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- Volume 30, Issue 3, 2014
South African Journal on Human Rights - Volume 30, Issue 3, 2014
Volume 30, Issue 3, 2014
Proportionality and the incommensurability challenge in the jurisprudence of the South African Constitutional CourtAuthor Niels PetersenSource: South African Journal on Human Rights 30, pp 405 –429 (2014)More Less
The proportionality test is a central doctrine of the individual rights jurisprudence of the South African Constitutional Court. However, one core part of the proportionality test, the balancing of competing interests, is often severely criticised because it is supposed to lack rational standards of comparison. Therefore, many critics of balancing claim that courts make policy decisions by second-guessing legislative value-decisions. This article analyses how the Constitutional Court deals with this critique. It makes a detailed analysis of the case law and finds that the court, in fact, rarely balances when it overturns a piece of legislation. When correcting the legislature, the court usually bases its judgment on other arguments, such as over-breadth, less-restrictive-means, or lack of consistency. However, the court balances when it confirms legislation, or when it corrects common law rules. In both cases, the court does not come into conflict with the political branch so that balancing does not pose any legitimacy issues. In sum, the court is rather concerned with holding the legislature accountable to take decisions that represent all groups of the society than with determining the resolution of deep value conflicts.
Lessons from Kiobel v Royal Dutch Petroleum Company : developing homegrown lawyering strategies around corporate accountabilitySource: South African Journal on Human Rights 30, pp 430 –457 (2014)More Less
In April 2013, the United States Supreme Court handed down the long-awaited judgment in Kiobel v Royal Dutch Petroleum Company, a case alleging corporate exploitation of communities in an oil-rich area of Nigeria. The case examined the Alien Tort Statute (ATS), an old statute allowing non-US citizens to bring claims in US courts for violations of the law of nations. In its judgment, the court limited the application of the ATS. This article explores the holding and reasoning of Kiobel in light of previous ATS jurisprudence, and set against the geopolitical considerations of international human rights frameworks within the US, with a particular focus on what this case means for South Africa and the region. The article queries the continuing need for countries in the Global South, including South Africa, to rely on foreign courts for corporate accountability, particularly given robust domestic legal frameworks that are under-utilised. South Africa, in particular, is best placed to begin the regional dialogue regarding law reform and corporate accountability. Local lawyers and law students must be encouraged to develop creative lawyering strategies in the area of corporate accountability. Finally, the article highlights the need to support communities and individuals most affected by corporate abuse to construct and share their narratives as part of their broader quest for meaningful political and economic justice.
Section 235 of the Constitution : too soon or too late for cultural self-determination in South Africa?Author Bertus De VilliersSource: South African Journal on Human Rights 30, pp 458 –483 (2014)More Less
Section 235 of the Constitution acknowledges the right of cultural groups to self-determination. Giving practical effect to s 235 is a task to be undertaken by a future Parliament. This article explores the concept of non-territorial, also called cultural autonomy, whereby culture groups can establish a legal person clothed with public law powers as an organ of government to make decisions about the protection and promotion of their culture, language and customs. Several case studies where cultural autonomy is applied are referred to and recommendations are made for future consideration in South Africa.
Source: South African Journal on Human Rights 30, pp 484 –507 (2014)More Less
The workplace is an important site of struggle for equality, a struggle mediated by the provisions of the Employment Equity Act. It is within the context of this regulatory framework for both formal and substantive equality, that this article is located. Through the lens of selected case law, the article explores certain barriers to transformation imposed both by the provisions of the law and by poor judicial interpretations and implementation thereof. It identifies and analyses various legal complexities, lacunae and anomalies, as well as concerns regarding aspects of the judiciary's approach to remedies in matters with the potential to impact on workplace transformation. The article concludes with proposals for possible future considerations by the courts, which might better promote race and gender transformation.
Author Letitia PienaarSource: South African Journal on Human Rights 30, pp 508 –525 (2014)More Less
The interplay between the constitutional right to privacy and the right to access to information constitute the parameters within which the issue of access to a child's medical records is explored. The Children's Act and the National Health Act provide for confidentiality pertaining to medical records and encourage participation in decisions affecting an individual's health. The question arises whether existing legislation has been amended to support this right to confidentiality. An inquiry is done to establish if this right to confidentiality entails that the child is vested with the right to refuse access to his/her medical records? Current legislative provisions regulating this issue do not provide a clear answer. Recommendations are made for legislative amendments to bring clarity on this issue and to ensure that the child's right to privacy in the health-care context is optimally protected.
