Showing papers in "South African Journal on Human Rights in 2006"

Adjudicating the socio-economic rights in the South African Constitution : towards 'deference lite'?

Abstract: The record of adjudicating the socio-economic rights in the Constitution of the Republic of South Africa, 1996 reveals a judicial and academic retreat into administrative law and the occasional, mechanistic application of international law. The Constitutional Court has been reluctant to impose additional policy burdens on government or exercise supervision over the executive. This approach has its source not only in the restrictive legal repertoire employed by the Court, but also in the political and economic context in which current legal practice is located. The Constitution invites a transformation of legal concepts. This requires breaking down the division between negative and positive rights, in addition to the adoption of different remedies. The focus should move from ss 26, 27 and 28 of the Constitution towards the distributional implications of all constitutional rights. There is already a small but significant body of decisions of the Court which support the development of more fused conception of rights, including the recognition that the concept of legality may impose positive obligations on the state.

Resuscitating socio-economic rights : constitutional entitlements to health care services

Abstract: Notwithstanding the Constitutional Court of South Africa’s rejection of a minimum core approach to the enforcement of the socio-economic rights in the Constitution of the Republic of South Africa, ...

Court of first instance? Towards a pro-poor jurisdiction for the South African Constitutional Court

Abstract: Despite being premised on a transformative constitution, the South African Constitutional Court has not always functioned as an institutional voice for the poor. This is apparent in the relatively low number of cases brought by poor people, as a percentage of the total number of cases in which decisions are handed down by the Court. This article examines the extent to which the Court can in fact be said to have a pro-poor jurisdiction. In particular, it considers whether the Court's practice regarding direct access applications adequately facilitates the uptake of issues affecting the fundamental rights of poor people. The Court's record indicates that it has failed to utilise the direct access mechanism to allow constitutional matters to be brought directly to it by poor people who have been unable to secure legal representation. In so doing, the Court has failed to live up to its transformative promise. Two recent decisions of the Court - Mnguni v Minister of Correctional Services and De Kock v Minister of Water Affairs and Forestryl/ig - are used to indicate how the Court might pursue a different modus operandi to develop a pro-poor jurisdiction.

Deconstructing the definition of 'disability' under the Employment Equity Act : social deconstruction

Abstract: This is the second instalment of a two-part article on the definitional construction of disability under s 6(1) of the Employment Equity Act 55 of 1998. Part I explored the social construction of disability. It argued that a social construction provides meaningful paradigms in which to understand the epistemology of, as well as formulate normative responses to, disability. Because disability is more than just individual pathology, extrinsic disabling factors are integral to a meaningful interpretation of disability. The main thesis in Part I was that the medical model is a limited paradigm for transacting disability in an equality context, and that the social model offers a more nuanced and holistic approach. Part II builds on Part I and appropriates the social construction of disability to the definitional construction of disability under s 6(1). The essential premises of Part II are that both the medical and social models are essential tools for not only understanding, but more significantly, shaping the legal construction of disability. Where the legislative objective is to prevent discrimination, especially, a construction of disability that fails to transcend the medical model risks not only frustrating, but also distorting, in a fundamental manner, the rationale for anti-discrimination law as a tool for combating systematic disadvantage arising from stigma, prejudice, stereotypes or indifferent attitudes. To avoid anomalies in discrimination law or creating a hierarchy of equalities among protected groups, disability should be interpreted in a manner that, qualitatively, enjoys parity with other protected categories such as race, sex and gender.

Equality and non-discrimination : some analytical thoughts

Abstract: Much of the disagreement and still prevalent confusion about the legal and constitutional meaning of concepts such as 'equality', 'equal,' or 'unequal' is due to inadequate linguistic analysis. These concepts, in order to be meaningful, cannot be used as predicative nouns or adjectives but only as attributive nouns or adjectives ('predicative' and 'attributive' being used in the logical rather than the grammatical sense). The correct approach requires an object to be specified (for example, 'strength', 'musicality', 'intelligence' or 'human dignity / worth') in order that the appropriateness of the attributive term ('equal', 'un-equal', 'equality') be judged. Those who would reject 'human worth' ('dignity', 'menswaardigheid', 'Menschenwurde') as the object and the answer, ought at least to come up with an alternative.

