Environmental Provisions in a New South African Bill of Rights

1993 ◽  
Vol 37 (2) ◽  
pp. 177-184
Author(s):  
Jan Glazewski
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Environmental Law ◽  
Vital Role ◽  
Bill Of Rights ◽  
Political Role ◽  
Parliamentary Sovereignty ◽  
Draft Bill ◽  
Future Direction

The question of human rights approaches to environmental protection is particularly pertinent in South Africa because its people are currently negotiating a set of constitutional principles which will lay the foundation for a future democratic and representative government in the country. The future direction of South African human rights law and environmental law particularly will be shaped by events in the near future as a new bill of rights is likely to include an environmental clause. The next few months will see the tabling of a set of constitutional principles and a draft bill of rights, the establishment of a transitional executive and elections for a constituent assembly. The latter body will finalize the form and content of a new constitution and bill of rights, drafts of which are currently being negotiated and circulated for comment by the political role players in the negotiating process. In broad constitutional terms, South Africa is departing from the Westminster model of parliamentary sovereignty on which its constitutional structure has been traditionally based and is moving towards the American model of public power being subjected to norms laid down in a bill of rights. The courts exercising their power of review will play a vital role in ensuring the success of the new dispensation. While the new bill of rights will obviously have vertical application, meaning that it will serve as a standard against which future parliamentary statutes will be measured, it is not yet clear whether it will also have horizontal application, whereby alleged contraventions of constitutional norms will be used by private legal persons in disputes between themselves.

Foreigners' Rights to Work and Fair Labour Practices in South Africa: A Review of the South African Labour Legislation and Jurisprudence

2020 ◽  
Vol 35 (1) ◽  
Author(s):  
Andre Mangu
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
Legislation And Jurisprudence ◽  
Foreign Nationals ◽  
Lay Persons ◽  
Democratic State ◽  
Labour Legislation

After several decades of apartheid rule, which denied human rights to the majority of the population on the ground of race and came to be regarded as a crime against humanity, South Africa adopted its first democratic Constitution in the early 1990s. The 1996 Constitution, which succeeded the 1993 interim Constitution, is considered one of the most progressive in the world. In its founding provisions, it states that South Africa is a democratic state founded on human dignity, the achievement of equality, the advancement of human rights and freedoms. The Constitution enshrines fundamental human rights in a justiciable Bill of Rights as a cornerstone of democracy. Unfortunately, in the eyes of a number of politicians, officials and lay-persons, the rights in the Bill of Rights accrue to South African citizens only. Xenophobia, which has been rampant since the end of apartheid, seems to support the idea that foreigners should not enjoy these rights. Foreign nationals have often been accused of posing a threat to South African citizens with regard to employment opportunities. In light of the South African legislation and jurisprudence, this article affirms the position of the South African labour law that foreign nationals are indeed protected by the Constitution and entitled to rights in the Bill of Rights, including the rights to work and fair labour practices.

scholarly journals SOME COMMENTS ON WATER RIGHTS IN SOUTH AFRICA

2017 ◽  
Vol 8 (1) ◽  
pp. 1
Author(s):  
N Gabru
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Fresh Water ◽  
Human Life ◽  
Bill Of Rights ◽  
The South ◽  
Economic Rights ◽  
Basic Part ◽  
The Right

Human life, as with all animal and plant life on the planet, is dependant upon fresh water. Water is not only needed to grow food, generate power and run industries, but it is also needed as a basic part of human life. Human dependency upon water is evident through history, which illustrates that human settlements have been closely linked to the availability and supply of fresh water. Access to the limited water resources in South Africa has been historically dominated by those with access to land and economic power, as a result of which the majority of South Africans have struggled to secure the right to water. Apartheid era legislation governing water did not discriminate directly on the grounds of race, but the racial imbalance in ownership of land resulted in the disproportionate denial to black people of the right to water. Beyond racial categorisations, the rural and poor urban populations were traditionally especially vulnerable in terms of the access to the right.  The enactment of the Constitution of the Republic of South Africa 1996, brought the South African legal system into a new era, by including a bill of fundamental human rights (Bill of Rights). The Bill of Rights makes provision for limited socio-economic rights. Besides making provision for these human rights, the Constitution also makes provision for the establishment of state institutions supporting constitutional democracy.  The Constitution has been in operation since May 1996. At this stage, it is important to take stock and measure the success of the implementation of these socio-economic rights. This assessment is important in more ways than one, especially in the light of the fact that many lawyers argued strongly against 1/2the inclusion of the second and third generation of human rights in a Bill of Rights. The argument was that these rights are not enforceable in a court of law and that they would create unnecessary expectations of food, shelter, health, water and the like; and that a clear distinction should be made between first generation and other rights, as well as the relationship of these rights to one another. It should be noted that there are many lawyers and non-lawyers who maintained that in order to confront poverty, brought about by the legacy of apartheid, the socio-economic rights should be included in a Bill of Rights. The inclusion of section 27 of the 1996 Constitution has granted each South African the right to have access to sufficient food and water and has resulted in the rare opportunity for South Africa to reform its water laws completely. It has resulted in the enactment of the Water Services Act 108 of 1997 and the National Water Act 36 of 1998.In this paper the difference between first and second generation rights will be discussed. The justiciability of socio-economic rights also warrants an explanation before the constitutional implications related to water are briefly examined. Then the right to water in international and comparative law will be discussed, followed by a consideration of the South African approach to water and finally, a few concluding remarks will be made.

scholarly journals Socio-economic rights and women in South Africa: nothing but a handful of feathers?

