The Republic of South Africa

2021 ◽  
pp. 337-362
Author(s):  
Steven Gow Calabresi
Keyword(s):  
South Africa ◽  
South African ◽  
Judicial Review ◽  
African National Congress ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
South Africans ◽  
Nelson Mandela ◽  
Basic Law ◽  
The Republic

This chapter explores the origins and growth of judicial review in South Africa. Judicial review originated in South Africa in 1994 for rights from wrongs reasons. The great moral wrongs of racist Afrikaner and British imperial rule could only be overcome with a new Democratic Constitution, accepted by blacks and whites, with a very generous Bill of Rights that is enforced by a very powerful Constitutional Court. The African National Congress (ANC) party, led by Nelson Mandela, had called for a Bill of Rights and judicial review ever since the 1950s. In the 1990’s, the ANC got its wish. South African judicial review also result, in part, from borrowing. South Africans borrowed heavily from the Canadian Charter of Rights and Freedoms of 1982 and from the German Basic Law of 1949. South Africa particularly borrowed from Germany the idea of creating one very powerful Constitutional Court, which alone has the power of judicial review in South Africa.

Michael Harmel (1915-1974): A South African Communist and His Discourse

2021 ◽  
Author(s):  
◽  
Milan Oralek
Keyword(s):  
South Africa ◽  
South African ◽  
Political Identity ◽  
African National Congress ◽  
Core Beliefs ◽  
Literary Interpretation ◽  
Nelson Mandela ◽  
Private Correspondence ◽  
National Congress ◽  
Actual Contribution

<p>This thesis explores the life and work of a South African journalist, editor, and activist Michael Alan Harmel (1915–1974), a political mentor and friend of Nelson Mandela. A resolute believer in racial equality and Marxism-Leninism, Harmel devoted his life to fighting, with “the pen” as well as “the sword”, segregation and apartheid, and promoting an alliance of communists with the African National Congress as a stepping stone to socialism in South Africa. Part 1, after tracing his Jewish-Lithuanian and Irish family roots, follows Harmel from his birth to 1940 when, having joined the Communist Party of South Africa, he got married and was elected secretary of the District Committee in Johannesburg. The focus is on factors germane to the formation of his political identity. The narrative section is accompanied by an analytical sketch. This, using tools of close literary interpretation, catalogues Harmel’s core beliefs as they inscribed themselves in his journalism, histories, a sci-fi novel, party memoranda, and private correspondence. The objective is to delineate his ideological outlook, put to the test the assessment of Harmel—undeniably a skilled publicist—as a “creative thinker” and “theorist”, and determine his actual contribution to the liberation discourse.</p>

Michael Harmel (1915-1974): A South African Communist and His Discourse

2021 ◽  
Author(s):  
◽  
Milan Oralek
Keyword(s):  
South Africa ◽  
South African ◽  
Political Identity ◽  
African National Congress ◽  
Core Beliefs ◽  
Literary Interpretation ◽  
Nelson Mandela ◽  
Private Correspondence ◽  
National Congress ◽  
Actual Contribution

<p>This thesis explores the life and work of a South African journalist, editor, and activist Michael Alan Harmel (1915–1974), a political mentor and friend of Nelson Mandela. A resolute believer in racial equality and Marxism-Leninism, Harmel devoted his life to fighting, with “the pen” as well as “the sword”, segregation and apartheid, and promoting an alliance of communists with the African National Congress as a stepping stone to socialism in South Africa. Part 1, after tracing his Jewish-Lithuanian and Irish family roots, follows Harmel from his birth to 1940 when, having joined the Communist Party of South Africa, he got married and was elected secretary of the District Committee in Johannesburg. The focus is on factors germane to the formation of his political identity. The narrative section is accompanied by an analytical sketch. This, using tools of close literary interpretation, catalogues Harmel’s core beliefs as they inscribed themselves in his journalism, histories, a sci-fi novel, party memoranda, and private correspondence. The objective is to delineate his ideological outlook, put to the test the assessment of Harmel—undeniably a skilled publicist—as a “creative thinker” and “theorist”, and determine his actual contribution to the liberation discourse.</p>

scholarly journals The Position of Constitutional Complaint in the Constitutional Court of the Republic of Indonesia

