- A-Z Publications
- South African Journal on Human Rights
- Previous Issues
- Volume 29, Issue 2, 2013
South African Journal on Human Rights - Volume 29, Issue 2, 2013
Volume 29, Issue 2, 2013
Sugar, spice and criminalised consent : a feminist perspective of the legal framework regulating teenage sexuality in South AfricaAuthor Deborah BrandSource: South African Journal on Human Rights 29, pp 193 –218 (2013)More Less
In South Africa, the legislative framework regulating teenage sexuality is driven by historically established norms of sexual innocence and therefore, adopts a protectionist approach to sexual activity between teenagers which, from a feminist perspective, has a disproportionate impact on teenage girls. Teenage girls walk a particularly thin line between sexual desire and activity. Their existence is also compounded by an environment of violence, poverty and disease as well as the stigmatisation of the sexuality of women and young people. This context of discontinuity and conflict is reflected in the law. Sections 15(2) and 16(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 criminalises sexual activity in the 12 to 16 age group, even in circumstances where sex is consensual and mutually-desired. By failing to differentiate between harmful and mutually-desired sexual activity (or in some circumstances mere physical contact), the 2007 Sexual Offences Act stifles opportunities to develop girls' sexual autonomy. The statutory offences and punishment are also out of touch with provisions in the Children's Act and the Choice of Termination of Pregnancy Act that secure access to information, contraceptives and the reproductive rights of teenagers. Rather than NDPP-ordered sex education, the legal framework should be aimed at developing sexual autonomy through creative, effective and government-supported intervention programmes based on education and access to information about sexuality and reproductive health care.
Remnants of Apartheid common law justice : the primacy of the spirit, purport and objects of the Bills of Rights for developing the common law and bringing horizontal rights to fruitionAuthor Christopher RoedererSource: South African Journal on Human Rights 29, pp 219 –250 (2013)More Less
The Constitutional Court in Carmichele was correct to hold that '[where] the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation'. Anton Fagan's argument that this is false is flawed because he misquotes, misrepresents and misunderstands the Court's argument. Further, Fagan's argument that the spirit, purport and objects of the Bill of Rights is merely a secondary reason for developing the common law that can be trumped by the individual moral views of judges, is also flawed. It is based on a mischaracterisation of the Hart-Fuller debate that is both unconvincing and inappropriate. Both he and Stuart Woolman are incorrect to elevate rights over the spirit, purport and objects of the Bill of Rights. The s 39(2) approach to developing the common law does not make the Bill of Rights vanish; rather, it provides a mechanism for bringing horizontal rights to fruition. Finally, s 39(2) is not merely a mechanism for achieving coherence, it is a mechanism for achieving a coherent and just legal system that is superior to Fagan's preferred mechanism of leaving justice up to the individual moral convictions of judges.
Service delivery protests, struggle for rights and the failure of local democracy in South Africa and Uganda : parallels and divergencesAuthor Christopher MbaziraSource: South African Journal on Human Rights 29, pp 251 –275 (2013)More Less
Although the two countries are thousands of miles apart, Uganda and South Africa have both experienced service delivery protests in recent years. The protests have been directed mainly at local governments, although in Uganda some are directed at private service providers such as the electricity distributor, Umeme. There are a number of parallels and divergences between the two countries, particularly in relation to the causes and the nature that the protests have taken. Both countries are experiencing challenges in implementing decentralisation, which has mainly been characterised by a failure to effectively involve local communities in decision-making as a way of effecting local democracy. Mismanagement, corruption, and incapacity to deliver at the local levels are common to both countries. The divergences relate mainly to the level of organisation, frequency and magnitude of the protests. The local government legal framework of Uganda does not emphasise service delivery as much as the South African legal framework does. There is an urgent need for both countries to make local democracy work by building civic competence and creating operational and effective structures for civic participation in local affairs.
Source: South African Journal on Human Rights 29, pp 276 –293 (2013)More Less
The Traditional Courts Bill, should it become law, will intimately affect the daily lives of almost 17 million South Africans. The Bill seeks to give recognition to traditional leadership and its role in the dispensation of criminal and civil justice. Women form the majority of the rural population where the traditional courts predominantly function. Unfortunately, the Bill, as it currently stands, does not provide the necessary protection to the sector of the population that its implementation will affect the most - women. The Bill is ineffective in lending support to the progressive development that is occurring in customary law in relation to women. Furthermore, there are a number of areas (both civil and criminal) to which the court should not be extended jurisdiction, due to the patriarchal nature of the courts. Moreover, there is a distinct lack of checks on the power of traditional courts, a situation that is exacerbated because of a person's inability to opt out of its jurisdiction. Women are particularly vulnerable to this all-inclusive power, as they form the majority of the rural population where traditional courts predominantly function.