2011 ◽  
Vol 7 (1) ◽  
Author(s):  
M K Ingle
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Political Science ◽  
South African ◽  
Gender Studies ◽  
The State ◽  
Development Studies ◽  
Bill Of Rights ◽  
Economic Rights ◽  
South African Constitution

The Bill of Rights contained within South Africa’s Constitution features a number of ‘socio- economic rights’. Although these rights are justiciable they are subject to various limitations. They generally entail a positive onus on the part of the state to provide some good – not immediately, but ‘progressively’. Women have a direct interest in the realization of these rights and, where given effect to, they should exert a positive developmental impact. Some authorities are, however, of the opinion that socio-economic rights are not really enforceable. This article contends that the provision of social goods, by the state, should be the concomitant of the disciplined implementation of policy. Delivery should not therefore be contingent upon the legalistic vagaries of the human rights environment.Keywords: Socio-economic rights; justiciability; Bill of Rights; development; South African Constitution; womenDisciplines: Development Studies;Human Rights; Gender Studies; Political Science

scholarly journals Towards A Bill of Rights for a Democratic South Africa

1991 ◽  
Vol 35 (1-2) ◽  
pp. 21-43 ◽  
Author(s):  
Albie Sachs
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
Equal Rights ◽  
World Community ◽  
African People ◽  
Constitutional Level ◽  
The World ◽  
The Individual

All revolutions are impossible until they happen; then they become inevitable. South Africa has for long been trembling between the impossible and the inevitable, and it is in this singularly unstable situation that the question of human rights and the basics of government in post-apartheid society demands attention.No longer is it necessary to spend much time analysing schemes to modernize, reform liberalize, privatize, or even democratize apartheid. Like slavery and colonialism, apartheid is regarded as irremediably bad. There cannot be good apartheid, or degrees of acceptable apartheid. The only questions are how to end the system as rapidly as possible and how to ensure that the new society which replaces it lives up to the ideals of the South African people and the world community. More specifically, at the constitutional level, the issue is no longer whether to have democracy and equal rights, but how fully to achieve these principles and how to ensure that within the overall democratic scheme, the cultural diversity of the country is accommodated and the individual rights of citizens respected.

scholarly journals Neither Adopted nor Borrowed: A Critique of the Conception of the South African Bill of Rights

2020 ◽  
Vol 23 ◽  
pp. 1-26
Author(s):  
Felix Dube
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
International Human Rights ◽  
South Africans ◽  
The People ◽  
Human Rights Movement ◽  
International Human

The failure of the post-apartheid government to deliver on some of the promises of the South African Bill of Rights, coupled with the appropriation of the Bill of Rights by the international human rights movement, create the impression that the Bill of Rights is a neo-liberal instrument which is irrelevant to the needs of South Africans and the realities of their circumstances. If the people of South Africa are convinced that the Bill of Rights embraces a Western agenda more than it expresses their collective aspirations, it will lose its legitimacy. While acknowledging that the conception of the Bill of Rights is contested between the international human rights movement and some South Africans, this article shows that the Bill of Rights was neither adopted nor borrowed from the international human rights movement. South Africans did not assimilate the International Bill of Rights but conceived their own Bill of Rights in the early decades of the 20th Century. The conception of the South African Bill of Rights was a response to colonialism and apartheid and was not a consequence of tutelage by the international human rights movement.

South Africa

2019 ◽  
pp. 314-333
Author(s):  
Jan Glazewski
Keyword(s):  
South Africa ◽  
South African ◽  
Local Governments ◽  
Environmental Governance ◽  
Environmental Law ◽  
Bill Of Rights ◽  
Implementation Framework ◽  
Domestic Law ◽  
National Environmental

This chapter examines the environmental law of South Africa. It first considers how powers are allocated with regards to environmental law, taking into account the constitutional and other bases of South African environmental law, the elevated status of international law in South African domestic law, relevant provisions of the Bill of Rights with respect to environmental rights and sustainable development, and distribution of competences among national, provincial, and local governments regarding environmental governance. The chapter goes on to discuss the structure and substance of South Africa’s environmental law, focusing on the National Environmental Management Act (NEMA) and the environmental principles and sectorial laws it contains. It also analyses the implementation framework for environmental law, describing cooperative governance in practice and the role of relevant governmental departments from integration to sectorialization. Finally, it provides an overview of the legal conundrums created by the so-called One Environmental System (OES).

