South African Journal on Human Rights - Volume 31, Issue 1, January 2015

South Africa marked 20 years of constitutional democracy when it went to the polls in May 2014. Voting is a particularly significant and moving occasion in South Africa: individuals waiting in the queues to cast their ballots are acutely aware of how the majority were excluded from the franchise; and, definitively, embrace a form of civic equality where every individual's voice counts. Given this history, the five successful free and fair national elections, held in South Africa since 1994, are a significant achievement. Yet, increasingly, they are seen not to be enough to guarantee a vibrant democracy. Individuals wish to participate in decisions that affect their lives more frequently than once every five years. The political system itself is often seen to create too much distance between the electorate and their representatives and there has been the domination of the political sphere by one party since 1994. The funding of political parties is once again in the spotlight as is the democracy within political parties themselves.

Sections 59(1)(a), 72(1)(a) and 118(1)(a) of the Constitution require the national and provincial legislative bodies to facilitate public involvement in their legislative and other processes. This article considers the jurisprudence developed by the Constitutional Court thus far in the five cases concerning the facilitation of public involvement in legislative decision-making processes. The court adopted a reasonableness standard of review for purposes of determining whether, in each case, the constitutional obligation to facilitate public involvement has been met. Drawing on literature and a comparison with work in the field of socio-economic rights, I argue that to be meaningful and effective, a reasonableness enquiry requires a substantive engagement with the purposes underlying the relevant provision[s] in the Constitution. In the first two public involvement cases, I contend that the court's development of the reasonableness enquiry was promising, as it sought to engage substantively with the understanding of democracy that is envisaged in the Constitution. The court developed an approach to the use of reasonableness, as a standard of review, in a manner that achieves participatory democracy, as an element of South Africa's deep vision of democracy envisaged in the Constitution. However, unfortunately, the last three public involvement cases tend to show the court as working with a compliance- or process-oriented reasonableness enquiry. The court here evinces a weak engagement with the purposes and values which the constitutional obligation to facilitate public involvement seeks to achieve. I argue that, for the future development of jurisprudence and our constitutional democracy, the court should revert to its earlier coherent and constitutionally principled approach.

South Africa's democracy has both representative and participatory elements. The participatory aspect of democracy enhances the civic dignity of citizens by empowering them to take part in decisions that affect their lives. However, the overbearing role that political parties play in the South African democracy runs the risk of limiting the ability of citizens to participate effectively in decisions that impact on their lives. This is because the leaders of political parties (especially of governing parties) may wield enormous power and influence inside their respective parties and in the legislature and executive. Where the ordinary members of parties have little or no direct say about the formulation of the policies of the party they belong to or the election of its leaders or those who will stand for election as public representatives at national and provincial level, the ability of such members to participate in democratic processes and decisions are limited. To facilitate the participation of party members in the activities of a political party to ensure the enhancement of their civic dignity s 19(1)(b) of the Constitution guarantees the right of every citizen freely to make political choices, including the right to participate in the activities of, or recruit members for, a political party. In Ramakatsa v Magashule the majority of the Constitutional Court affirmed the importance of the right of party members to participate freely in the activities of the political party they belong to and also found that the constitutions of political parties have to ensure this happens. Provisions of a political party's constitution can be declared invalid if it fails to comply with the provisions of the Bill of Rights (including s 19(1) (b)). This article contends that Ramakatsa can be interpreted to place a positive duty on the legislature to pass a 'party law' that sets minimum requirements to protect the democratic participation of party members in the activities of the party - including about the formulation of party policies, the election of party office bearers and the selection of the party's candidates for election as public representatives.

Ramakatsa v Magashule signifies the first time the Constitutional Court permitted an individual to base a cause of action against another non-state actor, in this case a political party, solely on the contents of a right entrenched in the Bill of Rights. In doing so, the court moved away from the development of the common law in terms of s 8 or s 39 (2) of the Constitution as the means to incorporate constitutional rights or values into the law that regulates the legal relationship between non-state actors, and, in effect, recognised a third methodological pathway through which fundamental rights applies horizontally between non-state actors. Following this seminal decision, it is necessary to modify South African constitutional theory on horizontal application to reflect the three means through which the Bill of Rights applies to private relations. It is also necessary to consider whether the new methodological pathway the court recognised in terms of s 172(1) of the Constitution may apply to other non-state actors.

This article focuses on a particular problem in South Africa - and that has arisen in many developing democracies around the world - concerning the frequent failures of representative institutions adequately to represent and address the interests of the poor. It explores some of the underlying reasons that have been advanced to explain this phenomenon. The article then focuses on the recognition of fully justiciable socioeconomic rights in many modern constitutions and contends that part of their raison d'etre is to offer one means of correcting the flaw in representative democracy that leads to the under-representation of the interests of the poor. The article then seeks to illustrate the political dimension of socio-economic rights through an analysis of some of the case law on the subject in South Africa. It concludes by reflecting on the manner in which, at least partially, socio-economic rights can be seen as a species of political rights and how this contributes further to breaking down the division between different classes of rights.