Can teaching be declared an essential service? A comparative analysis of the South African legal position and international labour organisation standardsAuthor Mohamed ChicktaySource: South African Journal on Human Rights 30, pp 526 –542 (2014)More Less
The Right to Education is expressly protected in s 29 of the Constitution of the Republic of South Africa, 1996. While teacher strikes may hamper education - since students are denied instruction during the strike - they may also benefit students. Teachers do not always strike for personal economic gain and do at times strike for better education. In South Africa prior to 1994 teachers often went on strike against the apartheid government's education policy. For example, the Transvaal African Teachers' Association went on a number strikes as a sign of opposition to Bantu education saying that it was to be used to 'produce ignorant ... cheap labour ... of an oppressed people'. In Government of the Western Cape Province v COSATU a number of unionists, including teachers, protested against the poor state of education in the Western Cape.
Author Lisa ChamberlainSource: South African Journal on Human Rights 30, pp 543 –554 (2014)More Less
Standing is about who the appropriate person is to bring a dispute to court. Broad standing provisions are one of the hallmarks of South Africa's constitutional democracy, and standing provisions in the environmental sector are particularly generous. In this context, the provisions of the National Water Act 36 of 1998 (NWA) which regulate standing before the Water Tribunal, as well as a recent line of decisions by the tribunal applying these provisions, are particularly concerning. Part II of this discussion contextualises the significance of standing provisions in the environmental sector. Part III introduces the relevant provisions of the NWA and discusses the problematic way in which the Water Tribunal has been applying these provisions. A recent High Court decision is discussed in part IV, while in part V, the relevant legislative provisions and their application by the tribunal are critiqued from a constitutional and practical perspective. Finally, part VI looks ahead to how the current problems may be addressed.
Author Salona LutchmanSource: South African Journal on Human Rights 30, pp 555 –571 (2014)More Less
On 3 October 2013, the Constitutional Court handed down judgment in the landmark case of the Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development. The case effectively decriminalises sexual conduct between consenting adolescents who are between 12 and 16 years of age. Khampepe J, writing a unanimously endorsed judgment, was at pains to point out from the start that the issue was about whether it is constitutionally permissible for adolescents to be subject to criminal sanctions in order to deter early sexual conduct, and not whether adolescents should or should not engage in sexual conduct or whether Parliament should set a minimum age for such consensual sexual conduct.
Source: South African Journal on Human Rights 30, pp 572 –590 (2014)More Less
This note provides descriptive statistics on the work of the Constitutional Court of South Africa in 2009, organised in a number of tables. The method of constructing each table is given in the text that follows it. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of the SAJHR. Part I covers cases in which the Constitutional Court produced a written judgment, while part II analyses applications that were considered in chambers and dismissed without a judgment being handed down.
The Selfless Constitution: Experimentalism and Flourishing as Foundations of South Africa's Basic Law, Stu Woolman : book reviewAuthor Denise MeyersonSource: South African Journal on Human Rights 30, pp 591 –596 (2014)More Less
In this impressive work, Stu Woolman sets out to provide an original theoretical foundation for South African constitutional law and jurisprudence by drawing on arguments from contemporary philosophy as well as empirical findings from the sciences and social sciences. The interdisciplinary sweep of the book is remarkable: the ground traversed includes philosophy of mind and action, neuroscience, behavioural economics, consciousness studies, evolutionary epistemology, choice architecture, social capital theory, experimental governance, development theory and the capabilities approach.
Author Karen GraaffSource: South African Journal on Human Rights 30, pp 597 –598 (2014)More Less
External interventions and top-down peace processes are increasingly being viewed as inadequate in achieving lasting peace and local-level reconciliation in the post-conflict period. These interventions and processes are generally short-term, often involving international groups negotiating peace agreements between the leaders of the major fighting factions. This can lead to the exclusion of smaller fighting groups and large sectors of the civilian population, resulting in relatively superficial truces and externally-imposed punitive judicial processes, based in foreign countries. Examples of this are the Security Council Resolutions and associated agreements establishing the International Criminal Tribunals for Yugoslavia (ICTY - based in the Hague) and Rwanda (ICTR - based in Arusha). Such approaches do not necessarily contribute to long-lasting reconciliation and restorative justice at the local level or to the inclusion of broad segments of the population in the reconciliation process, and may well result in the conflict breaking out again within a relatively short space of time. As Andries Odendaal submits: 'negotiated peace agreements do not seem to be automatically good for stability and democracy. In more than half of the cases, peace did not last for five years'.