Art and Human Rights in the Constitutional Court of South Africa

2018 ◽  
pp. 203-210
Author(s):  
Albie Sachs
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Constitutional Court

The implications of the decision in Helen Suzman Foundation v Judicial Service Commission 2018 (7) BCLR 763 (CC) 8 on the functioning of the South African Judicial Service Commission

2020 ◽  
Vol 24 ◽  
Author(s):  
Nomthandazo Ntlama
Keyword(s):  
South Africa ◽  
Decision Making ◽  
Human Rights ◽  
South African ◽  
Rule Of Law ◽  
Decision Making Process ◽  
Constitutional Court ◽  
Service Commission ◽  
Insight Into ◽  
Future Management

ABSTRACT The article examines the implications of the judgment of the Constitutional Court in Helen Suzman Foundation v Judicial Service Commission 2018 (7) BCLR 763 (CC) 8 on the functioning of the Judicial Service Commission (JSC). The judgment has brought to the fore a new lease of life relating to the JSC's post-interview deliberations as a disclosable record in terms of Rule 53(1)(b) of the Uniform Rules of Court. The disclosure seeks to provide an insight into the decision-making process of the JSC in the appointment of judicial officers in South Africa. It is argued that the judgment is two-pronged: first, the disclosure of the post-interview record enhances the culture of justification for decisions taken, which advances the foundational values of the new democratic dispensation; secondly, it creates uncertainty about the future management and protection of the JSC processes in the undertaking of robust debates on the post-interview deliberations. It then questions whether the JSC members will be privileged in their engagement with the suitability of the candidates to be recommended for appointment by the President. The question is raised against the uncertainty about which decision of the JSC will be challenged that will need the disclosure of the record because the judgment does not entail the national disclosure of the record in respect of each candidate but applies only when there is an application for review of the JSC decision. Key words: Judicial Service Commission, appointments, discretion, judiciary, independence, rule of law, discretion, accountability, transparency, human rights.

The 1st ‘Advanced Academy on International Studies in Human Rights and Humanitarian Law’ on Robben Island, Cape Town (S.A.)

2002 ◽  
Vol 3 (6) ◽  
Author(s):  
Florian Hoffmann
Keyword(s):  
South Africa ◽  
Human Rights ◽  
New South ◽  
Vice President ◽  
Constitutional Court ◽  
International Studies ◽  
Western Cape ◽  
Humanitarian Law ◽  
To Come ◽  
Robben Island

“ROBBEN ISLAND IS A VERY SPECIAL PLACE in the new South Africa. No one in South Africa [and few elsewhere] refuses an invitation to come here“; with these words Justice Pius Langa, Vice-President of the South African Constitutional Court, aptly alluded to the symbolic significance of the place chosen as the venue for this first International Human Rights Academy. Indeed, it turned out to be quite an ingenuine idea on part of the Academy's organisers -namely Prof. Jeremy Sarkin from the University of Western Cape (UWC), Prof. Leo Zwaak from Utrecht University, and Prof. Johan Vande Lannotte from Ghent University, as well as Prof. Asbjorn Eide from the Norwegian Institute of Human Rights- to bring, for the first time ever, thirty-five participants from twenty-two countries to the place where Nelson Mandela served eighteen of his 27-years in prison and about which one of his fellow inmates, Ahmed Kathrada, who is now the Chairperson of the Robben Island Council, said that “we [the ex-prisoners] would want Robben Island to reflect the triumph of freedom and human dignity over oppression and humiliation, of courage and determination over weakness, of a new South Africa over the old”. As such, it was, perhaps, the ideal place to devote a good two-and-a-half-weeks (from April 3 to 20) to human rights in all their shades and colours.

