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- Volume 25, Issue 1, 2009
South African Journal on Human Rights - Volume 25, Issue 1, 2009
Volume 25, Issue 1, 2009
Author Henk BothaSource: South African Journal on Human Rights 25, pp 1 –37 (2009)More Less
This article deals with the paradox that, in order to remedy discrimination and redress disadvantage, we have to invoke broad social categories and identities which are themselves implicated in relations of inequality and subordination. This paradox is explored from three different angles. First, the article argues for a complex understanding of equality. In terms of this understanding, the right to equality is underpinned by at least three interdependent, yet constantly shifting values, namely dignity, equality and democracy. Secondly, a radical understanding of difference is advocated, which seeks to destabilise the symbolic oppositions and hierarchies that underlie inequality and exclusion, and which avoids the uncritical equation of difference with supposedly self-contained individual and collective identities. Thirdly, the article echoes calls for a memorial understanding of constitutionalism which resists the monumentalisation of past struggles and is concerned with the limits of the law in detecting and responding to disadvantage. It is argued that these three perspectives, taken together, enable a transformative discourse on equality, which remains open to the capacity of disadvantage and difference to resist the closureinto which law inevitably lapses.
Author David BilchitzSource: South African Journal on Human Rights 25, pp 38 –72 (2009)More Less
This article considers the legal personhood and dignity of non-human animals. It first argues that the concept of legal personhood can embrace all those who are capable of having rights or duties. Since the concept includes those who are rights-bearers, without necessarily being duty-bearers, it is necessary to investigate whether it is possible for animals to be rightsbearers within our law. It is argued that the traditional classification of animals as legal objects has already been challenged by the enactment of animal welfare legislation. Certain traditional justifications for such legislation cannot withstand scrutiny and it is shown that such legislation rests upon the recognition that animals have important interests in their own lives and so require legal protections in their own right. This provides the basis for recognising that they have certain rights within the law, and consequently, if we take the argument to its logical conclusion that they are natural persons rather than things. This conclusion can be reached through courts simply drawing out the implications of the existing legal regime in relation to animals. An alternative basis for restricting the category of legal personhood only to those who are members of the human species is often rooted in the notion that human beings have a special 'worth' or 'dignity' not possessed by other animals. The dignity claim is shown to be capable of two different interpretations : one that asserts the special value of human beings as a category and the other that asserts the special value of certain complex characteristics - such as rational agency - largely found only within the human species. Both interpretations are shown to be flawed and, ultimately, provide no acceptable justification for recognising that only human beings are capable of having rights that must be respected. The notion of dignity, it is argued, can be developed to remove the arbitrary exclusion of nonhuman animals. The concept, as developed recently by Martha Nussbaum, embraces all those who have the capacity to flourish and can recognise the variable nature of the good for diverse beings. The adoption of the revised conception of dignity paves the way for the recognition of the legal personhood of animals. The final part of this article considers the possibilities for interpreting both the common law and constitutional provisions so as to recognise the dignity and personhood of animals. A key problem that is addressed is whether South African society is ready to embrace the full implications of this recognition. The legal concept of 'progressive realisation' of animal rights is proposed as offering the possibility of ensuring greater protections for animals through recognising their dignity and personhood whilst embracing a gradualist approach towards the full realisation of their rights, thus preventing a wholesale disjunction between the law and the attitudes of wider South African society.
Source: South African Journal on Human Rights 25, pp 73 –101 (2009)More Less
This article proposes that the notion of progressive dignified living is a more effective measure of the quality of rural life than other, prevailing means of assessment. The notion entails enjoyment of human rights, compliance with and advancement of human rights principles, and the performance of duties correlative to specific human rights, such as the right to development. In Malawi, where the culture of accountability is weak, evidence casts doubt on the effectiveness of legislation as a strategy to realise the right to development. At the same time, nascent developments indicate that the involvement of civil society and quasi-public organisations in catalysing the demand for human rights in rural areas can be an effective way of promoting the right to development. As formal processes for redress are largely ineffectual, it is through community insistence on enjoyment of the right to development that norms may emerge to protect accountability-related gains through legislation. This would constitute an example of people-determined reflexive law making.
