scholarly journals Sideswipes and Backhanders: Abolition of the Reasonable Chastisement Defence in South Africa

2020 ◽  
Vol 34 (2) ◽  
pp. 191-203
Author(s):  
Julia Sloth-Nielsen
Keyword(s):  
South Africa ◽  
South African ◽  
Corporal Punishment ◽  
Cultural Beliefs ◽  
Freedom Of Religion ◽  
Constitutional Court ◽  
Correct Decision ◽  
The South ◽  
Constitutional Development ◽  
History Of

Abstract This article reviews the abolition of the defence of reasonable chastisement by the South African Constitutional Court on the grounds that it infringes the Constitution. After detailing the history of the abolition of corporal punishment in a democracy with the Constitution as supreme law, the article dissects the reasoning of the Constitutional Court. It argues that judgment in Freedom of Religion South Africa v Minister of Justice and Constitutional Development (hereafter FORSA), whilst overall positive in its result, is probably a low water mark in the development of children’s rights jurisprudence in South Africa. There are a number of inadequacies and strangely deferential statements in the FORSA decision. Whilst inescapably coming to the constitutionally correct decision, the reluctance of the Court to reach this point, and its desire to accommodate the religious and cultural beliefs of the appellants, is evident. The way forward has, as a result, been left rather obscure.

Evolution of South Africa's Racist Constitutions and the 1983 Constitution

1987 ◽  
Vol 16 (1) ◽  
pp. 18-23
Author(s):  
Xia Jisheng
Keyword(s):  
South Africa ◽  
South African ◽  
State Law ◽  
The South ◽  
Constitutional Development ◽  
The Third ◽  
Fundamental State ◽  
History Of ◽  
South African Constitution

Since the enforcement of 1983 constitution, several years have passed. The 1983 constitution is the third constitution since the founding of the Union of South Africa in 1910. By observing the history of the constitutional development in more than seventy years in South Africa and the content of the current South African constitution, it is not difficult to find out that the constitution, as a fundamental state law, is an important weapon of racism. South Africa's white regime consistandy upholds and consolidates its racist rule by adopting and implementing constitutions. The aim of this article is to analyze and expose the essence of the South African racist system in mis aspect.

"The Struggle Made Me a Nonracialist": Why There was so Little Terrorism in the Antiapartheid Struggle

2007 ◽  
Vol 12 (2) ◽  
pp. 193-203 ◽  
Author(s):  
Jeff Goodwin
Keyword(s):  
South Africa ◽  
South African ◽  
Communist Party ◽  
African National Congress ◽  
Political Organization ◽  
The South ◽  
Social Basis ◽  
White Allies ◽  
History Of ◽  
National Congress

Most theories of terrorism would lead one to have expected high levels of antiwhite terrorism in apartheid South Africa. Yet the African National Congress, the country's most important and influential antiapartheid political organization, never sanctioned terrorism against the dominant white minority. I argue that the ANC eschewed terrorism because of its commitment to "nonracial internationalism." From the ANC's perspective, to have carried out a campaign of indiscriminate or "categorical" terrorism against whites would have alienated actual and potential white allies both inside and outside the country. The ANC's ideological commitment to nonracialism had a specific social basis: It grew out of a long history of collaboration between the ANC and white leftists inside and outside the country, especially those in the South African Communist Party.

Equality and Non-Discrimination in the South African Constitution

2000 ◽  
Vol 4 (1) ◽  
pp. 47-71
Author(s):  
Joan Small ◽  
Evadne Grant
Keyword(s):  
South Africa ◽  
South African ◽  
Human Dignity ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Legal Effect ◽  
The Law ◽  
South African Constitution

Equality occupies the first place in most written constitutions, but in South Africa, its importance is magnified both in terms of the text of the Constitution and in terms of the context in which that Constitution operates. The Bill of Rights is expected, in South Africa, to help bring about the transformation of the society. These expectations of transformation through the operation of the Bill of Rights are informing the development of the law in relation to equality and non-discrimination by the Constitutional Court. The concept of discrimination is uniquely defined in the South African Bill of Rights. The Courts are struggling to give legal effect to the terminology. The test developed by the Court to interpret the equality clause, it is submitted, is comprehensive and informed. But the application of the test is sometimes problematic. This paper addresses the evolving concepts of equality and discrimination in South Africa and discusses some of the difficulties with certain aspects of the test for discrimination, including the concepts of unfairness and human dignity, which have caused division among the judiciary.