Justice & Memory: South Africa's Constitutional Court

Daedalus ◽  
2014 ◽  
Vol 143 (3) ◽  
pp. 168-178 ◽  
Author(s):  
Kate O'Regan
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Cultural Practice ◽  
New Order ◽  
Constitutional Court ◽  
History And Memory ◽  
The Past ◽  
Law And Justice ◽  
The Relationship

In a society such as South Africa in which the past has been deeply unjust, and in which the law and judges have been central to that injustice, establishing a shared conception of justice is particularly hard. There are four important strands of history and memory that affect the conception of justice in democratic, post-apartheid South Africa. Two of these, the role of law in the implementation of apartheid, and the grant of amnesty to perpetrators of gross human rights violations, are strands of memory that tend to undermine the establishment of a shared expectation of justice through law. Two others, the deeprooted cultural practice of justice in traditional southern African communities, and the use of law in the struggle against apartheid, support an expectation of justice in our new order. Lawyers and judges striving to establish a just new order must be mindful of these strands of memory that speak to the relationship between law and justice.

scholarly journals Editorial

2015 ◽  
Vol 18 (1) ◽  
pp. 0-0
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Native Americans ◽  
South African ◽  
Basic Education ◽  
Mentally Ill Offenders ◽  
Specific Reference ◽  
Constitutional Court ◽  
Persons With Disabilities ◽  
Kwazulu Natal

The first edition of 2015 boasts 13 contributions dealing with a variety of topics. The first article, by Ben Coetzee Bester and Anne Louw, discusses the persistence of the "choice argument", which is based on the rationale that domestic partners who choose not to marry cannot claim spousal benefits, and arrives at the conclusion that legislation should differentiate between registered and unregistered domestic partnerships for the purpose of spousal benefits. Ernst Marais has written two articles on expropriation. In the first he examines the meaning and role of state acquisition in South African law and in the second he deals with the distinction between deprivation and expropriation in the light of Agri South Africa v Minister for Minerals and Energy 2013 4 SA 1 (CC), where the Constitutional Court recently revisited the distinction between the two concepts and held that the distinguishing feature of expropriation is that it entails state acquisition of property, whilst deprivation takes place where there is no such acquisition. The fourth article, by Emeka Amechi, explores the measures taken by the National Recordal System and Disclosure of Origins in leveraging traditional knowledge within the structure, content and conceptual framework of the patent system in South Africa. The South African Companies Act and the realization of corporate human rights responsibilities is the focus of Manson Gwanyanya's article. He comes to the conclusion that the wording of the Act is such that it prevent human rights abuses by companies. In her contribution Melanie Murcott discusses the development of the doctrine of legitimate expectations in South African law and the failure of the Constitutional Court to develop the doctrine even further in the recent case of Kwazulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu Natal. The second last article, which is by Lucyline Murungi, considers the implementation of the UN Convention on the Rights of Persons with Disabilities (2006) to provide for inclusive basic education in South Africa, and the last article, which is by Matome Ratiba, examines the significance of places of worship for Native Americans and demonstrates the valuable lessons South Africa could learn from the earth jurisprudence that has developed in the USA and elsewhere. The first note, authored by Magdaleen Swanepoel, discusses legal issues with regard to mentally ill offenders with specific reference to the cases where mental illness is raised as a defence in criminal cases. The second note, by Michelle Fuchs, deals with recent legal developments relating to the formalities involved when a mortgagee wants to declare immovable property executable to satisfy outstanding debt. The last contribution in this edition is a case note by Elmarie Fourie. She considers the question of what constitutes a benefit in terms of section 186(2) of the Labour Relations Act 66 of 1995, which was examined in Apollo Tyres South Africa (Pty)Ltd v CCMA 2013 5 BLLR 434 (LAC).      

HUMAN RIGHTS, CULTURAL DIVERSITY AND CUSTOMARY LAW IN SOUTH AFRICA

2006 ◽  
Vol 50 (1) ◽  
pp. 2-23 ◽  
Author(s):  
EVADNÉ GRANT
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Customary Law ◽  
Constitutional Court ◽  
The South ◽  
The Republic ◽  
Human Rights Norms ◽  
The Right ◽  
Human Rights Standards

In the joined cases of Bhe v. Magistrate Khayelitsha and Others; Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another (2005(1) B.C.L.R. 1 (CC)), the South African Constitutional Court held unanimously that the male primogeniture rule according men rights to inheritance not enjoyed by women enshrined in the South African Customary Law of Succession violated the right to equality guaranteed under section 9 of the South African Constitution. On one level, the decision can be seen as a triumph for the universality of human rights norms. On another level, however, the case raises difficult questions about the relationship between human rights and culture. The aim of this paper is to assess the judgment critically in the context of the ongoing debate about the application of international human rights standards in different cultural settings.