Restoring the 'historical deficit' : the exercise of the right to freedom of religion and culture in democratic South AfricaAuthor Patricia Michelle LenaghanSource: South African Journal on Human Rights 29, pp 294 –313 (2013)More Less
On 18 January 1960, LIFE magazine began a series of articles on democracy around the world. The newly independent nation of Ghana (1957) was featured in Part 1 and the cover photograph was of Augustus Molade Akiwumi, the Speaker of the House in Ghana, dressed in British-style wig and robes. The title of the feature article read, 'Ghana's Leap from Stone Age to Eager New Nationhood'. The feature explains that in Ghana 'Courts are being built, and in lower courts the temporary local judges are being replaced with more qualified appointees to settle local disputes and initiate the people in the mechanics of Western justice'. However in stark contrast to the portrayal of pre-colonial Ghana as 'Stone Age' the Asanti peoples of Ghana developed a complex, hierarchical society and legal system centuries before Europeans ever arrived on the continent. In critical reflection of the magazine cover, this article is founded on demonstrating how the colonial, postcolonial, apartheid and post-apartheid state have through an oppressive stance suppressed indigenous religious and cultural diversity. In addition, it is asserted that the current constitutional arrangements have not at all times effectively dealt with this subjugation. It is presupposed that unless a positive approach towards religious and cultural integrity is displayed and an environment is created in which these rights to freedom of religion and culture may prosper, the constitutional endeavour of establishing unity and solidarity in our diverse society will remain elusive. In conclusion, some approaches to enhancing this constitutional endeavour are proffered.
Balancing the best interests of the child and the interests of society when sentencing youth offenders and primary caregivers in South AfricaAuthor Admark MoyoSource: South African Journal on Human Rights 29, pp 314 –350 (2013)More Less
In the context of sentencing children in conflict with the law, the need to balance the best interests of the child and the interests of society replays the ideological tension between the welfare model and the justice model of juvenile justice. The welfare model of juvenile justice emphasises the rehabilitation needs of the offender and the justice model stresses due process and accountability for one's conduct. Yet, sentences imposed on many offenders usually carry elements of both models and there are indications that South Africa has adopted another emerging model of juvenile justice - the restorative justice model. Generally, the type of sentence to be meted out is determined by the nature and gravity of the offence; the circumstances of the offender; and the interests of society. This triadic method has been codified in the Child Justice Act as the criteria for determining sentences that balance the interests of the child and those of society. When sentencing primary caregivers, the courts are also required to balance the interests of society and the best interests of the child(ren) of the primary caregiver. In this instance, the courts should be mindful that it is not the child who has committed an offence, but an adult who has the capacity to understand the implications of his or her conduct for the social, moral, intellectual and physical development of their child. However, the bench is bound to ensure that the interests of the child are not severely negatively affected by the imposition of custodial sentences where other non-residential alternatives could be appropriate for the offence committed by the primary caregiver. In the two cases that were decided by the Constitutional Court, much turned on the availability or otherwise of other appropriate caregivers who were willing to take care of the children during their mothers' incarceration.
The horizontal application of the Bill of Rights : a reconciliation of sections 8 and 39 of the ConstitutionAuthor Deeksha BhanaSource: South African Journal on Human Rights 29, pp 351 –375 (2013)More Less
Whilst the judiciary accepts that the Bill of Rights must apply horizontally, there remains considerable ambivalence about the precise interplay between the Bill of Rights and private law; an ambivalence that reveals itself in the debate about the extent to which, and the manner in which, our traditional system of private law should be constitutionalised. In this article, I revisit the South African concept of horizontality with a view to determining precisely how ss 8 and 39(2) of the Constitution envisage the constitutionalisation of private law. To date, the horizontality debate has focused largely on whether direct or indirect horizontal application is to be preferred, with s 8 generally being associated with direct horizontality and s 39(2) with indirect horizontality. I argue here that this position is flawed. In particular, I show that ss 8 and 39 of the Constitution largely transcend the direct-indirect horizontality debate. I then go on to explain the distinct roles that each subsection is required to play if our courts effectively are to constitutionalise our private law.