Child rights at the core: the use of international law in South African cases on children's socio-economic rights

Abstract: The Constitution of the Republic of South Africa, 1996, explicitly protects the socioeconomic rights of children and adults. When interpreting these provisions in the Bill of Rights, the Constitution states that international law 'must be considered'. This refers to binding and non-binding international legal instruments such as the treaties and the General Comments made by the supervisory bodies. This article argues that the courts have an essential role to play in the realisation of international human rights law. Analysis of the judgments of the South African courts shows however that there are flaws in their use and enforcement of international and regional human rights law. Analysis of the courts tend merely to mention some of the applicable international law provisions without considering them in sufficient detail. Binding international law relevant to the rights of children is not given the same attention as non-binding international law. It is argued that the courts have not properly defined the scope and content of children's socio-economic rights. Recommendations are made as to how the courts could strengthen their role in promoting the socioeconomic rights of children through the considered use and enforcement of international law.

Recognising the victim in the sentencing phase : the use of victim impact statements in court

Abstract: (2006). Recognising the Victim in the Sentencing Phase: The Use of Victim Impact Statements in Court. South African Journal on Human Rights: Vol. 22, No. 4, pp. 647-663.

The right to Social Security of people living with HIV / AIDS in the context of public sector provision of highly active Antiretroviral Therapy

Abstract: The Social Assistance Act 13 of 2004 and its attendant Regulations establish criteria for the award of grants to people who by virtue of their disability cannot be employed. In terms of these criteria, a person with HIV / AIDS receiving a disability grant, who manages her condition with Highly-Active Antiretroviral Therapy (HAART), will no longer meet the criteria for this form of social assistance. The disability grant is often the only source of income for such a person and, in many instances, for her extended family. A number of people living with HIV / AIDS whose health has improved because of HAART are thus placed in the distressing situation of having to choose between income and health - certainly a dreadful dilemma. This article considers the constitutionality of the Social Assistance Act and its Regulations by evaluating its provisions against s 27(1)(c) of the Constitution of the Republic of South Africa, 1996. Possible responses to the dilemma are considered in relation to the Bill of Rights, existing government policy and socio-economic rights jurisprudence.

Judicial enforcement of the right to protection from arbitrary eviction : lessons from Mandelaville

Abstract: A case study of the exercise of judicial discretion in the enforcement of the right to protection from arbitrary evictions in s 26(3) of the Constitution of the Republic of South Africa, 1996. The article analyses analysing the implementation and impact of court-sanctioned forced eviction and relocation of Mandelaville, a community of some 6000 informal settlers in Johannesburg, during early 2002. The analysis emphasises the adverse impact of the relocation on access to livelihoods and social services in the relocated community. It is argued that the forced relocation could have been prevented, or its impact ameliorated, had the judge ordering the eviction exercised his discretion in a manner which took more seriously the needs and vulnerabilities of South Africa's urban poor. Enormous power is assigned to judges in adjudicating applications for the eviction of large numbers of very poor people. That power needs to be exercised with a deep sensitivity to the particular needs of South Africa's poor.

Moral luck : exploiting South Africa's policy environment to produce a sustainable national antiretroviral treatment programme

Abstract: What kinds of social policy interventions will enable South Africa to offer a universal, free and sustainable antretroviral treatment programme? Some commentators assert that government's best chance at offering such a programme will require the use of ligcompulsoryl/ig licenses and that the state's failure to make use of such a weapon is a failure to discharge its constitutional duties. The authors demur. The threat of a compulsory license is only as good as the ability to make use of such a license. South Africa currently lacks the basic science community, reverse engineering capacity and fine chemicals industry necessary to make good on such a threat. The government's best hope for discharging the duties imposed by the Constitution is a systematic, structural intervention: the implementation of a socio-industrial policy that leverages existing industrial capacity and ligvoluntaryl/ig licenses in a manner that generates price reductions and offers an uninterrupted sustainable local supply. However, voluntary licenses will only create downward pressure on prices when South Africa is able to establish a robust generics pharmaceutical industry. Such an industry can be created with appropriate tax relief, investment credits, technology transfer and assured access to active pharmaceutical ingredients. South Africa's industrial, legal and financial resources can thereby be profitably exploited in a manner that progressively achieves a comprehensive and coordinated antiretroviral treatment programme.

