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- Volume 24, Issue 3, 2008
South African Journal on Human Rights - Volume 24, Issue 3, 2008
Volume 24, Issue 3, 2008
Author Marius PieterseSource: South African Journal on Human Rights 24, pp 397 –424 (2008)More Less
This article reflects on the implications of an individual-centred approach to equality adjudication for the achievement of substantive equality, by considering the extent to which the peculiar characteristics of individual applicants have impacted on the outcomes of equality challenges decided by the Constitutional Court. It pinpoints and discusses applicant-specific features of claims alleging unfair discrimination that may influence the outcome of equality matters and problematises these in relation to the intersectionality of equality claims, the privilege of individual claimants, the extent of their agency and their assimilation to hegemonic societal norms. The article then points to features of the Constitutional Court's approach to equality-adjudication which may frustrate the achievement of substantive equality in this context.
Author Ockert DupperSource: South African Journal on Human Rights 24, pp 425 –444 (2008)More Less
This article addresses three pertinent questions in the area of affirmative action in employment, namely who should benefit from affirmative action measures, how these benefits should be allocated, and when the allocation of benefits should end. In respect of the first question, it is argued that disadvantage and inequality take on particularly complex forms in South Africa, and that current redress strategy, by placing society into two (or four) simplified camps, denies this complexity. In addition, it perpetuates race consciousness, which has implications for the goal of creating a non-racial society. It therefore recommends a more nuanced approach to affirmative action. In respect of the second question, the article recommends an approach to the implementation of affirmative action measures that weakens, rather than reinforces, stereotypical and prejudicial views. Finally, in respect of the third question, it is widely acknowledged that affirmative action is a temporary measure with a specified goal or goals. Once these are achieved, the case for affirmative action is correspondingly weakened and continued efforts in the interest of affirmative action might well be regarded as discriminatory. In the employment context, the goal is expressed as 'equitable representation'. Does this mean that once the workplace is more representative, affirmative action should end? The article suggests that - in contrast to the position adopted in the United States - affirmative action should be used not only to attain representivity, but also to maintain it. This may mean a supporting rather than a leading role for affirmative action, but a continued role nonetheless.
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 : proposals for legislative reformAuthor Anton KokSource: South African Journal on Human Rights 24, pp 445 –471 (2008)More Less
This article considers the limits of the law in addressing discrimination. It discusses to what extent the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 will achieve its stated goals of facilitating socio-economic transformation, facilitating the creation of a more caring society, and establishing accessible enforcement mechanisms. It then identifies a number of provisions in the Equality Act that could have been drafted more carefully in service to these goals. It, inter alia, suggests that the definition of 'discrimination' in the Act be added to; that the list of prohibited grounds in the Act be extended; that systemic discrimination be addressed much more explicitly; and that s 14 be refined.
Interpreting and limiting the basic socio-economic rights of children in cases where they overlap with the socio-economic rights of othersAuthor Linda StewartSource: South African Journal on Human Rights 24, pp 472 –494 (2008)More Less
Section 28(1)(c) of the South African Constitution provides that 'every child has the right to basic nutrition, shelter, basic health care services, and social services'. It has been argued that in the absence of an internal limitation, these basic socio-economic rights of children place a direct and immediate duty on the state to provide children with basic social services. Current jurisprudence has not directly dealt with the issue whether children who are under parental care have a direct entitlement to these rights. However, the Constitutional Court indirectly dealt with the matter in its Grootboom decision, approaching it from the perspective of everyone's rights. Does this mean that s 28(1)(c) is also subject to the internal limitations as set out in ss 26(2) and 27(2) of the Constitution in cases where both children and their parents are involved, with the effect that the state is only required to take reasonable measures progressively within available resources? This article investigates the approach of the Constitutional Court in the interpretation and limitation of the basic socio-economic rights of children under parental care and suggests an approach that is based on the substantive content of children's socio-economic rights by applying the two-stage approach of constitutional analysis of the Bill of Rights. In the first stage of analysis the courts should give substantive content to these rights. In doing so, the court should be guided by the values and the transformative aims of the Constitution and by international law. In the second stage of analysis the general limitation clause as opposed to the internal limitations in ss 26 and 27 should be employed. The general limitation clause calls for a full-blown proportionality test and it would therefore be more difficult for the state to justify the limitation. A proportionality analysis will further allow for a higher degree of scrutiny to be applied in the case of the realisation of the duties imposed by s 28(1)(c), because children are vulnerable beneficiaries.