Meaningful engagement : proceduralising socio-economic rights further or infusing administrative law with substance?Author Shanelle Van der BergSource: South African Journal on Human Rights 29, pp 376 –398 (2013)More Less
This article focuses on a point of interaction between socio-economic rights and administrative justice, namely meaningful engagement. Meaningful engagement has developed into both a requirement for a reasonable government policy in socio-economic rights cases as well as a remedy where inadequate engagement occurred prior to litigation. It has been alternately praised as an innovative remedy and criticised as a further proceduralisation of socio-economic rights adjudication. However, in cases where socio-economic rights and administrative law overlap, the value of meaningful engagement may lie in recognising it as potentially infusing administrative justice's requirement for procedural fairness with normative substance rather than as a further watering down or proceduralisation of socio-economic rights jurisprudence. For the benefits of such a conceptualisation to be exploited, courts must display a greater willingness to recognise and develop the important link that exists between administrative justice and the realisation of socio-economic rights in many cases.
Access to safe abortion as a human right in the African region : lessons from emerging jurisprudence of UN treaty-monitoring bodiesAuthor Charles NgwenaSource: South African Journal on Human Rights 29, pp 399 –428 (2013)More Less
Each year, unsafe abortion causes the death of thousands of women, rendering them seriously ill and disabling many more in the African region. Highly restrictive abortion law is a major causative factor. Among United Nations (UN) treaty-monitoring bodies, there is a growing, albeit incremental, recognition of access to safe abortion services as a human right. Against the backdrop of abortion regimes that impede access to safe abortion in the African region, this article takes critical stock of the contribution that UN treaty-monitoring bodies are making towards the development of jurisprudence that conceives access to abortion as a human right. Its main focus is on critically appraising three decisions made by UN treaty-monitoring bodies, namely, KL v Peru; LMR v Argentina; and LC v Peru under Optional Protocols and drawing lessons for the African region.
In defence of the right of religious associations to discriminate : a reply to Bilchitz and De FreitasAuthor Patrick LentaSource: South African Journal on Human Rights 29, pp 429 –447 (2013)More Less
In a recent Special Issue of the South African Journal on Human Rights (SAJHR) devoted to the theme 'religion and human rights', David Bilchitz and Shaun de Freitas reply to arguments advanced by me in support of according religious associations a right to discriminate on grounds such as gender, sexual orientation and race in their employment practices relating to positions sufficiently close to the religion's doctrinal core. Bilchitz continues to think that I allow too much discrimination on the part of religious associations. He rehearses arguments in defence of his view that religious associations should not be allowed to discriminate in employment practices on otherwise prohibited grounds and presses new objections to the position I favour. By contrast, De Freitas is of the view that I do not afford religious associations enough opportunity to discriminate. Between them, Bilchitz and De Freitas charge that I 'owe' several arguments. I offer here a final reply to Bilchitz and De Freitas in defence of the right of religious associations to discriminate, as I understand it. Although I respond towards the end to a criticism of my position by De Freitas, most of this article is given over to a reply to Bilchitz, whose arguments represent the more drastic challenge to my claim that religious groups should be permitted sometimes to discriminate. My purpose is to show that, although he contends adroitly in support of denying to religious associations a right to discriminate, Bilchitz's efforts are unavailing. His arguments are not nearly strong enough to justify denying to religious associations a right sometimes to discriminate.
Transformation of the judicial system in a constitutional democracy : in the shadow of Bram Fischer : discourse and debate - Inaugural Bram Fischer Memorial LectureAuthor N. Barney PityanaSource: South African Journal on Human Rights 29, pp 448 –459 (2013)More Less
South Africa has been endowed with towering and inspirational figures in her history. In many respects many of these represent the conflicted race and economic colonial history of the country. One might therefore be excused for taking a circumscribed view of that history depending on one's social and political orientation. For good or ill, for better or for worse, they have shaped the history of this land. Among such figures, surely, and with the benefit of hindsight and history, the name of Advocate Abram Louis Fischer, more commonly known as Bram Fischer, is writ large.
Author Catherine AlbertynSource: South African Journal on Human Rights 29, pp 460 –464 (2013)More Less
In 2010, the United Kingdom enacted a comprehensive Equality Act to replace nine separate pieces of anti-discrimination legislation addressing race, gender, disability, religion or belief, sexual orientation and age. The Equality Act is a wide-ranging statute that applies uniform ideas of discrimination and harassment across these different grounds, and imposes positive duties on public (but not private) authorities to eliminate discrimination and promote equality. The product of over 13 years of research and advocacy, it is a thoroughly modern piece of legislation that seeks to advance formal, substantive and transformative equality through law.