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- Volume 24, Issue 2, 2008
South African Journal on Human Rights - Volume 24, Issue 2, 2008
Volume 24, Issue 2, 2008
Author Arthur ChaskalsonSource: South African Journal on Human Rights 24, pp VIII –XXI (2008)More Less
This issue of the journal contains articles based on papers from the symposium held at the Law School of the University of the Witwatersrand celebrating the work of Justice Edwin Cameron, a respected member of our judiciary, as well as papers which were especially commissioned for this issue.
Source: South African Journal on Human Rights 24 (2008)More Less
At a time when the personal and professional conduct of judges is increasingly scrutinised and when there is much talk of real and perceived threats to judicial independence and impartiality, it is fitting to devote this special issue of the Journal to critical deliberation over various aspects of the judicial role.
Source: South African Journal on Human Rights 24, pp 187 –213 (2008)More Less
At its 52nd National Conference held in Polokwane from 16-20 December 2007, the African National Congress adopted a strongly-worded resolution calling for the transformation of the judiciary to be expedited. The judiciary has also recently attracted controversy due to the ongoing legal travails of ANC President, Jacob Zuma, and allegations regarding improper conduct on the part of Hlophe JP. This is therefore an opportune juncture to step back and consider the transformation of the judiciary over the past fifteen years of South Africa's constitutional democracy. The article commences with a brief discussion of the role of the judiciary under apartheid. In light of this, the following issues are discussed as components of judicial transformation: the process whereby judges are appointed; the need to change the attitudes of the judiciary; the need to foster greater judicial accountability; and the need for a more efficient judiciary. The conclusion reached is that post-apartheid South Africa has generally made impressive strides towards transforming its judiciary while respecting judicial independence and the separation of powers. However, recent legislative activity, resolutions and statements of the ANC and its alliance partners have not always heeded this approach. Judicial transformation must continue to be pursued but in a manner that is not counter-productive to the constitutional project as a whole.
Courts and the poor in South Africa : a critique of systemic judicial failures to advance transformative justiceAuthor Jackie DugardSource: South African Journal on Human Rights 24, pp 214 –238 (2008)More Less
Under apartheid the judiciary failed to meaningfully confront a racially-divided South Africa in which civil and political rights were denied to the majority of South Africans. The apartheid judiciary was able to rationalise a generalised failure to craft socially just rulings by claiming that law was distinct from morality. In the constitutional era judges are not afforded the luxury of amorality. The Constitution, which is an explicitly moral document, binds the judiciary (along with the legislature, the executive and all organs of state) to upholding constitutional values. The judiciary is expected to 'promote the values that underlie an open and democratic society based on human dignity, equality and freedom' and it is required always to 'promote the spirit, purport and objects of the Bill of Rights'. How, then, has the post-apartheid judiciary dealt with the challenges of adjudication in an increasingly socio-economically divided society in which poverty is widespread and inequality is escalating? As an institution, the judiciary is found to have failed to advance transformative justice in critical systemic ways. Specifically, the judiciary has failed to improve access to legal representation for the poor (by not delineating a comprehensive right to legal representation at state expense in civil matters and under-utilising the in forma pauperis procedure in courts), and to promote public interest litigation (through maintaining a practice of wide discretion in awarding costs orders, including awarding costs against winning public interest organisations, and as a result of the Constitutional Court's reticence to allow direct access, even for clear matters of public interest). Finally, the weak socio-economic rights record of the Constitutional Court has further diminished the capacity of the judiciary to act as an institutional voice for the poor.
Author Elsje BonthuysSource: South African Journal on Human Rights 24, pp 239 –262 (2008)More Less
Taking Judge Edwin Cameron's public revelation of his HIV status and the lawsuits brought by Judges De Vos and Satchwell as a starting point, this article examines and critiques the construction of the public / private dichotomy in relation to judges and judging, focusing specifically on its gendered implications. It asks how the public / private dichotomy either enables or constrains women from becoming and being recognised as judges. It does so by using three concepts which are marginal to traditional legal scholarship but which, nevertheless, illuminate the problem of gender equality on the bench in interesting ways. They are first, visual representations of judges in films and judicial portraiture; secondly, the concept of authority; and finally, the ideal of impartiality. Despite the influence of the public / private dichotomy, there are nevertheless indications that women judges actively contribute to the transformation of gendered legal discourses. Evidence for this ability is found by comparing the voting patterns of the Constitutional Court's women judges and Justice Sachs in the gender cases, on the one hand, to their voting patterns in all cases, on the other hand. This comparison shows that these judges are more likely to write leading judgments or separate judgments in gender cases than they would in their opinions on the whole. Furthermore, they are far more likely to agree with one another, and less likely to agree with other members of the Court in gender cases, than in all cases. The inclusion, in my analysis, of Justice Sachs illustrates that women judges do not necessarily have to shoulder the burden of gender equality by themselves. Male judges are capable of understanding, accepting and expressing a feminist point of view and should, in fact, strive to do so.
