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- Volume 30, Issue 2, 2014
South African Journal on Human Rights - Volume 30, Issue 2, 2014
Volume 30, Issue 2, 2014
Source: South African Journal on Human Rights 30, pp 211 –213 (2014)More Less
As the first black African Chief Justice of South Africa, Pius Nkonzo Langa has been described as a 'human rights lawyer who headed a transforming judiciary and legal profession with strength, humility and dignity'. Pius Langa was born in Bushbuckridge on 25 March 1939. In 1977, he was admitted as an advocate of the Supreme Court of South Africa after completing his BIur and LLB degrees from the University of South Africa. He had served as interpreter, prosecutor and magistrate before practising at the Natal Bar where he attained the rank of senior counsel in January 1994. He was appointed to the Constitutional Court in 1994, and in 1997 became its Deputy President. He was appointed Chief Justice and head of the Constitutional Court in June 2005, and served as Chief Justice until his retirement in October 2009.
Source: South African Journal on Human Rights 30, pp 214 –220 (2014)More Less
The inspiration for this SAJHR Special Issue can be found in two significant developments which are historically parallel and complement each another in the sphere of equality jurisprudence. The first is the development of a jurisprudence of substantive and transformative equality under the South African Constitution by the Constitutional Court in the post-apartheid era. The hallmark of substantive equality has been its departure from formal equality and its embrace of inclusion, difference and diversity. Yet, although the Constitutional Court has had occasion to apply substantive equality to many protected groups, others, such as disabled people, still await their turn. This Special Issue seeks to fill this gap by providing a forum in which to tease out some of the equality issues that obtain in disability.
Substantive equality and caregiver responses to discrimination against children with disabilities in Orange FarmSource: South African Journal on Human Rights 30, pp 221 –251 (2014)More Less
The right to equality for children with disabilities in South Africa is strongly secured by various binding international conventions, local legislative and constitutional provisions, as well as state policies designed for the practical implementation of this right. Nevertheless, caregivers of children with disabilities in Orange Farm, near Johannesburg, identify discrimination from family, community members and service providers as a leading issue affecting their lives. These caregivers form part of a Community-based Rehabilitation (CBR) self-help group that aims to empower caregivers of children with disabilities to become politically active and exercise agency in the realisation of their children's rights. This article describes the agentic strategies that caregivers devise in order to access the right to equality for their children with disabilities. This case study examines caregivers' constitutional literacy, self-efficacy, agency and the opportunity structures within which they operate. The environmental and attitudinal barriers described in the Social Model of Disability illustrate the opportunity structure experienced in Orange Farm - a quagmire of discriminatory belief systems, exclusionary practices, and an inaccessible justice system. The interdisciplinary notion of agency - as expounded by Gidden's 'Theory of Structuration', Bandura's notion of 'agency as intentionality' and Foucault's 'strategy of struggle' in power relationships - provides the theoretical framework for describing caregivers' strategies to overcome the barriers they face. These are presented against the backdrop of a detailed analysis of the content of the state's obligation to promote equality. The article concludes with recommendations for making equality more accessible to those who arguably need this right the most.
Global reasonable accommodation : how the convention on the rights of persons with disabilities changes the way we think about equalitySource: South African Journal on Human Rights 30, pp 252 –274 (2014)More Less
This article assesses the potential of the notion of reasonable accommodation as included in the UN Convention on the Rights of Persons with Disabilities. Reasonable accommodation provides a unique case of a domestic concept that has been gradually diffused transnationally, is in the process of being thoroughly internationalised and ought now to be re-domesticated so as to maximise its impact. The record of its domestic implementation so far however is not very promising, at least in countries that do not already have experience with the concept. The article traces some of the conceptual obstacles to implementation of reasonable accommodation including the enduring allure of formal equality, disputes about the meaning of 'reasonable' and the related notion of 'undue burden', the need to evaluate who the obligation applies to, and how it fits within the immediate/progressive realisation dilemma.
Developing juridical method for overcoming status subordination in disablism : the place of transformative epistemologiesAuthor Charles NgwenaSource: South African Journal on Human Rights 30, pp 275 –312 (2014)More Less
The article contributes towards the development of a disability-conscious jurisprudence of equality that, in Nancy Fraser's parlance, speaks to overcoming the 'status subordination' of disabled people. It uses transformative epistemologies of disability found in the social model of disability and feminism as synergic philosophical resources for imagining an expansive and democratic juridical domain of equality. Ultimately, it appropriates the epistemologies to construct syncretic legal method - disability method - as a normative approach for interrogating and remedying disability-related discrimination and inequality. In the process, the article explores the capacity of transformative epistemologies to enrich rather than supplant the jurisprudence of substantive equality developed by the South African Constitutional Court.