Republic of South Africa v. Grootboom. Case No. CCT 11/00. 2000 (11) BCLR 1169 and Minister of Health v. Treatment Action Campaign. Case No. CCT 8/02

2003 ◽  
Vol 97 (3) ◽  
pp. 669-680 ◽  
Author(s):  
David D. Caron ◽  
Joan Fitzpatrick ◽  
Ron C. Slye
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
State Party ◽  
Cultural Rights ◽  
Human Rights Treaties ◽  
Treatment Action ◽  
Treatment Action Campaign

Republic of South Africa v. Grootboom. Case No. CCT 11/00. 2000 (11) BCLR 1169. Constitutional Court of South Africa, October 4, 2000.Minister of Health v. Treatment Action Campaign. Case No. CCT 8/02. At <http://www.concourt.gov.za>.Constitutional Court of South Africa, July 5, 2002.Two cases decided by the Constitutional Court of South Africa in 2000 and 2002 implement several economic, social, and cultural rights guaranteed by the Constitution of South Africa. The decisions illuminate the role in such reasoning of human rights treaties to which South Africa is a state party or a signatory. They also analyze General Comment No. 3 of die UN Committee on Economic, Social and Cultural Rights (Committee). These cases, Republic of South Africa v. Grootboom, decided October 4,2000, and Minister of Health v. Treatment Action Campaign, decided July 5, 2002, illuminate questions concerning both die jusdciability of economic, social, and cultural rights—at least as incorporated into Soudi Africa's Bill of Rights, sections 7 through 39 of its Constitution—and the concept of “minimum core obligations” as developed by the Committee.

scholarly journals On the record with Judge Jody Kollapen

2019 ◽  
pp. 53-56
Author(s):  
Nontsasa Nako
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Constitutional Court ◽  
Industrial Complex ◽  
The South ◽  
State Repression ◽  
Crime And Punishment ◽  
Democratic State ◽  
The Impact

With the revelations by Bosasa officials at the State Capture Enquiry, held in early 2019, laying bare the corrupt links between prisons, detention centres and border control, and high ranking political and government officials, the time is ripe to excavate the capitalist interests that fuel incarceration in this country. How did the prison industrial complex overtake the lofty principles that ushered in the South African democratic era? Judge Jody Kollapen is well-placed to speak to about the evolution of the South African prison from a colonial institute that served to criminalise and dominate 'natives', to its utility as instrument of state repression under apartheid, to its present manifestation in the democratic era. He has laboured at the coalface of apartheid crime and punishment through his work as an attorney in the Delmas Treason Trial, and  for the Sharpeville Six, and also worked as a member of Lawyers for Human Rights, where he coordinated the 'Release Political Prisoners' programme, Importantly, Justice Kollapen had a ringside seat at the theatre of our transition from apartheid to democracy as he was part of the selection panel that chose the commissioners for the Truth and Reconciliation Commission (TRC). Many questions can be asked of the South African TRC including whether it was the best mechanism to deal with the past and whether it achieved reconciliation. What concerns us here is its impact on crime and punishment in the democratic era. If our transition was premised on restorative justice, then shouldn’t that be the guiding principle for the emerging democratic state?  In line with this special edition’s focus on the impact of incarceration on the marginalized and vulnerable, Judge Kollapen shares some insights on how the prison has fared in democratic South Africa, and how imprisonment affects communities across the country. As an Acting Judge in the Constitutional Court, a practitioner with a long history of civic engagement, and someone who has thought and written about criminalization, human rights and prisons, Judge Kollapen helps us to think about what decolonization entails for prisons in South Africa.

