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- Volume 29, Issue 3, 2013
South African Journal on Human Rights - Volume 29, Issue 3, 2013
Volume 29, Issue 3, 2013
Source: South African Journal on Human Rights 29, pp 465 –466 (2013)More Less
During 2012 a research project on the relationship between law and poverty, titled Poverty and Justice, was launched in the Faculty of Law of the University of Pretoria. The starting point and broad background to the project is the assertion that poverty is an injustice and the implicit flipside of that claim, that justice is the absence of poverty. The basic contention of the project is that any view of poverty as a practical social problem in the first place, rather than a manifestation of injustice, results in an approach to poverty that is focused solely on technical and managerial solutions. This kind of approach to poverty is problematic as it obscures the political dimensions of poverty, that is, the fact that poverty is embedded in and arises from a particular ideology. If one defines poverty as inadequate access to basic living resources such as housing, food, water and health care the political dimensions of poverty are brought to the fore. What determines access to these basic resources is economic and political power. Any response to poverty must therefore engage with and take account of power.
Of Dorothy's dog, 'poststructural' fairy tales ... and the real : power, poverty and the general principles of the South African law of contractAuthor Jaco Barnard-NaudeSource: South African Journal on Human Rights 29, pp 467 –480 (2013)More Less
South African precedent does not allow for the consideration of the validity or enforceability of a contract in terms of the good faith principle. Yet, the principle of good faith permeates the foundational ideals and the spirit of South Africa's post-apartheid Constitution. After re-emphasising the by now trite point that all legal rules have distributive consequences and that the common law represents a set of political choices, the article discusses the philosophical history of good faith and defends it as the primary transformative ethical device of the general principles of contract law, arguing that an elevated status for good faith in contract is implicit in the post-liberal reading of the Constitution and the ills that such a reading seeks to address. With reference to the work of Michel Foucault, the article concludes that curial consideration of the question whether a party to a contract has abused her bargaining power, forms a critical part of the transformative work that contract law is (also) constitutionally mandated to do.
Author Melanie MurcottSource: South African Journal on Human Rights 29, pp 481 –495 (2013)More Less
Joseph v City of Johannesburg has been both applauded by administrative lawyers, as a case in which formalism was rejected and a substantive model of administrative law adjudication was embraced, and condemned by human rights lawyers, as a case that focused on procedural fairness rather than 'the hard rights of citizens and their plight'. I argue that because Joseph concerned a group of poor and vulnerable occupiers of an inner-city building deprived of their electricity, resulting in an inability to meet their basic needs: to cook, refrigerate their food, heat their homes, do homework, operate medical equipment, etc, Joseph is primarily a socio-economic rights case in which a requirement of the administrative law, procedural fairness, was invoked so as to protect and enforce a right to electricity. I critique the administrative law strategy invoked on behalf of the occupiers in Joseph to enforce the occupiers' claim to have their electricity reconnected; the courts' treatment of that strategy; and whether it is an effective and, if so, desirable tool for the enforcement of socio-economic rights in the future.
Author Caroline NicholsonSource: South African Journal on Human Rights 29, pp 496 –514 (2013)More Less
Surrogacy is a complex issue that evokes a strong moralistic response. In South Africa, commercial surrogacy is illegal and surrogacy agreements that contain financial incentives beyond expenses associated with the pregnancy and birth are unenforceable. Despite this, commercial surrogacy appears to remain a reality in South Africa. Further, given the pervasive poverty that exists in the country, the question arises, should commercial surrogacy be permitted as a means to alleviate the dire circumstances of poverty-stricken women and those dependent on them. I seek to answer this question by taking a close look at the nature of surrogacy, some of the arguments for and against it, and the Indian model of commercial surrogacy as a potential model for commercial surrogacy in South Africa.