The long march to binding obligations of transnational corporations in International Human Rights Law

Abstract: States are no longer the sole source of human rights violations. In the context of increasing economic globalisation, non-state actors - particularly transnational corporations (TNCs) - have assumed enormous powers which were once considered to fall within the exclusive preserve of the state. As a result, it has become increasingly difficult for states to regulate and control these actors to ensure that they do not commit human rights violations or that they are held accountable for those violations. The UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights (UN Norms) adopted in 2003 by the UN Sub-Commission for the Protection and Promotion of Human Rights are the most significant step the international community has taken towards developing binding human rights standards for TNCs. Development of the UN Norms was motivated by the need to fill the vacuum created by lapses in the operation of the doctrine of state responsibility and gaps in the implementation of voluntary corporate guidelines or codes. Relying on the experience of earlier efforts to develop human rights standards for corporations and their effectiveness, this article argues that the idea of human rights would risk losing its vitality if the UN Norms were to be adopted by the UN General Assembly as a voluntary mechanism and without meaningful enforcement mechanisms.

Judicial independence and the Constitution Fourteenth Amendment Bill

Abstract: (2006). Judicial Independence and the Constitution Fourteenth Amendment Bill. South African Journal on Human Rights: Vol. 22, No. 1, pp. 126-143.

Procedural fairness and reasonable administrative action within the social assistance system: implications of some settled class actions

Abstract: This article discusses five High Court class actions brought under the Social Assistance Act 59 of 1992, dealing with the rights to procedurally fair and reasonable administrative action under the Promotion of Administrative Justice Act 3 of 2000. The cases have contributed significantly to the shaping of the policies and practices of the administration of social assistance. However, because in each case the state consented to the terms of each court order, these orders have not been reported and are not widely known. The cases deal with the following issues: the right to appeal against the conditional award of a grant; the lapsing of a grant without a hearing where the basis for the lapsing is disputed; the right to a prior investigation before administrative action is taken; unreasonable application requirements; the need for policy guidelines when exercising a discretion affecting fundamental rights and the reasonable content of the right of access to social assistance for people in desperate need. A number of themes emerge from the cases: shortcomings in procedural fairness in the regulations under the Social Assistance Act; the absence of measures to minimise the disruption of benefits where internal remedies arising from the unlawful stoppages of grants are pending; the duty arising from errors in the population register; the state's failure to implement these other court orders; the need to integrate court orders into the state's internal management.

The Separation of Powers in the South African Constitution

Abstract: (2006). The Separation of Powers in the South African Constitution. South African Journal on Human Rights: Vol. 22, No. 1, pp. 2-9.

South African nationals abroad and their right to diplomatic protection: lessons from the 'mercenaries case'

Abstract: The South African Constitutional Court's judgment in the 'mercenaries case' ( Kaunda v President of the Republic of South Africa ) is critically considered, particularly its conclusion in respect of the so-called right to diplomatic protection. The majority decision does little more than underline that a South African citizen is entitled to write a letter or in some other manner ask his or her government for assistance. To the extent that this 'right' has any meaning, it appears to lie in the correlative obligation placed on the state once it has received its national's request. However, the obligation imposed on the state is - by the Court's low-level rationality test - watered down to the point of being virtually meaningless in the context of diplomatic protection claims. The Court's approach shows undue deference to the executive in the realm of foreign relations and means that judges will have little reason to look critically and astutely at decisions to refuse diplomatic protection. There is more to support in the minority judgment delivered in the case which suggests (albeit not as strongly as it could) that there may be a duty on the government to do what it reasonably can within the confines of international law to protect the rights of nationals as they are guaranteed in the Constitution of the Republic of South Africa, 1996, even when such nationals are abroad.

Judicial review in a time of terrorism - business as usual : symposium : 'a delicate balance' : the place of the judiciary in a constitutional democracy

Abstract: (2006). Judicial Review in a Time Of Terrorism – Business as Usual. South African Journal on Human Rights: Vol. 22, No. 1, pp. 21-46.

The Promise of equality courts

Abstract: The right to equality in s 9 of the Constitution of the Republic of South Africa, 1996 has become one of the cornerstones of South African constitutional jurisprudence. For this reason, the Equalit...