Intermediaries for Child Witnesses: Old Problems, New Solutions and Judicial Differences in South Africa

2011 ◽  
Vol 19 (2) ◽  
pp. 251-269 ◽  
Author(s):  
F. Noel Zaal ◽  
Carmel R. Matthias
Keyword(s):  
South Africa ◽  
South African ◽  
International Standards ◽  
Child Witnesses ◽  
Constitutional Court ◽  
The South ◽  
Criminal Proceedings ◽  
High Court ◽  
African Experience ◽  
Implementation Problems

AbstractSouth Africa has utilised intermediaries to protect child witnesses and assist their communication in criminal proceedings in the magistrates' courts since 1993. is article examines some lessons to be learned from the South African experience. It provides an overview and assessment of attempts to overcome implementation problems and develop the legislation providing for intermediaries. It reviews contradictory solutions for improvement of the law recently put forward by the high court and constitutional court. Applying both the South African history and international standards, we argue that the high court offered a better way forward. We suggest some additional reforms which may also be relevant for advocates of the intermediary system in other jurisdictions.

The Human Right to Water in South Africa and the Mazibuko Decisions

2011 ◽  
Vol 51 (3-4) ◽  
pp. 521-540 ◽  
Author(s):  
Tracy Humby ◽  
Maryse Grandbois
Keyword(s):  
South Africa ◽  
South African ◽  
Constitutional Court ◽  
The South ◽  
Human Right ◽  
Lower Courts ◽  
Access To Water ◽  
South African Constitution ◽  
The Right ◽  
Right Of Access

The right of access to sufficient water in the South African Constitution has for long been regarded as progressive in a global context where the human right to water is still a subject of contention. In its recent decision handed down in the Mazibuko matter, the South African Constitutional Court interpreted the right of access to sufficient water for the first time and clarified the nature of the State’s obligations which flow from this right. It also commented upon the role of the courts in adjudicating the human right to water. This article describes the passage of the Mazibuko matter and the manner in which the lower courts interpreted the right of access to “sufficient water” as well as outlining the Constitutional Court’s decision in the context of access to water services provision in South Africa.

scholarly journals The South African constitutional Court and the Rule of Law: The Masethla Judgment, A Cause for Concern

2017 ◽  
Vol 13 (3) ◽  
pp. 467
Author(s):  
Rósaan Krüger
Keyword(s):  
South Africa ◽  
South African ◽  
Rule Of Law ◽  
Procedural Fairness ◽  
Constitutional Court ◽  
The South ◽  
Public Power ◽  
The Rule Of Law ◽  
The Republic

The rule of law as a foundational constitutional value constrains the exercise of public power but the precise limits of the constraints it sets are not well defined. In Masethla v President of the Republic of South Africa,[1] the majority of the Constitutional Court opted for an interpretation of this value that frees the President from adherence to the demands of procedural fairness when exercising certain constitutional powers. This note will investigate the soundness of that interpretation against the background of theoretical expositions of the rule of law and earlier Constitutional Court judgments.[1]      2008 1 BCLR 1 (CC).

Beyond Memory

2009 ◽  
Author(s):  
Max Mojapelo ◽  
Sello Galane
Keyword(s):  
South Africa ◽  
Popular Music ◽  
South African ◽  
Future Generations ◽  
Black Communities ◽  
African Music ◽  
The South ◽  
Accurate Picture ◽  
History Of ◽  
South African Music

