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- Volume 25, Issue 2, 2009
South African Journal on Human Rights - Volume 25, Issue 2, 2009
Volume 25, Issue 2, 2009
Adult, consensual sex work in South Africa - the cautionary message of criminal law and sexual moralitySource: South African Journal on Human Rights 25, pp 179 –197 (2009)More Less
South Africa's current legal regime criminalises the voluntary selling or buying of adult sex. This article argues that continued criminalisation of voluntary sex work is wasteful and destructive, while being an imprudent use of public resources. It uses the South African Law Reform Commission (SALR C)'s Discussion Paper on Adult Prostitution as the starting point to argue in favour of a legal framework that recognises voluntary adult sex workers as legitimate labourers who are entitled to the full protection of the law and human rights. The article considers the theoretical framework on criminal law and sexual morality, while examining how South Africa's legal system has disempowered black women and gay and lesbian people through employing criminal sanction in the sphere of sexual morality. We then argue that most human relationships involve some degree of contractual or transactional behaviour and that any criminal laws inserted into the fray of complex social and sexual relations will draw arbitrary distinctions and create standards that are not judicially manageable. In conclusion, we consider the current New Zealand approach to sex work and argue that South Africa should adapt its model.
Author Marius PieterseSource: South African Journal on Human Rights 25, pp 198 –217 (2009)More Less
Notwithstanding the state-centeredness of most theories on socio-economic rights, the objects of these rights are often accessed privately, within and by way of relationships. Viewing socio-economic obligations as primarily enforceable against the state ignores the significant power of parties to private relationships to control the terms of access to essential goods and services. It also fails to hold them accountable for the manner in which this power is wielded. It is therefore necessary to develop a theory of horizontal application of socio-economic rights that recognises, assigns, enforces and enables observance of socio-economic obligations within private relationships. This article investigates relational access to socio-economic rights in South Africa, with the aim of identifying public law interventions, or changes to the private law landscape, that would assist vulnerable parties in dependency-producing relationships to access the objects of their socio-economic rights. It provides an overview of the different kinds of relationships that structure private access to socio-economic goods and services and considers factors that impact on the extent and quality of access to socio-economic rights within these relationships. Thereafter, it considers ways in which vulnerabilities associated with relational access to essential goods and services may be reduced. Finally, it argues for transcending the private / public dichotomy and warns against the privatisation of public welfare responsibility.
Disability equality rights in South Africa : concepts, interpretation and the transformation imperativeAuthor Faisal BhabhaSource: South African Journal on Human Rights 25, pp 218 –245 (2009)More Less
The Bill of Rights expressly prohibits unfair discrimination on the basis of disability, however the Constitutional Court has not yet addressed the meaning or scope of disability equality. This article seeks to develop an indigenous model of conceptualising and interpreting equality for people with disabilities in South Africa. It draws from scholarship that has emerged from the global disability studies movement, and incorporates contemporary thinking about disability rights as a core component of international human rights. The article adopts the purposive, generous and inter-dependent approach of the Constitutional Court to interpreting the provisions of the Bill of Rights. The model of equality used in the article grows out of the transformative imperatives embodied in key legal instruments, prioritising the enhancement of capabilities, the realisation of self-worth and individual potential, the preservation of human dignity and the promotion of individual and collective self-determination. Pivotal in this analysis is a conception of equality that understands difference as not necessarily a basis of disadvantage, but as a source of richness and inherent value. Constitutional and statutory instruments provide the legal tools for pursuing a project of transformation in disability equality. They outline more than just an aspiration of equality, but create positive rights, provide access to remedies and establish an institutional framework for monitoring and enforcement. In exploring how the concept of disability, as a ground of equality protection, can be developed and applied, the article also seeks to promote a programme of broader societal transformation for people with disabilities.
Author David SchneidermanSource: South African Journal on Human Rights 25, pp 246 –279 (2009)More Less
It generally is assumed that rules to protect and promote foreign investment are sufficiently flexible to address the specific needs of developing and less developed countries. What happens, however, when the typical model of investment treaty rubs against national constitutional commitments, such as those mandating the promotion of equality in post-apartheid South Africa? This article explores such tensions in the context of free trade and investment negotiations between the United States and the South African Customs Union. South Africa's plan to generate a new black middle class via a programme of Black Economic Empowerment, it turns out, was a contributing factor to the scuttling of treaty negotiations. It is suggested that powerful OE CD states such as the US are less likely to tolerate divergence from their model of investment protection even where divergence arguably is mandated by constitutional commitments to the promotion of equality elsewhere.
