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- Volume 30, Issue 1, 2014
South African Journal on Human Rights - Volume 30, Issue 1, 2014
Volume 30, Issue 1, 2014
Author James GrantSource: South African Journal on Human Rights 30, pp 1 –23 (2014)More Less
This article will engage with the difficult question of whether common purpose could be successfully used to prosecute the surviving Marikana miners for the murder of their fellow miners, shot and killed by the police. It will conclude that this is entirely possible, on the law as it stands. However, I will argue that the law is not what it ought to be. I will argue that common purpose violates fundamental principles of criminal law, beyond the arguments traditionally raised. The one traditional argument raised and rejected by the Constitutional Court in Thebus, which bears repeating, is that it is a violation of the presumption of innocence to attribute causation and that this is not solved, as the Constitutional Court stated, by placing the issue of causation beyond questions of proof for both parties. I will note also that Thebus does not seem to answer the charge that common purpose violates the dignity of an accused. In addition, I will argue that, contrary to fundamental principles, common purpose punishes evil thoughts alone to the extent that it relies upon subjective thought to establish conduct, and it violates the requirement of voluntariness and capacity for self-control because it allows for liability where the accused did not, and could not, control the conduct in question. It allows for the resort to unreasonable force in response to an attack. Furthermore, I will argue that common purpose has an effect which can, in many instances, be met with a valid defence of mistake of law. I will conclude that, if principle is observed, and while fairly broad defences are conceivable, common purpose ought to be abolished as a deep source of embarrassment in our criminal law.
Author Victoria BronsteinSource: South African Journal on Human Rights 30, pp 24 –40 (2014)More Less
This article examines the Constitutional Court's attitude to federalism over the last two decades. The Chaskalson court was affirming and respectful of provincial powers. Justice Ngcobo's majority judgment in DVB Behuising in 2000 epitomised this trend. A decade later Chief Justice Ngcobo wrote the judgment of the court in Tongoane which also showed a powerful appreciation of the constitutional design when it came to provincial powers. These two judgments illustrate a functional approach to federalism, which aims to make the constitutional scheme work as a coherent whole. Tongoane is also an illustration of the previous Chief Justice's preoccupation with facilitating democratic accountability at both national and provincial levels. Justice Ngcobo's nuanced approach to federalism matters makes his last judgment in Limpopo all the more surprising. The tone of the Limpopo judgment is that the court must be on its guard to prevent provincial government from usurping national powers. The decision foists extreme dependence on provincial legislative bodies in practice and on a symbolic level. Strong dissents from Justice Cameron and now retired Justice Yacoob resonate with positions that they had taken during the Chaskalson years. Curiously Justice Ngcobo's final majority judgment with which the new Chief Justice Mogoeng concurs, resonates strongly with a previous attitude to provincial powers taken by Justice Mogoeng in the court a quo in DVB Behuising. Justice Ngcobo respectfully rejected Judge Mogoeng's approach when that case came before the Constitutional Court on appeal. In Limpopo Justice Ngcobo could be seen as adopting the tenor of Justice Mogoeng's previous judgment. Is increasing hostility to provincial powers likely to become a feature of the jurisprudence of the future Constitutional Court?
Author Gustav MullerSource: South African Journal on Human Rights 30, pp 41 –62 (2014)More Less
Courts have recently been at pains to incorporate detailed descriptions of the squalid conditions that prevail in informal settlements and inner-city buildings that have been abandoned by their owners. It has also become customary for courts to include a detailed overview of the history of the occupation to highlight the daily struggles of these unlawful occupiers. Despite this acknowledgment of the realities of the accommodation of impoverished groups, the courts have continued to issue eviction orders that are sought in the name of health and safety considerations or development without any serious regard to the disastrous impact that the evictions and subsequent relocations to distant accommodation will have on the livelihoods of the unlawful occupiers. It is therefore regrettable that the courts do not use the social and historical context of the unlawful occupation that they narrate at the beginning of these judgments to craft context-sensitive eviction orders in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). This lack of real engagement with the intolerable conditions that unlawful occupiers live in significantly reduces the impact that the availability of alternative accommodation has as a consideration. This is furthermore at odds with the principle that courts should be reluctant to evict relatively settled occupiers unless it is satisfied that alternative accommodation is available. This article proposes an organising framework for considering the suitability of alternative accommodation as part of the just and equitable eviction order that a court must grant in terms of s 4(8) and (9) of PIE. This organising framework is based on the categories of people that PIE explicitly requires courts to have regard to in ss 4(7) and 6(3) when considering whether it is just and equitable to evict the unlawful occupiers.
Author Nick FriedmanSource: South African Journal on Human Rights 30, pp 63 –88 (2014)More Less
Despite an initial flurry of interest in the direct horizontality of human rights, the doctrine's place in South African constitutional law is now accorded a diminishing importance in judgments and journals. I argue that this is a result of a misunderstanding, by both courts and academics, of what horizontality is for and how it works. Since direct horizontality, properly understood, is central to the coherent development of South Africa's rights jurisprudence, I aim to reinvigorate debate about horizontality by offering a new and comprehensive account of its mechanics and purpose. The account turns on a distinction between 'horizontality' and 'direct horizontal application', the implications of which run counter to some of the most widely accepted views about the Constitution's influence on the private law.
