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- Volume 27, Issue 2, 2011
South African Journal on Human Rights - Volume 27, Issue 2, 2011
Volume 27, Issue 2, 2011
Author David BilchitzSource: South African Journal on Human Rights 27, pp 219 –248 (2011)More Less
Should religious associations be allowed to engage in acts of unfair discrimination on grounds prohibited in the Constitution where they claim their religious doctrines require it? This article argues for this question, in general, to be answered in the negative and seeks in the process to explore the tension between advancing equality in South African society whilst recognising the autonomy of private associations. The Strydom case - dealing with the dismissal of a gay music teacher from a church on grounds of his sexual orientation - provides the backdrop for an analysis of these issues. The article critiques the work of two authors - Patrick Lenta and Stu Woolman - who argue that greater emphasis should be placed on freedom of association in these circumstances even where such associations promote values that are in direct contradiction to those contained in the Constitution. For Lenta, the core concern relates to 'protecting diversity' whilst, for Woolman, it involves ensuring a society with a high quantity of 'social capital'. I shall argue that both authors pay insufficient attention to the South African context, which provides a strong case for a presumption in favour of equality and non-discrimination. Moreover, an engagement with the history of religion in South Africa provides strong reasons to avoid simply leaving a private religious domain alone that is at odds with the political morality of the state. I shall also seek to show that the very values that both Lenta and Woolman are concerned with do not unequivocally support their conclusions and in fact provide a case for the contrary point of view. The arguments I provide seek to establish that courts should generally refuse to condone discrimination on prohibited grounds even where this occurs on the basis of religious doctrines. Ultimately, the article argues for South Africa to adopt an egalitarian form of liberalism that recognises limits on the freedom of religious associations to discriminate as this is necessary to ensure respect for the equal dignity of all individuals in the polity.
Patching the 'legal black hole' : the extraterritorial reach of states' human rights duties in the African human rights systemAuthor Takele Soboka BultoSource: South African Journal on Human Rights 27, pp 249 –278 (2011)More Less
This article analyses (the scope of) the legal obligations owed by African states under the African Charter on Human and Peoples' Rights directly to residents of third states in Africa in the realisation of such non-residents' human and peoples' rights guaranteed in the premier continental human rights instrument. The central question is whether a state owes the quartet layers of obligations (to 'respect, protect, promote and fulfil') for the realisation of Charter-based guarantees only to those within its own borders or also to those beyond (in another state's territory). The article thus examines the question of to whom - only to those within or also to those outside a state's territory - the state's human rights obligations are owed and on whose behalf the obligations are to be fulfilled in the context of the African Charter. In order to answer this question, the article analyses the corpus of the African Charter, related jurisprudence of the African Commission, and relevant international and regional human rights treaties and case law, which may be relied upon as 'inspirational sources' for the interpretation and application of the African Charter. The article demonstrates that the African Charter allows wide latitude for the extraterritorial application of human and peoples' rights, state duties and the Charter-based remedies it enshrines.
South Africa's constitutional environmental right (generously) interpreted : what is in it for poverty?Author Anel Du PlessisSource: South African Journal on Human Rights 27, pp 279 –307 (2011)More Less
Section 24 of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to an environment that is not detrimental to his or her health or well-being. The nature and ambit of the environmental right relate to ss 27(1) and (2), which provide for a right of access to health-care services and sufficient food and water. Yet the scope of s 24 transcends the modalities of what is necessary for people's 'biological survival', including physical health. Departing from the viewpoint that a strong link exists between the vulnerable poor and the different constitutional entitlements enshrined in s 24, this article explores how poverty influences the way in which the normative content of the constitutional environmental right should be interpreted and applied. Following an interpretative approach, the call is made for an expansive or generous interpretation of the environmental right that takes into account the broader purposes and interests which this right and the Constitution in general, seem to protect.
Author Darren SmithSource: South African Journal on Human Rights 27, pp 308 –330 (2011)More Less
The lessor's tacit right of hypothec is a speedy remedy which allows lessors suffering defaulting lessees to recover any outstanding amounts owed to them. The procedure for the recovery of these monies, provided for in the Magistrates' Court Act and the Supreme Court Act, allows the movable goods belonging to the lessee to be judicially attached and sold in execution. During such attachments, ownership of goods is mostly disregarded and goods belonging to third parties that are found on the premises are subject to the same treatment. The common law provides four well-entrenched requirements that need to be fulfilled in order to attach goods belonging to a third party. The theoretical justifications of these requirements are that the third party has consented to their goods being used as security for the lessee's debts or that the third party is estopped from having their goods protected because they created an impression in the lessor's mind that the goods belonged to the lessee. Herein lies the problem: since there is no nexus between the third party's goods and the debt of the lessee, the theoretical justifications of consent or estoppel become questionable and, because of this, the attachment and sale of a third party's goods is potentially an unconstitutional and an arbitrary deprivation of property. Recent analogous case law suggests that such deprivations of property are in fact arbitrary and unconstitutional and it is now appropriate that the lessor's tacit right of hypothec be contemporised to reflect the current constitutional values in South Africa.
The protection of personal information in broadcasting : the effect of the Protection of Personal Information Bill on freedom of expressionAuthor Cornelius VisserSource: South African Journal on Human Rights 27, pp 331 –345 (2011)More Less
Section 16 of the Constitution of the Republic of South Africa, 1996 entrenches the right to freedom of expression as a fundamental right. In particular, s 16(1) provides that everyone has the right to freedom of expression, including the freedom of the press and other media, as well as the freedom to receive or impart information. As Daniel Malan and Livia Dyer argue, 'the term "other media" embraces the electronic media, such as radio and television, and the Constitution does not distinguish between the press and other media'. Although no direct reference is made to the broadcast media, 'freedom of expression will have special relevance in the context of broadcasting'.
My tea party, your mob, our social contract : freedom of assembly and the constitutional right to rebellion in Garvis v SATAWU (Minister for Safety & Security, third party) 2010 (6) SA 280 (WCC)Author Stu WoolmanSource: South African Journal on Human Rights 27, pp 346 –353 (2011)More Less
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
The United States of America Declaration of Independence, 4 July 1776
Human rights litigation against companies in South African courts : a response to Mankayi v Anglogold Ashanti 2011 (3) SA 237 (CC)Author Lise SmitSource: South African Journal on Human Rights 27, pp 354 –373 (2011)More Less
Human rights traditionally protect individuals against the state. Governments are powerful entities, with legislative, executive and judicial force on their side. Human rights protect individual members of society against this government power. Companies, on the other hand, are separate, private legal entities. Within the traditional theoretical framework, they are not burdened with the same legal responsibilities of protecting and promoting human rights as governments. Unless performing a state function, they have no distinct place in public law. The emergence of influential multi-national corporations, some with larger turnovers than the gross domestic product (GDP) of smaller nations, has shown us that this traditional approach increasingly falls short of realistic needs.
Author Bonita MeyersfeldSource: South African Journal on Human Rights 27, pp 374 –380 (2011)More Less
A survivor of the Rwandan genocide expressed confusion at the international criminal justice process. Her arm had been cut off during the genocide and now she could not till her field. She could not understand why the perpetrator of this crime was in a prison in the Netherlands and not back in Rwanda to help her till her land.