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- Volume 26, Issue 3, 2010
South African Journal on Human Rights - Volume 26, Issue 3, 2010
Volume 26, Issue 3, 2010
Source: South African Journal on Human Rights 26, pp 403 –509 (2010)More Less
A basic assumption of the Constitution, which finds expression in its 'development clauses' (ss 8(3) & 39(2)), is that South Africa cannot progress toward a society based on human dignity, equality, and freedom with a legal system that rigs a transformative constitutional superstructure onto a common and customary law base inherited from the past and indelibly stained by apartheid. We examine South African judges' performance in implementing the development clauses through the lens of legal culture. A central concern is the potential of traditional South African legal culture to constrain the transformative project. South Africa has an advanced Constitution informed by the values of social interdependence and ubuntu, but its jurists continue to deploy traditional methods of legal analysis. Ironically, the United States has a classical liberal and individualist charter, but the Legal Realist tradition bequeathed American lawyers a storehouse of modernist legal methods well suited to South Africa's transformative project. Surveying the cases over the first 15 years of the new dispensation, we find some leading judgments that demonstrate the capability of the courts to transform the common law and that provide glimpses of a more egalitarian, inclusive, and caring legal infrastructure. The chief disappointments are the absence thus far of a coherent exploration of the Constitution's values or an explicit and sustained effort to develop new legal methodologies appropriate to transformative constitutionalism; the reluctance to interrogate the distributive consequences of private law rules in the routines of economic life; the emergence of a neoliberal strand in constitutional application; and the lack of critical sharpness with respect to separation-of-powers issues. The inhibiting effect of mainstream legal culture is not entirely responsible for these difficulties, but concerns expressed a decade ago that the courts would be held back by the traditionalism of South African legal culture were well taken.
Counter-terrorism and international cooperation against terrorism - an elusive goal : a South African perspectiveAuthor Azhar CachaliaSource: South African Journal on Human Rights 26, pp 510 –535 (2010)More Less
The Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 is aimed at creating a legal machinery to counter any domestic threat of terrorism and give effect to South Africa's international obligations to counter international terrorism. This article argues that the scope of the Act, which is defined by its definition of a 'terrorist act', is vague and reaches far beyond any conventional understanding of what terrorism is - the indiscriminate attacks on civilians to achieve a political purpose. At the same time it attempts to insulate the actions of 'freedom fighters' from the scope of the Act. This definition will make adjudication under the Act and international cooperation very difficult. The Act is therefore vulnerable to constitutional scrutiny on the grounds of legality. The article also examines the failure of many countries, including the United States, to comply with the rule of law in countering the threat posed by terrorism. The article concludes that cooperating with countries whose counter-terrorism policies are inimical to the rule of law would fall foul of South Africa's own domestic and international obligations to promote and to protect human rights.
Fairness in transformation : a critique of the constitutional court's affirmative action jurisprudenceAuthor J.L. PretoriusSource: South African Journal on Human Rights 26, pp 536 –570 (2010)More Less
The Constitutional Court has contextualised its interpretation of the affirmative action clause of the Constitution in a manner which dogmatically isolated it from the broader normative framework of the equality guarantee and the Constitution as a whole. In the context of equality challenges to affirmative action, the Court opted to extract the constitutional conditions for validity from s 9(2) exclusively, to the exclusion of the fairness and proportionality requirements of ss 9(3) and 36 respectively. This approach, if consistently followed, stands to limit basic constitutional values and could undermine the ability of the Constitution to meaningfully integrate competing interests, in the context of affirmative action disputes, in a comprehensive and fair manner. An element of ambivalence, however, characterises the Court's jurisprudence in this respect, which might serve to open the way for the development of a more integrated, fairness-based approach.
Source: South African Journal on Human Rights 26, pp 571 –585 (2010)More Less
This note provides descriptive statistics on the work of the Constitutional Court of South Africa in 2007, organised in a number of tables. The method of constructing each table is given in the text that follows it. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of the SAJHR. Part I covers those decisions in which the Court produced a written judgment while Part II covers applications for leave to appeal that were considered in chambers and dismissed without a judgment being given.
Advocating for Accountability : Civic-State Interactions to Protect Refugees in South Africa, Jeff Handmaker : book reviewAuthor Roni AmitSource: South African Journal on Human Rights 26, pp 586 –592 (2010)More Less
Following the establishment of a democratic, constitutional order in South Africa, government and civic organisations found themselves in uncharted territory as they sought to redefine the boundaries of state-society relations. Civic actors who had previously been pushed underground in their efforts to challenge the repressive apartheid state now operated openly, with some even becoming part of the state mechanism itself. While civic organisations continued to oppose certain state actions, they also began working cooperatively with the state in its efforts to establish new policies.
Post TRC Prosecutions in South Africa : Accountability for Political Crimes after the Truth and Reconciliation Commission's Amnesty Process, Ole Bubenzer : book reviewAuthor Mia SwartSource: South African Journal on Human Rights 26, pp 592 –595 (2010)More Less
The amnesty process carried out as part of the mandate of the South African Truth and Reconciliation Commission (TRC) was premised on the fact that those who were not granted amnesty would be prosecuted. The question of post-TRC prosecution therefore has a strong impact on the legitimacy of the TRC process. This sentiment was expressed by President Mandela who upon the occasion of the tabling of the TRC Report in Parliament in February 1999 stated that 'accountability does need to be established and where evidence exists of a serious crime, prosecution should be instituted within a fixed time frame'.