Remedying the maladies of 'lesser men or women' : the personal, political and constitutional imperatives for improved access to justiceSource: South African Journal on Human Rights 24, pp 263 –280 (2008)More Less
The South African Constitution establishes a vision for the country that is based on fundamental individual equality and non-discrimination, supported through rigorous respect for the rule of law. This vision of the role of law in society as integral to upholding constitutional principles, however, relies on ensuring access to legal services. This is, in fact, directly provided for in s 34 of the Constitution. The recognition of the importance of access to justice has been a cornerstone of the work of Justice Edwin Cameron throughout his career as both a judge and an activist. This article examines the continuum between access to legal services and access to justice and the need for individualised access to legal services in order for constitutional rights to be enforced. The authors hold that there are positive obligations on the state, as well as the courts, to facilitate access to justice. While the state has been discharging this duty mainly in the sphere of criminal justice, there is a duty and a growing need to enable the advancement of constitutional and civil claims. Unless the need for justice and remedies for injustice are met by the courts and the law, there will be negative consequences for the popular legitimacy of the courts and indeed the Constitution itself.
Author Cora HoexterSource: South African Journal on Human Rights 24, pp 281 –299 (2008)More Less
The South African judiciary is no longer fettered by parliamentary sovereignty but is instead expected to engage in transformative constitutionalism. In realising the transformative vision of the Constitution, however, the courts are apparently handicapped by a more insidious constraint inherited from the pre-democratic era: a formalistic legal culture. This culture remains evident in administrative law. Formalism was not only a significant deficiency of the pre-democratic law but has been reintroduced to some extent by the Promotion of Administrative Justice Act 3 of 2000. In this article a parallel is drawn between 'judicial policy' - a pre-democratic device designed to enable judges to escape the constraints of parliamentary sovereignty - and transformative adjudication, or what judges must do in order to achieve the aims of transformative constitutionalism. It is argued that a commitment to anti-formalism is an important element of transformative adjudication. This proposition is illustrated with reference to three judgments of an especially conscientious judge, Edwin Cameron, in the context of administrative law. These judgments, it is suggested, reveal an antipathy to formalistic legal reasoning and a willingness to interpret legal materials boldly and purposively in accordance with the substantive vision propounded by the Constitution.
Author Deeksha BhanaSource: South African Journal on Human Rights 24, pp 300 –317 (2008)More Less
Legal method is informed by legal culture and ideology. As such, legal method plays a significant role in the determination of the parameters of a constitutionally endorsed concept of contractual autonomy as against the substantive rights set out in the Bill of Rights. Judges therefore must be fully conscious of this reality in carrying out their adjudicative function. Section 39(2) of the Constitution sanctions the invocation of the common law framework and methodology to determine the reach of contractual autonomy within our constitutional dispensation. However, the framework and methodology employed by the common law of contract has generally favoured contractual autonomy as against competing common law rights. A blanket invocation of the pre-constitutional methodology could therefore inadvertently diminish the significance of substantive constitutional rights. Accordingly, the common law methodology must be reviewed against the substantively progressive aims of our constitutional order and adjusted appropriately to reflect the weight that ought to be attached to the respective constitutional rights. Here, judges can draw from ss 8(2) and 36(1) of the Constitution to guide the adjustment of the common law framework and methodology.
Author Dennis DavisSource: South African Journal on Human Rights 24, pp 318 –329 (2008)More Less
The Constitution sets out to answer that question in the negative. It conferred significant powers and responsibilities upon courts to interrogate and, if necessary, alter both common and customary law in order to promote the foundational values contained in the Bill of Rights. That power or obligation to develop the common law is to be found in ss 8 and 39(2) of the Constitution, clauses which can be termed the development clauses of the Constitution.
Don't send them to prison because they can't rehabilitate them! The South African judiciary doubts the executive's ability to rehabilitate offenders: a note on S v Shilubane 2008 (1) sacr 295 (t) : notes and commentsAuthor Jamil Ddamulira MujuziSource: South African Journal on Human Rights 24, pp 330 –340 (2008)More Less
The note is divided into three parts: part I discusses briefly the issue of separation of powers in the context of punishment, part II deals with the facts and ruling in Shilubane, and the final part discusses rehabilitation as an objective of punishment in relation to the White Paper on Corrections.
Oliver Schreiner memorial lecture : separation of powers, democratic ethos and judicial function : current developmentsAuthor Dikgang MosenekeSource: South African Journal on Human Rights 24, pp 341 –353 (2008)More Less
Mr Justice Oliver Deneys Schreiner was Chancellor of the University of the Witwatersrand and the Wits Law School proudly bears his name. It is special to find the opportunity to pay tribute to a very worthy predecessor, whose impeccable excellence, towering intellect and steadfast integrity we can only be in awe of, but hardly equal.
Twelve-year review of the work of the constitutional court : a statistical analysis : current developmentsSource: South African Journal on Human Rights 24, pp 354 –391 (2008)More Less
The Constitutional Court is now in its fourteenth year of work. During those years, it has developed a formidable jurisprudence addressing issues as important as they have been varied. As a number of the justices on the bench are set to retire during 2009 and the place of the Constitutional Court as the apex court in constitutional matters is hotly debated, it is perhaps a good time to reflect on the work of the Court thus far. Since the Court began its work in 1995, the SAJHR has published an annual series on the work of the Court in the preceding year, presented in the form of a statistical analysis. The principal rationale for this series has been to identify any developing trends in the functioning of the Court.
Author Mia SwartSource: South African Journal on Human Rights 24, pp 392 –395 (2008)More Less
Martti Koskenniemi described international law as 'the gentle civilizer of nations'. As one of the primary judicial institutions implementing international law (and the principal judicial branch of the United Nations) the International Court of Justice (ICJ), also known as the World Court, has cultivated the civilising spirit of international law.