2021 ◽  
Vol 2 (1) ◽  
pp. 61-78
Author(s):  
Agsel Awanisa ◽  
Yusdianto Yusdianto ◽  
Siti Khoiriah
Keyword(s):  
South Africa ◽  
South Korea ◽  
Judicial Review ◽  
Research Method ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Republic ◽  
Case Number

The purpose of this research is to determine the constitutional complaint mechanism based on comparisons in other countries, practices, and adaptation of constitutional complaints under the authority of the Constitutional Court of the Republic of Indonesia. Many cases with constitutional complaint substance have been submitted to the Constitutional Court of the Republic of Indonesia even though they don’t have this authority. This research uses a normative legal research method using a statutory approach, a conceptual approach, a comparative approach, and a case approach. This research indicates that the constitutional complaint mechanism in Germany, South Korea, and South Africa has been well implemented. In practice, cases with constitutional complaint substance are filed to the Constitutional Court of the Republic of Indonesia by changing the form by using the legal means of a judicial review, such as case number 16/PUU-VI/ 2008, case number 140/PUU-XIII/2015 and case number 102/PUU-VII/2009. Due to the consideration of the structure, substance, and culture of law, adaptation of constitutional complaint within the authority of the Constitutional Court of the Republic of Indonesia needs to be carried out by amending Law Number 24 of 2003 jo. Law Number 7 of 2020 concerning the Constitutional Court.

The Reconstruction of Memory at Constitution Hill

2008 ◽  
Vol 30 (1) ◽  
pp. 17-25 ◽  
Author(s):  
CHURCHILL MADIKIDA ◽  
LAUREN SEGAL ◽  
CLIVE VAN DEN BERG
Keyword(s):  
South African ◽  
Political Leader ◽  
Constitutional Court ◽  
African History ◽  
Constitutional Democracy ◽  
South Africans ◽  
The Past ◽  
Nelson Mandela ◽  
Former Prisoners ◽  
The Web

Abstract The Old Fort Prison was Johannesburg's main place of incarceration of prisoners for eight decades, including during the apartheid era. Virtually every important political leader in South African history, including Mahatma Gandhi, Nelson Mandela, Winnie Mandela, and Fatima Meer, as well as scores of ordinary South Africans caught in the web of colonial and apartheid repression, were imprisoned there. Today, this prison complex is home to South Africa's Constitutional Court. Constitution Hill has brought former prisoners to “map” their memories of the site. They also host public dialogues on the injustices of the past, as typified by the prisons at Number Four, as well as people's understanding of their constitutional needs and rights, and their experiences of the country's young constitutional democracy.

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.

scholarly journals “The RDP of the Soul”, geweld, vergelding, toleransie en Paulus se appèl om moed te hou

2008 ◽  
Vol 29 (3) ◽  
pp. 708-727
Author(s):  
A G Van Aarde
Keyword(s):  
South Africa ◽  
Moral Leadership ◽  
South Africans ◽  
Nelson Mandela ◽  
King's College ◽  
The Republic ◽  
The University ◽  
Peace And Reconciliation ◽  
Thabo Mbeki ◽  
Public Lecture

“The RDP of the Soul”, violence, revenge, tolerance and Paul’s appeal for enduranceThis article links up with both the Fourth Nelson Mandela Commemorative Lecture presented by the previous President of the Republic of South Africa, Thabo Mbeki, in 2006, titled the “RDP of the Soul” and with the book of Dr Richard Burridge (King’s College, University of London), Imitating Jesus, in which he shows how biblical ethics has shaped South Africans’ lives since colonialism, apartheid and post- and neo-colonialism. The article argues that moral leadership by the Christian faith community in South Africa which combats violence by rising up in compassion against injustice can counter-balance the spiralling out of retaliation through revenge. The article describes tolerance in terms of the Pauline concept of endurance and the internalisation of hope for the future. Perseverance despite suffering is seen as the contents of tolerance in the midst of aggressive opposition against the essence of life experienced in terms of an individual’s thinking, willing and feeling. The article is a reworked version of a bilingual commemorative public lecture in English and Afrikaans presented on the occasion of the University of Pretoria’s centenary celebration and is dedicated to Professor Dr P J G Meiring, a member of the Commission of Peace and Reconciliation 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).

