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- Volume 24, Issue 1, 2008
South African Journal on Human Rights - Volume 24, Issue 1, 2008
Volume 24, Issue 1, 2008
From ambivalence to certainty : norms and principles for the structural interdict in socio-economic rights litigation in South AfricaAuthor Christopher MbaziraSource: South African Journal on Human Rights 24, pp 1 –28 (2008)More Less
The parsimonious approach of the Constitutional Court in using the structural interdict in socio-economic rights cases has both been critiqued and also contrasts with that of the High Courts. Moreover, the Court has neither given a principled basis for its rejection and use of the remedy nor laid down any norms and principles for determining when the remedy is appropriate. Starting from these bases, this article highlights norms and principles which could guide the courts in determining when the structural interdict is appropriate, and its modalities. Drawing upon Amersican jurisprudence, the article proposes norms and principles including utilisation of the structural interdict in a graduated manner as a remedy of last resort; participation of all stakeholders; judicial impartiality and independence; reasoned decision making; remediation which enforces the substantive norms; and flexibility.
Author Loretta FerisSource: South African Journal on Human Rights 24, pp 29 –49 (2008)More Less
This article supports the principled proposition that all human beings have a fundamental right to an environment that is ecologically sound and does not threaten health or well-being. It also takes the position that we need a solid and detailed understanding of the content of the environmental right in the South African Constitution. It is particularly imperative that such content reflect the particular context within which the right operates. The article argues, however, that the content and value of South Africa's environmental right, remains largely undefined. It reviews a number of decisions which have provided opportune moments to give content to the right, and in this regard focuses on two areas where jurisprudence may enhance the application of an environmental right. These developing principles of environmental law and interrogating the relationship between the environmental right and other constitutionally-entrenched rights.
Author Mia SwartSource: South African Journal on Human Rights 24, pp 50 –70 (2008)More Less
Almost none of the leaders of the apartheid government apologised during the TRC process. This article argues that it is not too late for these leaders to apologise, and that one should be open to the transcendent value of apologies. Although apology does not fit easily into our individualistic, adversarial legal culture, it does fit into the paradigm of restorative justice. As a form of symbolic reparation, apology can be part of a package of restorative measures. Symbolic reparations (such as apology) have been ordered by courts both in South Africa and internationally. Because of the essentially performative nature of apologies, even incomplete or insincere apologies have restorative value. Incomplete apologies can have value if the apologist exhibits shame or if the apology involves public humiliation. The foot washing gesture of Adriaan Vlok is an example of an incomplete apology with restorative results.
The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation : a landmark or window-dressing? An analysis with special attention to the situation of indigenous peoplesAuthor Ellen DesmetSource: South African Journal on Human Rights 24, pp 71 –103 (2008)More Less
The growing international responsiveness to the rights of victims materialised in 2005 in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for the Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (BPGs). Their analysis leads to a nuanced conclusion. On the one hand, the BPGs significantly contribute to strengthening victims' rights, as they adopt a victim-oriented perspective and provide a structured enunciation of their rights. They may inspire the African human rights system and national states in the development of their jurisprudence and policy on remedies. On the other hand, the expert text has been substantially weakened during the intergovernmental consultations. In some aspects, the BPGs even fall short of their intention to uphold international standards. Looking at the instrument through indigenous peoples' eyes unveils some specific deficiencies. Particularly regrettable is the reluctance of states to incorporate provisions concerning collective rights, whereas it is essential for indigenous peoples to be able to file a collective claim and receive reparation collectively. The challenges for the future lie first, in the implementation of the BPGs within national legal systems and second, in a further strengthening of the international norms on victims' rights, preferably by working towards a binding convention on the rights of victims of all human rights violations.
Election management bodies in the SADC Region - an appraisal of the independence of Botswana's Independent Electoral Commission : current developmentsAuthor Badala Tachilisa BaluleSource: South African Journal on Human Rights 24, pp 104 –122 (2008)More Less
It is now widely accepted that elections should be organised by an independent body. Over the last decade, there has been a worldwide swing towards independent electoral commissions as the preferred form of election management bodies (EMBs). It has been observed that over 52 per cent of EMBs around the world today are said to be independent. In emerging democracies, the trend has been to establish independent election management bodies as a way of building the confidence of the electorate and political parties in the electoral process.
A review of measures in place to effect the prevention and combating of torture with specific reference to places of detention in South Africa : current developmentsSource: South African Journal on Human Rights 24, pp 123 –143 (2008)More Less
South Africa's ratification of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1998 did not bring an end to the torture and ill-treatment of people deprived of their liberty. South Africa has furthermore not criminalised the act of torture, as is required of states parties under art 4 of CAT. This is a serious shortcoming, as has been commented on by the Committee against Torture in its concluding remarks on the state party's Initial Report. Criminalising torture is, however, only one important strategic component of preventing and combating torture and cruel, inhuman and degrading treatment or punishment.
School searches and drug testing : are they an infringement of learners' rights and constitutional values? : current developmentsAuthor Raj MestrySource: South African Journal on Human Rights 24, pp 144 –156 (2008)More Less
The need to reform Kenya's law on street vending : from policing to facilitation : current developmentsAuthor Nixon SifunaSource: South African Journal on Human Rights 24, pp 157 –179 (2008)More Less
Street vending is one of the oldest trades in the world. It is the offering of merchandise to the public by small scale vendors for sale without having a permanent built-up structure. Street vending has for a long time been an informal sector trade, even though it is gradually transforming into a formal sector trade in many parts of the world. This is because it is increasingly the subject of legal regulation and protection, as, for instance in India where it has been accorded legal recognition even by the highest judicial organ - the Supreme Court.
Author Tshepo MadlingoziSource: South African Journal on Human Rights 24, pp 180 –186 (2008)More Less
Transitional Amnesties in South Africa is an expansive analysis of transitional amnesties. Bois-Pedain has offered all of us concerned with issues of transitional justice a comprehensive framing of issues and debates in the field of transitional amnesties. It is certainly a must-read for policy makers, consultants, academics and activists.