scholarly journals The Role Played by the South African Human Rights Commission's Economic and Social Rights Reports in Good Governance in South Africa

2017 ◽  
Vol 9 (2) ◽  
pp. 176
Author(s):  
D Horsten
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Good Governance ◽  
Social Rights ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Economic Rights ◽  
The People

The preamble of the Constitution of South Africa, 1996 (the Constitution) contains the commitment to, amongst other things, establish a society based on democratic values, social justice and fundamental human rights, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law and improve the quality of life of all citizens and free the potential of each person.  One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Chapter 2 Bill of Rights. Despite numerous debates surrounding the issue of enforceability of socioeconomic rights, it has become evident that these rights are indeed enforceable.  Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable. The fact that socio-economic rights have been included in the Bill of Rights and are enforceable is, however, not sufficient to achieve the aims set out in the preamble.  In order for these rights to be of any value to the people they seek to protect, they need to be implemented. One of the ways in which the implementation of these rights is monitored is by means of the South African Human Rights Commission's annual Economic and Social Rights Reports.  The aim of this contribution is to assess these reports and to establish the degree to which they contribute to good governance in South Africa with reference to, inter alia, the constitutional mandate of the South African Human Rights Commission, the reporting procedure and the evaluation of reports.

scholarly journals The South African Constitutional Court Decides Against Statelessness and In Favour of Children: Chisuse v Director-General, Department of Home Affairs [2020] ZACC 20

2021 ◽  
Author(s):  
Mihloti Basil Sherinda ◽  
Jonathan Klaaren
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Director General ◽  
Constitutional Court ◽  
Birth Registration ◽  
Constitutional Rights ◽  
Foreign Born ◽  
Government Department ◽  
Interpretive Approach

The 2020 Chisuse case of the Constitutional Court of South Africa comes at a crucial moment in South Africa’s post-apartheid trajectory where the circle of citizenship is ‘shrinking’ The Constitutional Court decided in favour of four of the five foreign-born applicants, all children with one citizen parent, who had sought an order to be registered as citizens by the relevant government department, the Department of Home Affairs (DHA). The applicants argued that the DHA’s interpretation of the amended citizenship law violated their constitutional rights. Not deciding the matter on a constitutional basis, the Constitutional Court creatively and authoritatively interpreted the statutory regime in favour of the applicants. An example of the Court’s important national role in upholding a human rights-based vision of South African citizenship against persistent and potentially growing bureaucratic opposition, Chisuse also displays an interpretive approach both mindful of the risks of child statelessness and supportive of the place of civil birth registration in the global provision of legal identity for all.

When Politics Prevail Over the Rule of Law: The Demise of the sadc Tribunal

2021 ◽  
Vol 10 (1) ◽  
pp. 124-154
Author(s):  
Konstantinos D Magliveras ◽  
Gino J Naldi
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Rule Of Law ◽  
Southern Africa ◽  
Land Reform ◽  
Constitutional Court ◽  
High Court ◽  
The Rule Of Law ◽  
Reform Programme ◽  
Southern Africa Development Community

Abstract The article questions whether the Tribunal of the Southern Africa Development Community (sadc) ought to have entertained human rights cases given that the sadc Treaty does not endow it with such jurisdiction. It then analyses its demise in 2010, which was prompted by several rulings against Zimbabwe, whose policy of expropriating land without compensation was held to violate human rights. The pertinent aspects of these cases are reviewed, and the significance of Zimbabwe’s land reform programme is explained. The article elucidates why sadc leaders were prepared to suspend the Tribunal’s operation. This was a combination of alarm that it could evolve into a quasi-regional human rights court but also solidarity with the then President Mugabe, a hero of Africa’s liberation struggle. Finally, the pronouncements of the Constitutional Court of South Africa and the High Court of Tanzania on the lawfulness of the sadc Tribunal’s suspension are considered.

Sign in / Sign up

Export Citation Format

Share Document