 23, Issue 3, 2007
South African Journal on Human Rights - Volume 23, Issue 3, 2007
Volume 23, Issue 3, 2007
Source: South African Journal on Human Rights 23, pp 407 –408 (2007)More Less
This special issue of the SAJHR follows the recent coming into law of the Civil Union Act that opens up the centuries-old institution of marriage to same-sex couples. Amid celebration of what is seen by some as the culmination of a successful litigation strategy by the gay and lesbian rights movement, commentators and thinkers are starting to question the nature of this legislative victory. Some of these questions include the following : After the closet, what does freedom look like and what is it for? Are we even after the closet?
Author Ruthann RobsonSource: South African Journal on Human Rights 23, pp 409 –431 (2007)More Less
Conceptualizing the relationship between sexuality and democracy requires not only an interrogation of both terms, but also an exploration of the ways in which democracy seeks to accommodate and appropriate the sexual. Recent litigation and legislation regarding same-sex relationships in South Africa casts a spotlight on the interaction between sexuality and democracy, but the illumination is partial. It is necessary to explore sexuality in a broader context, including discomfiting sexual practices, as a matter of the democratic constitutional norms of equality and dignity. Otherwise, a sentimentalized version of sexuality, with certain lesbians and gay men installed as a model minority, threatens to become the democratic standard.
Author Pierre De VosSource: South African Journal on Human Rights 23, pp 432 –465 (2007)More Less
This article argues that the adoption of the Civil Union Act, extending marriage rights to same-sex couples, does not represent the inevitable and triumphant victory of a long legal and political struggle for the emancipation of gay men and lesbians in South Africa. A combination of luck, wise strategic leadership and fortitude eventually led to the adoption of full marriage rights for same-sex couples. The article traces the roots of this legal and political victory back to the debates about the inclusion of the sexual orientation clause in the South African Constitution and points to the importance of the distinct (conservative) legal strategy employed by the National Coalition for Gay and Lesbian Equality in achieving full partnership rights for all. The initial jurisprudence developed by the Constitutional Court created the basis for later legal victories and brought along judges who might have had some misgivings about the extension of marriage rights to same-sex couples had the issue arisen earlier on. The Constitutional Court's judgment in Fourie left very little room for Parliament to manoeuvre because it emphasised the symbolic value of marriage and confirmed that a 'separate but equal' partnership law for same-sex couples would not pass constitutional muster. However, this important legal victory will not have any direct and immediate bearing on the lives of many gay men and lesbians in South Africa as they face social, cultural and economic hardship in ways that cannot be easily addressed through the legal reform of partnership laws. The improvement of the lives of ordinary gay men and lesbians will go hand in hand with changes in societal attitudes towards minority sexualities, which to a large extent will be dependent on grassroots activism and organisation. Because the battle for full marriage rights was a well directed, elite-based legal battle, it failed to build a sustainable, vibrant, grassroots movement to take on this task but the symbolic space created by the same-sex marriage reform may well begin to allow for the fostering of such a movement and thus for true emancipation of gay men and lesbians.
For whom does the bell toll? The challenges and possibilities of the Civil Union Act for family law in South AfricaSource: South African Journal on Human Rights 23, pp 466 –499 (2007)More Less
The campaign to include same-sex couples within the legal institution of 'marriage' challenges us to define the goals and purposes of such a reform of family law. Three perspectives are identified in this paper : a 'formal-rights' perspective, a 'substantive-rights' perspective and a 'transformative perspective'. We argue that family law reform should seek to achieve the goals and purposes behind all three perspectives : seeking both equal legal and social status for lesbian and gay relationships through their being able to 'marry' whilst also de-centering marriage as the primary social form, allowing a diversity of relationships to be recognized in our law. The Civil Union Act passed in November 2006 has the potential to achieve all these aims through its creation of a new category (the civil union) that encompasses two relationship forms (a marriage or a civil partnership) between which couples must choose. This holds the possibility of conferring the social status of marriage on other forms of relationship, while distrupting the prioritization of marriage as the only or optimal form of valuable inter-personal relationship. However, several features of the Act (and the current legal framework relating to marriage) inhibit its potential to achieve the goals identified in this paper. These aspects are analysed and proposals made for their reform. We conclude the paper with the recognition that legislation alone cannot bring about the social transformation we argue for although the law can create an enabling environment for such a process of social change to take place.