Across the developing world one of the structural mechanisms adopted to facilitate access to courts is enabling direct access to the highest court. Recognising the role that direct access can play to advance access to justice, the South African Constitution allows direct access to the Constitutional Court when it is in the interests of justice. Somewhat surprisingly given this formal acknowledgment of the potential public interest served through direct access, there has been no comprehensive analysis of the Constitutional Court's direct access practice. This article fills this gap by evaluating - from a pro-poor perspective - the court's approach to direct access. It does so by first outlining the applicable rules and principles governing direct access applications. It then examines the court's direct access record between 1995 and 2013 highlighting that, in stark contrast to the highest courts in other developing countries, the South African Constitutional Court has interpreted its direct access mandate conservatively, seeking to restrict rather than to expand direct access. Thereafter, the article analyses the arguments against and for direct access, before concluding that the court's conservative approach weakens its position in terms of popularising the Constitution and acting as an institutional voice for the poor.

Amici curiae participation plays an important role in litigation and judicial decision-making. The public interest nature of these participations has become particularly important in representing the point of view of those who might be affected by a judgment which could influence the outcome of a decision. Employing amicus curiae participation as specific litigation strategy is of importance in promoting litigation from a feminist and gendered viewpoint allowing feminist method to be employed in constructing effective legal arguments.

No scholar currently defends the majority's decision on voting rights in New National Party v Government of the Republic of South Africa. Its place in the South African canon is one of rejection: a classic mistake, or at least an illustration of the problems of excessive deference, technicality, and/or nervous political calculation. Against this, I argue that the decision is in fact eminently defensible. Its universal rejection is therefore very intriguing: why have so many scholars treated the decision as clearly wrong, and the dissent of O'Regan J as clearly right? One of the reasons is that the majority judgment of Yacoob J is standardly misread, in part because he, confronting issues that were brand new in 1999, uses terms other than those that would soon thereafter become settled in South African constitutional talk. But the deeper and more interesting reason is that currently dominant ways of understanding constitutionalism in South Africa - interlocking ideas about apartheid, about the ANC, about the Constitutional Court and about rights - prime us to view New National Party as a clear error. That it is not, in fact, a clear error, therefore, should lead us to reverse course and reconsider the canonical ideas that label it as such.

The past 30 years have seen a dramatic increase in calls for an inclusive dialogue on children's rights. Roger Hart defines participation as 'the fact of being involved in the decision-making that concerns oneself and that concerns the life of the community in which one lives'. In the context of children's rights, the right to participate refers to every child's right to be heard and to take part in processes that affect their life course. Participation involves having a 'voice' (control of the process) and having a 'choice' (control over the decision). It often comprises four broad levels, which include (a) being informed about a decision that will be or has already been made; (b) being consulted for purposes of expressing a view; (c) having an opportunity to contribute towards influencing outcomes; and (d) making independent decisions (including the right to veto a decision already made by others) provided the child in question has the intellectual and emotional competence to do so. This is the meaning adopted in this article.

Since its onset, the idea of defamation of religion in international law has been wrapped in controversy. Mohammedi v SABC3 is one of the first cases in South Africa to deal with the issue of defamation of religion, resulting in Islamophobia and its possible influences on the right to freedom of expression. Although this case has been heard by a tribunal (Broadcasting Complaints Commission of South Africa, BCCSA) and does not amount to jurisprudence from the Constitutional Court or Supreme Court of Appeal, it serves as one of the first South African cases to address the difficult issue of defamation of religion and the right to freedom of expression.

This note provides descriptive statistics on the work of the Constitutional Court of South Africa in 2010, 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.

This note provides descriptive statistics on the work of the Constitutional Court of South Africa in 2011, 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.

This is such a good book that I have two copies: one in my office and the other one at home. One I consult for solid, current scholarship on the judiciary, the other I simply read for pleasure. My reading an academic work as entertainment (I confess I seldom or never do this) may well be irrefutable proof that I have succumbed either to middle age, middle-class pretentiousness or academic eccentricity. On the other hand, as I console myself, it really is a very good read. Not only because the elegant and eloquent writing so clearly bears the hallmarks of the (in)famous Hoexter editorial hand, but few lawyers can remain indifferent to the intriguing questions of who gets appointed to which bench, who hands down which judgments on which political issues and who agrees or disagrees with whom. The book concerns both the salacious subjects of daily legal gossip around the tea urn and the complicated, contested and serious issues which are crucial to the future of the country.

Sarah Nouwen writes well. One of the most pleasant features of her book Complementarity in the Line of Fire is its readability. Unusual for a legal book on international criminal law, her book combines her personal observations during her time working as a young diplomat in the Sudan with rigorous legal analysis. In his Foreword, Barney Afako describes this as a 'fly on the wall' approach. The first few pages of the book create a sense of suspense and combines humour with profound insights. This stands in stark contrast with many books on international law which suffer from dryness, clichés and uncritical acceptance of received knowledge. The intriguingly ambiguous title of the book hints at what is to come. Nouwen is refreshingly critical of the many standard assumptions of the discipline. She is critical of the notion that enterprises such as the International Criminal Court (ICC) are inherently good, noble and praiseworthy.