South African State Capture: A Symbiotic Affair between Business and State Going Bad(?)

2017 ◽  
Vol 9 (1) ◽  
pp. 62-75 ◽  
Author(s):  
Kgothatso B. Shai
Keyword(s):  
South Africa ◽  
South African ◽  
African State ◽  
African National Congress ◽  
Undue Influence ◽  
Corporate Influence ◽  
State Capture ◽  
The Republic ◽  
State Relations ◽  
Scholarly Discourse

Since March 2016, the subject of South African state capture has received much attention from the political, business and scholarly community in the country and beyond. The vibrancy of this public and scholarly discourse was reignited by the claims by some politicians from the ruling party, the African National Congress (ANC), that in the recent past, they were approached by the Gupta family (business moguls) for consideration in ministerial appointments. These revelations have since produced a dominant perception that the Gupta family wields an undue influence over the President of the Republic and by extension, the entire state machinery. This extends to the family and friends as well. While the Guptas ‘capture’ the state, ministers and premiers are not directly accountable to them by protocol, but only to the President as a constitutional prerogative to do so. The view on state capture is not uniformly accepted. One notes the discourse is dominated by Euro-American perspectives, purporting to create a misunderstanding of the current trajectory of business–state relations in South Africa. As a theoretical framework, Afrocentricity is adopted and used in this article to answer the following two central questions: (i) Is it a myth or reality that the Gupta family has captured the South African state? (ii) At which point should corporate influence in state affairs be considered as illegal? Methodologically, this is achieved through thematic content analysis on conversations and the prevailing discourses circulating within South Africa.

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.

scholarly journals THE “DEFERENCE” OF JUDICIAL AUTHORITY TO THE STATE*

Obiter ◽  
2021 ◽  
Vol 33 (1) ◽  
Author(s):  
Nomthandazo Ntlama
Keyword(s):  
South Africa ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The State ◽  
Constitutional Court ◽  
Main Function ◽  
Checks And Balances ◽  
New Process ◽  
State Authority ◽  
The Republic

The adoption of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”), provided an opportune moment for the courts, especially the Constitutional Court to ensure an appropriate balance in the development of the principles and values of the doctrine of separation of powers vis-à-vis those of judicial review. The Constitution is framed in a manner that entrenches a system of checks and balances (this is deduced from the manner in which the various chapters of the Constitution are structured, dealing with the roles of the legislature, executive and the judiciary). This system gives the general public a legislative and executive authority that is accountable to them subject to judicial review by an independent judiciary. The system of checks and balances affirms the limited power of the legislative and executive authorities which is confined within the constraints of constitutional values and principles. The importance of checks and balances is similarly endorsed by Edwards as a system that has ushered in a new process of the regulation of state authority in the new dawn of democracy. This system envisages a move away from a culture of authority of the apartheid rule to one of justification of the new constitutional dispensation. He substantiates his argument by pointing out that the new process of regulating state authority has enabled the courts to educate other branches of government through principled and robust articulations of the foundational and constitutional values of the Constitution in a democratic society. Against this background, the purpose of this note is to provide a brief overview of the Merafong Demarcation Forum v President of the Republic of South Africa (2008 (10) BCLR 968, hereinafter “Merafong”) judgment. The particular emphasis on this judgment is its potential to defer the judicialauthority (which the author refer to as a “political doctrine”) to the state. The objective is to analyse this doctrine and evaluate it against the development of substantive principles of judicial review. This purpose is motivated by Chaskalson CJ’s argument in Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa (2000 (3) BCLR 241). Chaskalson CJ in this case held that the Constitutional Court cannot allow itself to be diverted from its main function as the final andindependent arbiter in the contest between the state and its citizens. In Merafong, the court created an impression of having misconstrued this purpose and the objectives it has to fulfil. This note is limited to the “political approach” which the court emphasisedwithout much thought, and attempt to address the question of public involvement in legislative processes raised in this case. It alsoacknowledges that the court has affirmed its independence as the guardian of the Constitution in the regulation of state authority and advancement of the principles of judicial review, but its lack of consistency in its adopted approach is a worrying factor and a causefor concern for the regulation of state authority.

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