- A-Z Publications
- South African Journal on Human Rights
- Previous Issues
- Volume 27, Issue 3, 2011
South African Journal on Human Rights - Volume 27, Issue 3, 2011
Volume 27, Issue 3, 2011
Source: South African Journal on Human Rights 27, pp 381 –397 (2011)More Less
In care and protection cases state representatives frequently require children to undergo physical, psychological or other examination. The purpose is usually to assess likelihood of future harm from causes such as abuse or neglect. Such assessments may derive useful evidence, and this may be particularly valuable where children's court litigation is envisaged. However, from a children's rights perspective there are some difficulties that have not been sufficiently addressed in South Africa. Children may in some cases experience assessment processes as highly demeaning and invasive forms of secondary systemic abuse. The international evidence also shows that inadequate or inappropriate forms of assessment are often utilised. Particularly where children are without proper legal representation, incorrect assessments may carry undue weight in court. We show that current South African legislation in the form of the Children's Act 38 of 2005 and regulations falls far short of what is required when measured against a children's rights standard. We recommend amendments that will support children's ability to participate meaningfully in decision-making about care and protection assessments.
'Collateral irony' and 'insular construction' - justifying single-medium schools, equal access and quality educationAuthor Marius SmitSource: South African Journal on Human Rights 27, pp 398 –433 (2011)More Less
In Ermelo the Constitutional Court determined that the HoD has the power to withdraw any function of a school governing body (SGB), including the function to determine the school's language policy, subject to the requirements of reasonableness and legitimacy of purpose. The Court held that an 'insular construction' of the SGB's obligation to determine an appropriate language policy for the school community would thwart the transformative design of the Constitution. The SGB must also consider the interests of the broader community and potential learners. This Court's decision seems to have sounded the death knell for undersubscribed Afrikaans-only schools. However, the Court chose to address only the structural issues of equality and fairness in the South African education context, but failed dismally to adjudicate the substantive issues of reasonableness of state action and quality education in the language of one's choice. As a result, the Court's reasoning and decision provides insufficient guidance to assist schools or the state to determine appropriate language policies for schools within the constitutional and concrete contextual factors. Single-medium schools are entitled to contest the reasonableness of state action by virtue of factors such as the value of mother-tongue education, the negative impact of language policy change on the quality of education, the countrywide pattern of unfair discrimination against Afrikaans schools, and importantly, the clear international policy that liberal democracies provide public mother tongue education for minorities.
Author James FowkesSource: South African Journal on Human Rights 27, pp 434 –465 (2011)More Less
Indian Public Interest Litigation (PIL) is a creative and widely-noted model for broadening access to justice and facilitating the proper hearing of important issues even if they are not backed by resources. The model holds obvious appeal for South Africa, where these are pressing concerns. PIL has, however, enjoyed distinctly mixed success in India. This article draws on the model and the Indian experience of it to propose a PIL model for South Africa, more modest than India's, but designed to be resistant to the problems India has experienced and to be a practical proposal that both the government and the judiciary could support. The paper seeks to show how such a model can expand the number and diversity of people who can access the courts, improve the ability of the courts to remedy constitutional violations, and potentially bolster judicial status and independence.
Blue Moonlight rising : evictions, alternative accommodation and a comparative perspective on affordable housing solutions in JohannesburgAuthor Gerald S. DickinsonSource: South African Journal on Human Rights 27, pp 466 –495 (2011)More Less
The City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd is a welcomed addition to the eviction jurisprudence in South Africa. Courts have jostled for years with the question of whether socio-economic rights should be enforced in the context of adequate housing and evictions. Today, the central questions in comparative constitutional law deal with how courts should enforce such rights. In other words, what are the remedies for violations of socio-economic rights? The usual proposed remedies are coercive orders aimed at guaranteeing occupiers the denied rights directly, planning orders, or procedural benefits. Amidst Blue Moonlight's increased interest amongst academics, practitioners and jurists, as an example of South Africa's 'new normality assumption' and its realisation of procedural benefits to people facing imminent eviction from private property, is a comparative housing policy yet to be discovered and considered in South Africa. A policy-oriented interpretation of the text of the lower Court's opinion in Blue Moonlight reveals the policy blueprint of several housing voucher programmes currently operating in the United States that may serve as a new model on how to enforce socio-economic rights for occupiers facing imminent eviction - the Blue Moonlight remedy. Vouchers are a primary mechanism for providing affordable, safe and decent housing to the poor in the US and ought to be considered by academics, policy-makers, jurists and public officials as one of many potentially innovative solutions to Johannesburg's housing woes.