The NEPAD and human rights : current developments

Abstract: The adoption of the African Charter on Human and Peoples’ Rights (African Charter) in June 1981 by the Assembly of Heads of State and Government of the Organisation of African Unity was a major step forward in the advancement of human rights in Africa. The African Charter consolidated in a single text a plethora of rights and freedoms for individuals and peoples. Further, the African Charter provided for obligations of the African individual, peoples and States. Despite the adoption of the African Charter, which among other things provided for the right of all peoples to economic, social and cultural development, the continent remained underdeveloped. This meant that there was an urgent need for economic cooperation and integration among African States as a means of fostering development in Africa and ensuring the realisation of the right to development to all peoples in Africa. A new undertaking was made by the African leaders under the auspices of the African Union (AU) for the continent’s development in the form of a pledge, otherwise known as The New Partnership for Africa’s Development (NEPAD). The NEPAD is a major step in the right direction in so far as the promotion of development in Africa is concerned. The NEPAD has been variously described as an initiative, a vision, a programme, a policy, a plan, a process, an organisation; none of these is incorrect. The NEPAD is defined in the first paragraph of the NEPAD document as

Judicial rights talk : defects in the liberal challenge to constitutional review

Abstract: A treatment of recent criticism of judicial review concentrating on its theoretical consistency, scope and the use it makes of factual premises regarding the composition of judicial argument and the practice of democratic assemblies. Focussing on the work of Jeremy Waldron and Mark Tushnet and to a lesser extent that of Thomas Poole, it concludes that there are serious difficulties with the liberal challenge on each front.

How to tell a take-off from a rip-off : trade mark parody and freedom of expression in South Africa : notes and comments

Abstract: (2006). How to tell a Take-off from a Rip-off:1 Trade Mark Parody and Freedom of Expression in South Africa. South African Journal on Human Rights: Vol. 22, No. 1, pp. 119-125.

The separation of powers : an American perspective : symposium : 'a delicate balance' : the place of the judiciary in a constitutional democracy

Abstract: (2006). The Separation of Powers: An American Perspective. South African Journal on Human Rights: Vol. 22, No. 1, pp. 10-20.

The sins of the media : the SABC decision and the erosion of free press rights

Abstract: In South African Broadcasting Corporation Ltd v National Director of Public Prosecutions, the Constitutional Court of South Africa dismissed an appeal against a decision of the Supreme Court of Appeal (SCA) denying the national public broadcaster the opportunity to record and broadcast proceedings of a five-day criminal appeal. The majority of the Court held that the SCA's exercise of discretion (including the formulation of a legal test) could only be interfered with if it was a 'demonstrable blunder.' Not only did the majority fail to appreciate that, for sound constitutional reasons, no deference ought to be due to the SCA's decision, it granted more than the usual deference by making use of a novel 'demonstrable blunder' standard. Though some of the possible reasons underlying the majority's use of this new form of appellate review (including a fear that full media access might trivialise the court processes) may have been understandable, such reasons were either legally irrelevant or untenable. The SABC decision is part of a trend whereby the courts and the legislature, often dismayed by incidents of apparent unprofessional conduct by the media, have progressively eroded the constitutional right to a free press. This disquieting trend is based on a misunderstanding of the role of a free press in a constitutional democracy and could ultimately serve to exacerbate any lack of adequate press coverage of the government and the judiciary. Nevertheless, a proper understanding of the 'open justice principle,' recognised by the Constitutional Court in SABC as a constitutional imperative, represents a potential solution to the observed diminution of free press rights.

Reconciling regulation or confronting inconsistency? Conflict between national and provincial legislation

Abstract: What is an appropriate test for determining whether there is conflict between provincial and national legislation in the areas listed in Schedule 4 of the Constitution of the Republic of South Africa, 1996? Although the direct conflict test seems to resonate with s 150 of the Constitution in that it minimises legislative conflict, it is crudely onedimensional in its attitude to legislation and it conduces to unconsidered overregulation. Pre-emption, which counters some of these problems in other legal systems, is ill-suited to the South African constitutional design. There is another way. Legal interpreters should see legislative silence as deliberate in appropriate circumstances which includes being open to finding conflict when 'limits are shifted'. This approach coheres with the Constitution's design for legislative conflict which has s 146 of the Constitution at its centre. It also protects regulatory space and prevents random overregulation. The courts have a dual role in relation to conflict. They need to continue to support and be respectful of the provinces. On the other hand national unity and indivisibility of the Republic need to be unequivocally protected. As part of the principle of co-operative governance, courts have residual power to invalidate protectionist provincial legislation in the absence of conflicting national legislation.