Lived experiences of the Choice on Termination of Pregnancy Act 92 of 1996 : bridging the gap for women in needAuthor Camilla PicklesSource: South African Journal on Human Rights 29, pp 515 –535 (2013)More Less
The Choice on Termination of Pregnancy Act 92 of 1996 embodies a laudable and liberal ideal, namely that the course of a woman's life does not have to be determined by her reproductive capacity. Instead, she has the right to free, non-therapeutic termination of pregnancy in a safe environment, a right which exists up to the end of the second trimester. Dignity, equality, and security of the person are therefore the foundation stones of the right. However, this is not the case for women with limited means who have no choice but to rely on the public provision of termination-of-pregnancy services. Studies of women's lived experiences of the implementation of the Act show that there are barriers to accessing termination-of-pregnancy procedures that need to be removed if they are to enjoy this right fully. Not least of these barriers is the state's failure to fulfil its s 27 obligations in terms of the Constitution of the Republic of South Africa, 1996, as well as its far-reaching inaction in engaging with the implementation of the Act. Numerous other barriers exist at the provider and community level. Only through the removal of such barriers and with the state's fulfilment of its obligations will it be possible to translate the provisions of the Act into their envisaged implementation, thus guaranteeing all women in South Africa (regardless of socio-economic standing) the right to safe and quality termination of pregnancy that is accompanied by dignity, equality and security of the person.
Author Reghard BritsSource: South African Journal on Human Rights 29, pp 536 –553 (2013)More Less
The sale in execution of immovable residential property amounts to a deprivation of property in terms of s 25(1) of the Constitution. Since no law may permit arbitrary deprivation of property, it is necessary to ensure that the law of mortgage foreclosure also avoids this unconstitutional result. The principle is that a deprivation of property will be arbitrary if there is 'no sufficient reason' for such an interference with a debtor's property. If residential property is sold in execution despite the fact that there are alternative ways to achieve the mortgagee's purpose (namely, debt enforcement), the resultant deprivation will be arbitrary, since there is no sufficient nexus between the purpose of the deprivation and the effect that it has on the individual debtor. The need to scrutinise mortgage foreclosures on a case-by-case basis is especially important in the poverty and justice context, since the forced sale of and eventual eviction from the home will often cause or exacerbate the debtor's socio-economic hardship. Based on the subsidiarity principles, it is argued that the requirements of s 25(1) can be fulfilled through the correct interpretation and application of the National Credit Act's debt relief mechanisms - especially debt rearrangement - to the degree that they serve as viable alternatives to sales in execution.
Source: South African Journal on Human Rights 29, pp 554 –570 (2013)More Less
There are circumstances in which it is essential to join a party because of the interest that party has in the matter. The underlying principle is that interested parties should be afforded an opportunity to be heard in matters in which it has a direct and substantial interest. Applications for the eviction of unlawful occupiers from private land in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) has been framed in a particular manner since 2004 that created a 'stalemate' between the rights of private owners and the rights of unlawful occupiers. The only way to move beyond the stalemate is to join the municipality in whose jurisdiction the land falls. However, the high courts, in a series of six reported judgments, have not adopted a uniform approach in their reasoning for this joinder. They have relied on a combination of arguments founded on the cumulative force of the notice requirement in s 4(2) of PIE, the requirement to attempt mediation in s 7(1) of PIE, and finally, the constitutional and statutory obligations of municipalities. The overall impact of this reasoning is not convincing. This article revisits the legal framework that the Supreme Court of Appeal and the Constitutional Court have employed in the five judgments it handed down on the issue of joinder in PIE eviction cases. In so doing this article identities more clearly the constitutive requirements for necessary joinder within a constitutional matrix. The directness of the interest will be explored with reference to the statutory obligations that flow from the Housing Act 107 of 1997 and the Local Government: Municipal Systems Act 32 of 2000. The substantial nature of the interest will be explored with reference to the filing of reports flowing from the joinder.