South Africa possesses one of the richest popular music traditions in the world - from marabi to mbaqanga, from boeremusiek to bubblegum, from kwela to kwaito. Yet the risk that future generations of South Africans will not know their musical roots is very real. Of all the recordings made here since the 1930s, thousands have been lost for ever, for the powers-that-be never deemed them worthy of preservation. And if one peruses the books that exist on South African popular music, one still finds that their authors have on occasion jumped to conclusions that were not as foregone as they had assumed. Yet the fault lies not with them, rather in the fact that there has been precious little documentation in South Africa of who played what, or who recorded what, with whom, and when. This is true of all music-making in this country, though it is most striking in the musics of the black communities. Beyond Memory: Recording the History, Moments and Memories of South African Music is an invaluable publication because it offers a first-hand account of the South African music scene of the past decades from the pen of a man, Max Thamagana Mojapelo, who was situated in the very thick of things, thanks to his job as a deejay at the South African Broadcasting Corporation. This book - astonishing for the breadth of its coverage - is based on his diaries, on interviews he conducted and on numerous other sources, and we find in it not only the well-known names of recent South African music but a countless host of others whose contribution must be recorded if we and future generations are to gain an accurate picture of South African music history of the late 20th and early 21st centuries.

South Africa, philosophy in

2018 ◽  
Author(s):  
Pieter Duvenage
Keyword(s):  
South Africa ◽  
South African ◽  
Cape Town ◽  
Philosophical Tradition ◽  
African Philosophy ◽  
The South ◽  
Analytical Philosophy ◽  
History Of ◽  
Anglo American ◽  
British Idealism

Although it is incorrect to refer to an independent South African philosophical tradition, South Africa is nevertheless the location of an interesting history of philosophical institutionalization. This institutionalization is closely intertwined with the colonial and postcolonial history of Western expansion (Dutch and English) and the reactions it unleashed within the South African context. It is especially interesting to trace the influence and the application of Anglo-American and continental origins in South Africa. Even in contemporary South Africa, philosophers who are working in fields such as postmodernism, postcolonialism, feminism and analytical philosophy do so mostly under the influence of contexts beyond South Africa’s borders. After the early Dutch influence in South Africa (1652–1806) a British colonial educational system emerged during the nineteenth century. From the first institutions of higher education (the South African College in Cape Town, and the University of the Cape of Good Hope) the first tertiary institutions emerged in the early part of the twentieth century at Cape Town, Stellenbosch, Witwatersrand (Johannesburg) and Pretoria. Although other universities were subsequently instituted, these four can be considered the four founding residential universities in South Africa. It is also at these universities (and at Colleges in Grahamstown, Bloemfontein, Durban and Pietermaritzburg) that British idealism had a major influence on the early stages of South African philosophy (1873–1940). Against this background figures such as Fremantle (Cape Town), Walker (Stellenbosch), Hoernlé (Johannesburg), Lord (Grahamstown) and Macfadyen (Pretoria) were instrumental. From the 1930s the hegemony of British idealism was challenged by analytical philosophy (mainly at English-speaking South African universities) and continental traditions (mainly at Afrikaans-speaking universities). Since the political transformation of South Africa (1994) African philosophy has also emerged as a major philosophical tradition. The challenge for philosophy in contemporary South Africa is to explore those intellectual traditions that have shaped philosophy in South Africa, to know where they are coming from and to understand how they were transformed under (post)colonial conditions. Such a (genealogical) perspective provides a historical and material corrective to arguments that might otherwise strive to reconcile cultural values and ideas in an apolitical and ahistorical manner.

Liberty of Entering in International Agreements and Compliance of International Obligations

2021 ◽  
Vol 18 (1) ◽  
pp. 105-127
Author(s):  
Elisa Tino
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
International Agreements ◽  
Constitutional Court ◽  
The South ◽  
Member States ◽  
High Court ◽  
International Obligations

Abstract In August 2019 South Africa withdrew its signature from the Protocol on sadc Tribunal signed in 2014 by 9 sadc Member States. This decision was adopted in compliance with the judgment of the South African High Court as confirmed by the Constitutional Court which ruled that the participation of the President in the decision to suspend the sadc Tribunal, as well as his signature of the 2014 Protocol were unconstitutional, unlawful and irrational. These rulings are particularly ground-breaking in light of the conclusions they reached and raised some interesting implications under international law.

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