Why State policies that undermine HIV lay counsellors constitute retrogressive measures that violate the right of access to health care for pregnant women and infantsSource: South African Journal on Human Rights 25, pp 102 –125 (2009)More Less
The authors make two distinct, but related, arguments. First, their empirical studies - conducted in three antenatal clinics in inner-city Johannesburg - demonstrate a strong correlation between (1) the government's failure to provide adequate remuneration to and secure employment of lay counsellors for the provision of HIV counseling and treatment ; and (2) the failure of many women and children to receive timely medical interventions. The data show that late payment of HIV lay counsellors has a devastating impact on HIV testing in these three clinics. The evidence also demonstrates that such timely HIV prevention and treatment is required for the survival of pregnant women and their neonates. Lay counsellors - through no fault of their own - are often unable to make these timely interventions. Second, the authors contend that the government's conscious deployment of inadequately remunerated and institutionally marginalized lay counsellors instead of health care professionals (who had previously undertaken counselling and testing) constitutes a retrogressive measure in terms of s 27 of the Constitution. In short, despite the government's commitment to an expanded, more efficacious ART rollout, it is currently delivering less health care - not more - and less access to adequate health care - not more or better - to this cohort of patients with HIV. Such retrogressive measures offend the Court's own understanding of the delivery of this constitutionally-mandated public good to pregnant women with HIV and their infants. The failure of the government to provide adequate and timely remuneration and secure employment to lay counsellors rises to the level required for finding an unjustifiable limitation of s 27's right of access to health care services. As the authors show, the violation flows from the improperly remunerated, insufficiently trained and generally marginalized manner in which lay counsellors are (mis)managed by a public health system that has chosen to supplant well-trained professionals with well-intentioned non-professionals in the delivery of essential components of now constitutionally-mandated ART and PMTCT programmes.
Source: South African Journal on Human Rights 25, pp 126 –151 (2009)More Less
Stem cell banking is a complex and controversial subject. There are currently three private stem cell banks in South Africa. At present, South Africa does not have a public stem cell bank. The de facto legal vacuum in which the private banks have operated thus far will change at some point in the future following the publication, for public comment, of draft regulations relating to human stem cells in the Government Gazette. If promulgated in their present form, the draft regulations would effectively ban private stem cell banking. We argue that such a ban would constitute an unjustifiable violation of at least four constitutionally protected rights, namely, the right to access to health care, the right to bodily integrity, children's rights, and the right to freedom of economic activity. The traditional arguments against private banking that are based on the low recall rate of banked cells, and the diversion of resources away from public banks, may justify the regulation of private banks, but not their prohibition. Specific attention is given to the argument against private banking that is purportedly based on equality. This argument is shown to be based on an incorrect conception of equality, namely that equality justifies 'levelling down', in which unequal access to a certain social good can justifiably be remedied by denying everyone access to this social good. Less restrictive measures are proposed to regulate stem cell banking in South Africa for the public good and in a constitutionally acceptable fashion.
Author Simon DelaneySource: South African Journal on Human Rights 25, pp 152 –160 (2009)More Less
The Constitution specifically requires the independent regulation of broadcasting. Section 192 provides :
National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society.
The Independent Communications Authority of South Africa (ICASA) is authorised to regulate inter alia the converged broadcasting and telecommunications sectors, now referred to as electronic communications, by the ICASA Act and the ECA.
Source: South African Journal on Human Rights 25, pp 161 –173 (2009)More Less
On 4 December 2008, the Gauteng Provincial Legislature (GPL) voted to approve the Gauteng Scrutiny of Subordinate Legislation Act 5 of 2008 (GSSLA). In doing so nearly 12 years after the promulgation of the Constitution of the Republic of South Africa, 1996 and 15 years after the adoption of the Breakwater Declaration, Gauteng became the first democratic legislature in South Africa to enact a parliamentary regime for oversight of subordinate legislation. The provisions of this legislation fit neatly into the constitutional categories created by the 1996 Constitution.
Housing, Land And Property Restitution Rights Of Refugees And Displaced Persons : Laws, Cases And Materials, S. Leckie : book reviewAuthor Redson Edward KapinduSource: South African Journal on Human Rights 25, pp 174 –178 (2009)More Less
Refugees and other forcibly displaced persons (herein collectively referred to as forced migrants) constitute a very vulnerable group in society in need of special protection. One of the important rights that forced migrants have is the right of return in safety and dignity to their countries and homes of origin. This right, however, is not simply restricted to returning to their original homes in an atmosphere devoid of actual, or the threat of, violence and other forms of harm, but it also extends to the restoration of property rights or interests to their previous position (status-quo ante) : the legal principle of restituo in integrum.