scholarly journals Getting to grips with the public trust doctrine in biodiversity conservation: A brief overview

Bothalia ◽  
2018 ◽  
Vol 48 (1) ◽  
Author(s):  
Andrew C. Blackmore
Keyword(s):  
South Africa ◽  
South African ◽  
Protected Area ◽  
Environmental Law ◽  
Public Trust ◽  
Bill Of Rights ◽  
The Public ◽  
Public Trust Doctrine ◽  
African Context ◽  
Heritage Legislation

The explicit incorporation of the public trust doctrine into South Africa’s Bill of Rights in South Africa’s Constitution, and its subsequent codification into the country’s environmental biodiversity, protected area, water, minerals and heritage legislation, occurred to a large extent without applause or fanfare. It is apparent that in the 20-odd years since the adoption of South Africa’s Constitution, the existence and importance of the public trust doctrine within the academic and legal fraternities, bureaucratic decision-making and the courts have largely been overlooked. This observation evokes curiosity about the history and evolution of the doctrine and its meaning and relevance in, at least, the conservation of biodiversity in a South African context. It is concluded that the nature of the application of the public trust doctrine in South Africa remains an enigma, and the development and refinement of this jurisprudence are required. The variable and, in places, conflicting wording of the trust-related provisions in a number of South Africa’s environmental statutes suggests that the doctrine and hence the nature of its application was not fully understood by the drafters of the statutes or by the legislature adopting those statutes into law. The public trust doctrine in South African environmental law lies beyond the country’s Constitution, and appears to have multiple bloodlines, which dispels the notion that South Africa hermetically imported the concept from a single source. The interpretation and hence the nature of the application of the doctrine in South Africa is likely to be influenced by the country’s heritage and hence is likely to vary between the disciplines that constitute South Africa’s environmental law.

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 Judicial Law-Making: Unlocking the Creative Powers of Judges in Terms of Section 39(2) of the Constitution

2016 ◽  
Vol 19 ◽  
pp. 1 ◽  
Author(s):  
Annie Singh ◽  
Moreblessing Zaryl Bhero
Keyword(s):  
South Africa ◽  
South African ◽  
Bill Of Rights ◽  
Statutory Interpretation ◽  
Parliamentary Sovereignty ◽  
The Subject ◽  
The Law ◽  
Apartheid Regime ◽  
Law Making

The law-making role of judges has always been the subject of much controversy. For a good many a year and especially during the apartheid regime, the approach to statutory interpretation that dominated the South African courts was the orthodox textual position. According to the textualists, as they were referred to, the position that was adopted was that legislation was to be interpreted within the framework of the words used by the legislature. The courts were not empowered to make any modifications, alterations or additions to the legislative text, as this function was solely the responsibility of the legislature. The paradigmatic shift in emphasis since 1994 from a system of parliamentary sovereignty to constitutional supremacy changed this position significantly. The key consideration of statutory interpretation was that the aim and purpose of legislation was to be considered with the values of the Constitution forming the over-arching principle in the process of interpretation. The courts were enjoined to reconcile the purpose of the legislation with the provisions of the Constitution, and in particular, the Bill of Rights. The emerging view in support of the purposive or the teleological theory has been that judges do indeed have a law-making function in the process of interpretation. Since the early 1990's, it has been observed that the judiciary has been able to assert its influence on the development of the law and the emerging jurisprudence, as a result of the powers derived from the Constitution, and in particular section 39(2). The article examines the extent to which the judiciary can use this power in a post-democratic constitutional era, in South Africa, to achieve justice. From the repository of cases, which forms the basis of the discussion, the article proposes a set of factors that ought to be heeded by our courts in the application of section 39(2).

Asad on the Secular

2013 ◽  
Vol 30 (1) ◽  
pp. 1-21
Author(s):  
Auwais Rafudeen
Keyword(s):  
Human Rights ◽  
South African ◽  
The State ◽  
South African Context ◽  
Bill Of Rights ◽  
The South ◽  
Legal Nature ◽  
African Context

This paper examines a South African debate on legislating Muslim marriages in the light of anthropologist Talal Asad’s critique developed in his Formations of the Secular (2003). It probes aspects of the debate under four Asadian themes: (1) the historicity of the secular, secularism, and secularization; (2) the place of power and the new articulations of discourses it creates; (3) the state as the arm of that power; and (4) the interconnections (or dislocations) among law, ethics, and the organic environment (habitus). I argue that Asad illumines the debate in the following ways: (1) by providing a deeper historical and philosophical appreciation of its terms of reference, given that the proposed legislation will be subject to South Africa’s secular Bill of Rights and constitution; (2) by requiring us to examine and interrogate the genealogies of such particular hegemonic discourses as human rights, which some participants appear to present as ahistorical and privileged; and (3) by showing, through the concept of habitus, why this debate needs to go beyond its present piecemeal legal nature and develop an appreciation of the organic linkages among the Shari‘ah, morality, community, and self. Yet inevitable nuances are produced when applying Asad’s ideas to the South African context.

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