Realising children's rights to legal representation and to be heard in judicial proceedings : an updateAuthor Julia Sloth-NielsenSource: South African Journal on Human Rights 24, pp 495 –524 (2008)More Less
South Africa still has some way to go towards ensuring that children's rights to legal representation and to be heard are fully implemented in relation to judicial proceedings affecting them. Nonetheless, some emerging practices point to an ongoing expansion of the realisation of these rights. This article charts some key developments in law, policy and implementation that constitute such practices. The article also argues that apart from merely serving as the child's voice in the courtroom setting, effective child lawyering is additionally contingent on a commitment to seeking out children in need of services, on an emphasis more broadly on stakeholder relationships in the sector, and a willingness to adjust to changing circumstances.
Author John C. MubangiziSource: South African Journal on Human Rights 24, pp 525 –527 (2008)More Less
Overall, Pogge's book is a must-read for anyone interested in the discourse on poverty and human rights. It is a useful addition to the growing literature on world poverty. Its uniqueness has to be seen in the context of the pragmatic and practical plans and proposals suggested for eradicating world poverty. Its strength, however, lies in Pogge's criticism and disapproval of the prevailing global economic order.
International Migration Law : Developing Paradigms and Key Challenges, R. Cholewinski, R. Perruchoud and E. Macdonald (Eds.) : book reviewAuthor Jonathan KlaarenSource: South African Journal on Human Rights 24, pp 528 –529 (2008)More Less
This volume is a direct successor to the very successful volume edited by Alex Aleinikoff entitled Migration and International Legal Norms. It continues in the fine tradition of its predecessor by offering comprehensive and informative analysis of a broad range of topics in this increasingly significant field of global law. Just as the earlier book was a 'must-have' for serious scholars in the field, so too is this one. The contributing authors are uniformly knowledgeable and skilful editing has resulted in a clean and useful collection.
Source: South African Journal on Human Rights 24, pp 530 –535 (2008)More Less
Rights and Regulation is the special focus of this issue of the South African Journal on Human Rights. While the majority of this part contains articles and current developments of general interest, the Rights and Regulation focus is nevertheless an important one. It originates from the Law and Society Association's 2006 Summer Institute held at the University of the Witwatersrand, Johannesburg. The Institute was an intensive postgraduate student-focused research and career workshop.
Author Augustine S.J. ParkSource: South African Journal on Human Rights 24, pp 536 –564 (2008)More Less
The strengthening of rule of law institutions is increasingly recognised as a key component to consolidating peace in post-conflict situations. Ensuring fairness under the law (and the appearance of fairness) whilst expanding access to justice in rural areas has become a chief plank in peacebuilding efforts in Sierra Leone following a decade-long civil conflict born of corrupt mismanagement in this failed post-colonial state. However, in order for justice institutions to be meaningful, local practices must be engaged. Despite discourse suggesting that justice is 'universal', socio-legal scholars have demonstrated that justice and its performance are cultural artefacts. Any robust peace in Sierra Leone must twin increasingly globalised rule of law institutions with local meanings and practices of justice. At the same time, local justice practices must be articulated with human rights. Moreover, the post-conflict period opens a unique space to expand Sierra Leonean local justice practices to stay the hand of vengeance following an inter-communal war where regular people became perpetrators, and almost everyone became a victim. Drawing on fieldwork conducted in Sierra Leone, this article will examine the development of rule of law institutions in Sierra Leonean peacebuilding and attempt to suggest how these institutions might coexist with local, 'traditional' justice practices. Moreover, the article also offers a critique of rule of law programming, drawing analogies to the criticisms mounted against the Law and Development Movement.
Author Solomon A. DerssoSource: South African Journal on Human Rights 24, pp 565 –592 (2008)More Less
The issue of minorities or the question of the accommodation of ethnic diversity is a longstanding dilemmas that has continued to trouble the post-colonial African state. Despite more than four decades of nation-building, most African states lack national cohesion and suffer from problems of ethnic conflicts. This article submits that this is largely attributable to the nature of Africa's post-colonial nation-building process. The first and main aim of this article is accordingly to investigate the nature of post-colonial nation-building. To this end, the paper interrogates the nature of constitutional and policy approaches of the post-colonial African state to this dilemma and explicates why and how these approaches have failed. As the investigation reveals, one of the characteristics of the post-colonial nation-building and constitutional discourse and practice in Africa was the refusal to take due account of Africa's ethno-cultural diversity and develop relevant institutions and policies for the accommodation of the interests and identity of the different communities that together constitute the modern African state. Second, against the premise of the imperative of the politics of recognition, using materials from liberal multiculturalism and international human rights, the article argues for and sketches out an alternative constitutional framework that facilitates the accommodation of the interests and identity of members of various groups in the process of national integration. This anaysis reveals that South Africa represents a good example of a country with such a constitutional framework, from which other African countries can identify important insights for building a democratic constitutional order that adequately accommodates their diversity.
Author Jackie DugardSource: South African Journal on Human Rights 24, pp 593 –611 (2008)More Less