Author Stu WoolmanSource: South African Journal on Human Rights 25, pp 280 –305 (2009)More Less
Source: South African Journal on Human Rights 25, pp 306 –329 (2009)More Less
The recent global financial crisis has affected and is affecting virtually all sectors of society in both developing and developed countries. This article examines the impact the crisis has had on the right to food and attempts to show that efforts to enhance this right, amidst the financial crisis, should be wary of including or adopting measures that have not been successful in bringing about the required food access and production. The article argues for the adoption of a rights-based approach to food as a basis for policy and practice. This approach is viewed as one that encompasses a wide range of issues and calls for a coordinated effort from the wider community which is required to enhance food availability, access and production.
Source: South African Journal on Human Rights 25, pp 330 –352 (2009)More Less
Seduction, the idea of leading someone astray to engage in illicit sexual intercourse has been a crime or delict in both customary and common law. Notwithstanding similar origins and goals, the customary and common-law actions for seduction have marked differences. The former rests on a constitutional right to culture, while the latter has no particular cultural association; the former is arguably obsolete, while the latter is still very much alive and in use; and, of course, the common-law action avails only women, while its customary counterpart is available only to men as guardians of women. Whether men or women are favoured, both the actions now face the possibility of review for infringing the constitutional prohibition on sex or gender discrimination, either on the grounds that they allow only one sex the right of action or because they perpetuate gender stereotypes. This article shows how difficult it will be to remedy these constitutional problems: while there is reason to hold the common-law action abrogated by disuse, to do so would deprive women, who may not bring the customary action, of an alternative remedy in common law. In any event, the delictual remedies may well have been superseded by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. By re-defining the consent of those most vulnerable to sexual predation - young women and children - criminal prosecution has again become possible.
Author Max Du PlessisSource: South African Journal on Human Rights 25, pp 353 –379 (2009)More Less
This article considers recent jurisprudential developments in the field of extraordinary rendition, extradition and the so-called 'war on terror'. Those developments form the backdrop to a reflective discussion of the recent decision of the Supreme Court of Appeal in the 'Rashid matter' - a case involving the removal from South Africa of Khalid Rashid to Pakistan. The SCA ruled that the removal was unlawful and that Department of Home Affairs' officials had acted in a manner that was manifestly in violation of Mr Rashid's rights. The author draws various lessons from the Rashid case, one of which is the central role of the courts in ensuring the protection of human rights in cases of removal, particularly in the context of the ongoing fight against terrorism.
'Here's to you, Mrs Robinson' : peculiarities and paragraph 29 in determining the treatment of domestic partnershipsAuthor Helen KruuseSource: South African Journal on Human Rights 25, pp 380 –391 (2009)More Less
There is always need of persons not only to discover new truths, and point out when what were once truths are true no longer, but also to commence new practices, and set the example of more enlightened conduct.
The law is one of the important architects of social norms. At times, it can be a tool to solve problems, eradicate inequalities, and advance the rights of the disadvantaged. At other times, the law is an anchor and a constraint upon social and ideological advances. With regards to equality and non-traditional partnerships, it seems that law falls into this latter category.
Author Geo QuinotSource: South African Journal on Human Rights 25, pp 392 –402 (2009)More Less
The Case for the Child : Towards a New Agenda, Ya'ir Ronen and Charles W. Greenbaum (Eds.) : book reviewSource: South African Journal on Human Rights 25, pp 403 –405 (2009)More Less
This book sets out with the premise of showing that whilst almost universal ratification of the United Nations Convention on the Rights of the Child (UN CRC) has led to legislative improvements in children's rights in many countries, too many of the world's children are 'still beset by risks to their development emanating from the basic problems facing all societies and especially underdeveloped ones: poverty, disease and violence'. So, the introduction to the book posits, there is a need for 'a new agenda for children'. The first element of this new agenda is a recognition by professional and society leaders of children as full human beings who have needs and the right to see those needs fulfilled. The second element is a collective effort by governments and non-governmental organisations to recognise their obligations under the UN CRC.