Source: South African Journal on Human Rights 30, pp 89 –110 (2014)More Less
The specific fundamental human rights protected in the Bill of Rights that come into play when patients make controversial requests for extreme forms of cosmetic surgery are discussed. The meaning of human dignity in South African constitutional law forms the focus of the first part of this article. By applying a constitutional conception of human dignity, the question is answered whether extreme forms of cosmetic surgery most likely promotes or impedes human dignity. In this regard, the relationship between autonomy and dignity and the question whether autonomous individuals should be prevented from participating in activities that might limit their dignity is addressed. The same enquiry is made concerning the other fundamental human rights that are applicable to extreme forms of cosmetic surgery. This includes the right to bodily integrity and the right to privacy. The limitation of these fundamental human rights in terms of s 36 of the Constitution is then addressed.
Author Elsje BonthuysSource: South African Journal on Human Rights 30, pp 111 –133 (2014)More Less
In South Africa, as elsewhere, intimate partner violence is legally addressed through a specific statute, the Domestic Violence Act. Although this legislation is progressive in recognising the socio-economic antecedents to and consequences of gendered violence, the implementation of the Act has been particularly ineffective in this area. Moreover, courts tend to assume that intimate partner violence would have been adequately dealt with in terms of the Act and thus to ignore its impact on other legal issues. This restricts the development of legal remedies for violence in other areas of the law, even as the remedies available under the Domestic Violence Act fail to be implemented. The South African Constitution is progressive in its commitment to gender equality, and also includes a wide range of socio-economic rights. Drawing on international literature, this article will focus on some of the socio-economic rights of the survivors of violence, such as rights to housing and employment, social security and health in order to shift the current paradigms of intimate partner violence, focused primarily on gender. It argues that such a shift can lead to a range of new remedies for survivors of gendered violence, whilst simultaneously strengthening the argument for improved implementation of the socio-economic elements already contained in the Act.
The rhetoric of rape : an extended note on apologism, depoliticisation and the male gaze in Ndou v SAuthor Joel M. ModriSource: South African Journal on Human Rights 30, pp 134 –158 (2014)More Less
In this extended note, I provide a critical reading of the recent Supreme Court of Appeal (SCA) judgment in Ndou v S against contemporary feminist theories of rape and specifically, feminist engagements with the concepts of 'consent' and 'force'. This reading aims to explore, analyse and expose the 'rhetoric' or discourse of rape employed in the Ndou judgment. In other words, it aims to question what rape mythology and normative theory of sex and gender relations was at work in the judge's decision to reduce the sentence of life imprisonment that the appellant had originally received after being found guilty of raping his 15-year-old stepdaughter? What was the broader gender-cultural source of the implicit assumptions that generated the factors the judge identified as constituting the substantial and compelling circumstances that warranted such a reduction?
The right to stand as an independent candidate in national and provincial elections : Majola v The PresidentAuthor Loammi WolfSource: South African Journal on Human Rights 30, pp 159 –182 (2014)More Less
In Majola v The President, the applicant challenged the constitutionality of s 57A read with schedule 1A of the Electoral Act 73 of 1998. In the event of it being declared invalid, the applicant sought an order to the effect that the 2009 general elections be nullified and new elections called. The applicant argued that the current electoral law was in conflict with the political rights guaranteed under s 19 of the Bill of Rights. This, according to the applicant, was the case insofar as the system of pure proportional representation of political parties without any possibility to directly elect representatives does not permit independent candidates to contest elections to the National Assembly and provincial legislatures, hence the application that impugned provisions be declared unconstitutional.
What was left unsaid : the unconstitutionality of the Performing Animals Protection Act in NSPCA v Minister of Agriculture, Forestry and FisheriesAuthor David BilchitzSource: South African Journal on Human Rights 30, pp 183 –195 (2014)More Less
It is rare for cases concerning animal welfare legislation to reach the Constitutional Court. The case of NSPCA v Minister of Agriculture, Forestry and Fisheries is therefore notable in that the constitutionality of sections of the Performing Animals Protection Act 24 of 1935 (PAPA) was placed under scrutiny. Even more importantly, two sections of the Act, which could be regarded as its heart and soul were declared unconstitutional. The Constitutional Court has effectively now placed the government on terms to require a revision of, at least, this piece of legislation.
Democracy in action : the demise of the Traditional Courts Bill and its implications : discourse and debateSource: South African Journal on Human Rights 30, pp 196 –205 (2014)More Less
In February 2014, following years of resistance, the Traditional Courts Bill (TCB), was allowed to lapse in Parliament. This followed intense opposition by citizens in rural areas, the South African Human Rights Commission (SAHRC), the Department of Women, Children and People with Disabilities (DWCPD) and other institutions in the public consultations held by Parliament on the Bill. Despite significant structural and procedural obstacles to participation in these consultations, including the fact that the state assisted only traditional leaders to attend public hearings, many people in rural areas gave eloquent inputs on the Bill. Even though the official word is that the Bill simply lapsed, this is a direct consequence of this national resistance. It is a victory for the thousands of people who opposed the Bill, for the millions of people who will not be forced to live under the separate legal system that the Bill had proposed, and for South Africa's democratic structures which demonstrated responsiveness to public outcry.
Sex and International Tribunals: The Erasure of Gender from the War Narrative, Chiseche Salome Mibenge : book reviewAuthor Letetia Van der PollSource: South African Journal on Human Rights 30, pp 206 –209 (2014)More Less
Feminist narratives on gender politics often accentuate the historical absence of legal precedent for the prosecution of sexual violence during armed conflict. Mostly based on tacit assumptions permeating both cultural and legal discourse, certain accounts of sexual violence become entrenched in legal definitions and conceptions resulting in antiquated gender norms which often relegate women to the permanent status of victimhood.