Author Sue-Mari MaassSource: South African Journal on Human Rights 29, pp 571 –590 (2013)More Less
Tenure status is one of the core elements in the poverty cycle and insecurity of tenure exacerbates poverty. Policy-makers and the legislature should respond to this component of the poverty cycle through the introduction of secure housing options in order to ensure that all individuals can actively participate in society and live autonomous, dignified lives. In a number of jurisdictions, including Germany, the United States and England, legislatures have responded to the plight of the poor during emergency housing (and economic) conditions by introducing social housing sectors as part of the landlord-tenant framework. Key components of social housing is that it is a statutory mechanism that introduces affordable, secure housing options for the poor, which is provided by independent, private institutions and requires continuous state administration since the whole sector is state-driven. The South African social housing sector, which forms part of the landlord-tenant framework, is founded in the Social Housing Act. The operation and aims of the Act (and the current social housing sector, in general) requires critical analyses from a comparative law perspective. Innovative social housing options in the landlord-tenant framework are essential in contributing to the improvement of secure tenure rights for poor households and consequential eradication of poverty. Nevertheless, a paradigm shift regarding the contemporary use of rental housing to provide substantive tenure rights for poor tenants on private property is necessary at both public and private levels in order to, not only engage with this form of housing, but also identify plausible situations where it can be imposed.
Author Michael DafelSource: South African Journal on Human Rights 29, pp 591 –614 (2013)More Less
The extent to which non-state actors play a role in the realisation of socio-economic rights is a contentious issue. In South Africa, and in the context of housing rights, the Constitutional Court has, in part, employed the negative obligation of the s 26(1) right of access to adequate housing to define the role of non-state actors. Although the central feature of the negative obligation is to inhibit state and non-state actors from interfering with another's housing resource, the negative obligation's impact is far more complex. The court has utilised the three components of the negative obligation, namely the state's duty to respect, the state's duty to protect, and the non-state actor's duty to respect to regulate the relations of non-state actors. First, the state's duties require the establishment of a legal framework that allows for the judicial evaluation of competing private rights; and, second, the non-state actor's duty, if it finds application, permits the courts to impose positive or financial obligations on non-state actors. This framework reveals that non-state actors are limited duty bearers and role-players in the realisation of another's housing right.
Author Serges Djoyou KamgaSource: South African Journal on Human Rights 29, pp 615 –650 (2013)More Less
In Africa, sanitation remains one of the most important developmental challenges that is not adequately addressed. In many countries, though sanitation is fundamental to human well-being, there is no recognition in the Constitution of a fundamental right to basic sanitation. Legislation and policies often govern the area and the question arises as to whether this offers sufficient protection for the interests involved. This article calls for an express constitutionalisation of the right to sanitation. This call is based first on the importance of the right; second, on the need to do justice to the historical context in many countries (with a particular focus on South Africa); third, for reasons related to a better enforcement of the right; and, fourth, because the prospect for successful monitoring by non-judicial bodies is enhanced. However, the article also recognises that it is unwise to meddle with the Bill of Rights of an existing constitution so to insert the right to sanitation expressly. In such situations, the right to sanitation can be recognised efficiently through developing the content of other rights that are expressly recognised. The article considers the link between the right to sanitation and a range of rights comprising the rights to housing, health, food, water, environment, education, freedom and security of persons, privacy and the right to life. The article concludes that sanitation deserves express recognition in constitutions, especially in countries undergoing constitutional reforms or adopting a new constitution.
Author Tracy-Lynn HumbySource: South African Journal on Human Rights 29, pp 651 –665 (2013)More Less
The storm swirling around the mining of ancient sand dunes near the town of Mtunzini raises issues that are becoming increasingly prominent as the mining boom facilitated by the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) transforms rural South Africa. National and international mining capital, in alignment with local tribal authorities, are pressing for the dune mining to commence as soon as possible, citing job creation and development. The white, middle-class residents of Mtunzini village oppose the new development in principle, but in conceding that mining may have to take place are nevertheless insistent that all required regulatory authorisations are obtained, including a development authorisation in terms of the KwaZulu-Natal Planning and Development Act 6 of 2008 (KZN PDA). The municipal authority of the area, Umlalazi Municipality, appears to be split down the middle with the mayor coming out in support of the mining project, but officials of the municipality supporting the Mtunzini Conservancy in their quest to ensure that Tronox KZN Sands (Pty) Ltd obtains local planning authorisation for the project.