Equal recognition and legal capacity for persons with disabilities : incorporating the principle of proportionalitySource: South African Journal on Human Rights 30, pp 313 –344 (2014)More Less
The new approach to legal capacity legislation promoted by the Convention on the Rights of Persons with Disabilities is that all persons with disabilities have full legal capacity on an equal basis with others, but may require support in making certain decisions. Any restrictions on legal capacity must accordingly incorporate safeguards in line with art 12(4) of the Convention, including that the restriction must be tailored to the individual's circumstances and must be proportional to his or her needs. The South African Law Reform Commission has embarked on law reform in this regard and has recommended the Assisted Decision-making Bill to provide for support measures as an alternative and parallel measure to the current curatorship system. Proportionality is not only a standard of judicial review to ascertain whether a legislative measure justifiably limits the right to equality and legal capacity. It is also a principle that must guide any person that provides support to a person with a disability who cannot make decisions independently to ensure that whatever support is provided to him or her to come to a decision regarding his or her welfare or finances, remains proportional to his or her circumstances and needs. The support must not be overbroad, must not negate the autonomy of the person, and even in hard cases, the will and preferences of the person must be sought. The Assisted Decision-making Bill does not sufficiently incorporate the principle of proportionality and other safeguards and will require revision.
The feasibility and desirability of an African disability rights treaty : further norm-elaboration or firmer norm-implementation?Source: South African Journal on Human Rights 30, pp 345 –365 (2014)More Less
The United Nations General Assembly in 2006 adopted the Convention on the Rights of Persons with Disabilities (CRPD), sparking debate in Africa about the desirability and feasibility of adopting an African pendant to this UN treaty. Two main rationales that support an 'African' treaty on the rights of persons with disabilities (PWDs) are examined in this article. The first is a process argument that contends that African participation in the elaboration of the CRPD was inadequate. The second, substantive argument suggests that the CRPD, itself, is defective, as it does not adequately address issues pertinent to and reflecting the life world of Africans with disabilities. Concluding that both rationales lack persuasive force, the authors identify two alternative courses of action. First, they argue that the CRPD should be prioritised and used to its fullest extent before attempts are made to elaborate parallel African standards to the CRPD. Among the measures to be prioritised are increased ratification, domestication, presentation of state and alternative civil society reports, and submission of individual complaints. Second, given that all African Union (AU) member states (except South Sudan) are party to the African Charter on Human and Peoples' Rights, they contend that the existing mechanisms under the African human rights system should first be fully exploited. Although the African human rights system may not have delivered sufficient results when it comes to PWDs, it has taken some tentative steps and has further unexplored potential. There is both a need and the potential for the regional system to play its part in advancing the rights of PWDs. In particular, the African Commission on Human and Peoples' Rights could draw inspiration from the recent adoption of its first General Comment (on art 14(1)(d) and (e) of the Women's Protocol) to spell out the implications of the African Charter for PWDs. Formulating a new treaty is a complex and time-consuming exercise that will further delay the effective implementation of states' obligations. However, if the option of an African-specific treaty gains wide support, it should take the form of a protocol to the African Charter, with the African Commission as monitoring mechanism, and not as a separate treaty with a self-standing treaty monitoring body.
Disability and Reasonable Accommodation : HM v Sweden Communication 3/2011 (Committee on the Rights of Persons with Disabilities) : current developments/case notesSource: South African Journal on Human Rights 30, pp 366 –379 (2014)More Less
The Convention on the Rights of Persons with Disabilities and the Optional Protocol to the CRPD were signed by South Africa on 30 March 2007 and ratified on 30 November 2007. The CRPD is intended to 'promote and protect the rights and dignity of persons with disabilities' in order to 'redress ... the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres with equal opportunities, in both developing and developed countries' and the Optional Protocol is aimed at facilitating the submission of individual complaints against State Parties relating to the CRPD.
Accessibility Obligations in the UN Convention on the Rights of Persons with Disabilities : Nyusti & Takács v Hungary : current developments/case notesAuthor Anna LawsonSource: South African Journal on Human Rights 30, pp 380 –392 (2014)More Less
Article 9 of the United Nations Convention on the Rights of Persons with Disabilities is an innovative provision which articulates, for the first time in a UN human rights treaty, a right to accessibility. Article 9(1) requires States Parties to take:
appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.
Critical Perspectives on Human Rights and Disability Law, Marcia H. Rioux, Lee Ann Basser and Melinda Jones : book reviewSource: South African Journal on Human Rights 30, pp 393 –404 (2014)More Less
This compilation of 16 essays on the intersection between disability law and core human rights principles of dignity, equality and inclusion and participation law is much needed in the field of disability rights and law. Modelled on critical legal studies, critical disability legal scholarship has developed over time with the advent of disability specific anti-discrimination legislation and continues to grow after the coming into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2008. Written by respected and emerging authors, this book contributes to the field of critical disability legal studies through a meticulous study of how domestic law and international law on disability interplays with human rights principles, situated within the social model perspective.