Source: South African Journal on Human Rights 27, pp 496 –521 (2011)More Less
In February 2009 the Department of Justice and Constitutional Development introduced a Bill on the proposed National DNA Database (NDSSA). This Criminal Law (Forensic Procedures) Amendment Bill is the framework within which a DNA intelligence database for South Africa was to be established. On 4 November 2009 the relevant parliamentary portfolio committee decided to split the Bill viz to continue with the enactment of fingerprint amendments, but to refer the DNA sections back to the Minister of Justice and Constitutional Development to be re-worked. This article discusses the problems that can arise from ill-drafted Bills in respect of the establishment of DNA databases; it indicates how these can impact on the human rights of individuals; it comments on the limitations of the capabilities of a DNA intelligence database and suggests how errors in the implementation of the Bill can be adequately controlled. Issues that arise in drafting legislation for a South African DNA database for intelligence purposes are scrutinised in order to determine whether such a DNA database is indeed the panacea that many believe it would be; or whether it is just another aspect of the dangers associated with a panoptical or surveillance society. The article proposes a middle perspective that acknowledges the dangers inherent in establishing a DNA database, but which also acknowledges the eventual benefits.
Author Aninka ClaassensSource: South African Journal on Human Rights 27, pp 522 –545 (2011)More Less
The imposition of 'tribal levies' was a flashpoint for the anti-Bantustan rebellions of the 1980s. Rural people objected to traditional leaders demanding excessive levies that were not adequately accounted for. The Constitution authorises only the three levels of government to tax, and circumscribes taxation power in various ways. Yet rural people report a resurgence of demands for tribal levies in all the former homelands, and in 2005, the Limpopo Traditional Leadership and Institutions Act provided for the imposition of 'traditional council rates'. This article describes the upsurge of tribal levies in the context of the ambiguity of recent laws and policy in respect of traditional leadership and tribal taxation. It argues that tribal levies are inconsistent with the Constitution and that they derive from colonial and apartheid laws and distortions, rather than from customary law per se. It focuses on Limpopo Province.
Source: South African Journal on Human Rights 27, pp 546 –557 (2011)More Less
Finding ways to eradicate the dire poverty that afflicts South Africa is perhaps one of the most pressing challenges in the 21st century. Some regard this as a pure matter of policy, upon which economists, social scientists and politicians must decide. The Constitution of the Republic of South Africa, 1996, however, gives an important role to lawyers and judges in dealing with socio-economic deprivation by including justiciable socio-economic rights in the Bill of Rights. Determining the meaning, and appropriate role of the judiciary in their enforcement were matters that were hotly contested during the drafting of the South African Constitution. Those questions have continued to elicit academic and judicial engagement subsequent to the adoption of the final Constitution in 1996. Prof Sandra Liebenberg's 2010 book Socio-Economic Rights: Adjudication under a Transformative Constitution charts the history of the inclusion of these rights in the South African Bill of Rights. It engages with the key debates surrounding these rights and provides an approach as to how these should be resolved. It is clearly written, lucid and excellently researched. The book thus represents a significant contribution to the literature on socio-economic rights and it indeed demonstrates the accumulated knowledge and understanding gained through the author's impressive body of research in this field.
Author Leslie-Anne WoodSource: South African Journal on Human Rights 27, pp 558 –565 (2011)More Less
The bulk of South Africa's current access to information regime emerged in 2001, when the Promotion of Access to Information Act 2 of 2000 (PAIA) came into force. Pursuant to this constitutionally-mandated legislation, both private and public bodies are now obliged to compile a manual providing basic organisational and archival information. The purpose of this reference tool is to facilitate the information request process and thereby empower individuals to exercise their right of access to information. The coming into force of the Judicial Matters Second Amendment Act of 2003 in March 2005 meant that public body information officers or heads of private bodies who failed to comply with manual-related duties would henceforth expose themselves to criminal sanctions. The uniquely coercive nature of these measures underscores the crucial role that information manuals play in implementing the vision of PAIA. The reality, however, is that despite its enduring prevalence, non-compliance has yet to form the basis of a criminal prosecution. This trend points to the inadequacy of the current enforcement mechanism.
Source: South African Journal on Human Rights 27, pp 566 –581 (2011)More Less
This note provides descriptive statistics on the work of the Constitutional Court of South Africa in 2008, 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 South African Journal on Human Rights (SAJHR). Part I covers those decisions in which the Court produced a written judgment while part II covers applications for leave to appeal that were considered in chambers and dismissed without a judgment being given.
Source: South African Journal on Human Rights 27, pp 582 –599 (2011)More Less
The topic of my lecture is 'People's Power and the Courts'. In the mode of all good preachers, I start with a text. In fact I have three :
- The Freedom Charter proclaims: 'The People Shall Govern!'
- President Zuma, in his recent address in the National Assembly bidding farewell to Chief Justice Ngcobo and welcoming Chief Justice Mogoeng, said: 'The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote'.
- The Constitution says that one of the founding values of the Republic of South Africa is 'a multi-party system of democratic government, to ensure accountability, responsiveness and openness'.