Author Jaco BarnardSource: South African Journal on Human Rights 23, pp 500 –525 (2007)More Less
This article interrogates what it considers to be several totalitarian moments in the process that led to the legislation that authorised same-sex marriage in South Africa. The interrogation proceeds from three platforms which also form the basis of any believable theory of democratic politics, namely church / state separation, plurality and common (shared) citizenship. My argument is that Parliament - by introducing (and defending) the first draft of the Civil Union Bill (which deliberately failed to introduce a marriage regime for same-sex life partnerships) in response to the Fourie judgment - failed properly to consider all three of these fundamental aspects of democracy. This failure was complemented by more overt totalitarian moves on the part of several fundamentalist religious groups in South Africa that (ironically so) vehemently opposed the first draft of the Bill even though it did not provide for same-sex marriage. I conclude that democratic activism coupled with the strength of and commitment to the South African Constitution and to the decisions of the Constitutional Court ensured the successful evasion of these totalitarian moments while emphasising that the struggle against totalitarianism in South Africa is far from over.
Author Elsje BonthuysSource: South African Journal on Human Rights 23, pp 526 –542 (2007)More Less
This article seeks to investigate some racial and gendered dimensions of the Civil Union Act. First, it looks at the social and cultural characteristics of those lesbian and gay couples who are allowed to conclude civil unions and the racial and cultural aspects of the institution itself. In aligning civil unions so completely with the institution of civil marriage, the Civil Union Act strengthens the position of marriage as the ideal for all other relationships and implies that other forms of marriage, in particular customary marriage, are inflexible and incapable of accommodating same-sex couples. This is directly contradicted by a body of social science evidence which shows how some African cultures have created spaces in which certain forms of same-sex activity are allowed, or simply ignored. Moreover, the Act is premised on a particular form of global gay identity which does not accord with the identities or practices of many African people who have same-sex relationships. The second part of the paper deals with gender. It argues that the acceptance of same-sex practices within African communities is often conditional upon the adoption of very stereotypically patriarchal roles and identities within these relationships. This is similar to the way in which the Civil Union Act reserves legal recognition for those same-sex relationships which mimic marriage. Finally, a lack of co-operation between gender activists and same-sex activists around the contents of the Act has resulted in a failure to focus simultaneously on gender and sexual orientation. This, in turn, has created the possibility of disadvantage, both for women and for people who have relationships with others of the same sex.
The right to water, privatised water and access to justice : tackling United Kingdom water companies' practices in developing countriesSource: South African Journal on Human Rights 23, pp 543 –562 (2007)More Less
As states are increasingly urged to privatise water supply and delivery by the Bretton Woods institutions, there are no additional norms to hold multinational corporations accountable to anyone but their shareholders. Though there is a human right to water, if multinational corporations violate that right the victims' access to the courts may be hampered by the lack of financial resources to gain redress. To this extent, privatisation is eroding human rights implementation. Strategically, it may be worthwhile to consider litigating in the United Kingdom's courts where the 'interest of justice' so demands, even though there is a forum for adjudication in the country where the violation took place.
Author Liz PicarraSource: South African Journal on Human Rights 23, pp 563 –569 (2007)More Less
Following in the footsteps of several cases in which the constitutionality of existing provisions in our legislation have been successfully challenged on the grounds of constituting unfair discrimination against same-sex life partners, on 23 November 2006 the Constitutional Court found s 1(1) of the Intestate Succession Act 81 of 1987 unconstitutional in that it unfairly discriminated against same-sex life partners.
Enforcing access to information and privacy rights : evaluating proposals for an information protection regulator for South Africa : current developmentsSource: South African Journal on Human Rights 23, pp 570 –586 (2007)More Less
The South African Law Reform Commission has proposed legislation to regulate what is variously referred to in international jurisdictions as 'data protection' and 'information privacy protection'. The Law Commission's own formulation of the basic subject-matter of its proposals is 'protection of personal information'. It has accordingly short-titled its proposed legislation, the Protection of Personal Information Act. If this name sticks and the legislation is enacted, it will in all likelihood, given the South African fondness for clunky acronyms, become known as the POPIA. Personal information (a term of art meaning information, irrespective of the medium in which it appears, that reveals something about someone) is, in the Commission's proposals, to be protected by a complex regime of rights and remedies aimed at regulating its collection and dissemination and the uses to which it may be put. Along the familiar lines of the European model for data-protection regimes, the Commission's proposed legislation centres on a set of 'information protection principles' which flesh out a general and higher-level requirement that personal information must be processed 'in a reasonable manner in order not to infringe the privacy of the data subject'.
Author Narnia Bohler-MullerSource: South African Journal on Human Rights 23, pp 587 –590 (2007)More Less
It is apt that the first comprehensive book on gender and the law to be published in South Africa is edited by Elsje Bonthuys and Cathi Albertyn, both leading authors, academics and activists in the field. Bonthuys and Albertyn have used their vast knowledge and experience to present to readers an important and long-awaited volume - with contributions from a number of local feminist legal scholars - that addresses (most of) the central issues related to women, gender analysis and the law within the South African context.