The Resilient Constitution

2021 ◽  
pp. 277-309
Author(s):  
David Dyzenhaus ◽  
Alma Diamond
Keyword(s):  
South Africa ◽  
South African ◽  
Transitional Justice ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Extreme Pressure ◽  
The Face ◽  
Justice Process ◽  
The One

This chapter evaluates the so called 'transitional constitution' of South Africa and the 'permanent constitution' of Colombia. Through a comparative approach, it contends that constitutions are better understood in terms of their resilience rather than either being transitional or permanent, and that a 'resilient constitution' is the one capable of springing back even after being subjected to extreme pressure, as long as leaders maintain their commitment to governing within the limits of the law. In this sense, the differences between the Colombian transitional justice and the South African case do not stem primarily from the 'permanence' of its Constitution, but rather from the difficulties and tensions inherent to any transitional justice process, because it derives from some of the very rights it is designed to promote. The chapter then details how the jurisprudence of the Colombian Constitutional Court on transitional matters can be understood as having moved from an understanding of the Constitution as permanent, to one of resilience that does not represent a new power grabbed by the Court. Rather than that, it signals an understanding of the role of the Court in maintaining a constitutional order even in the face of existential threats to it.

scholarly journals INTRODUCING DECONSTRUCTIVE INTERSECTIONALITY: THE GENERAL JURISPRUDENTIAL RAGE AGAINST RAINBOW THEORY

2015 ◽  
Author(s):  
Tamryn Gorman
Keyword(s):  
South Africa ◽  
South African ◽  
The Other ◽  
Constitutional Court ◽  
Court Cases ◽  
Substantive Equality ◽  
Constant Tension ◽  
Formal Equality ◽  
The One ◽  
Constitutional Adjudication

Despite South Africa’s post-modern constitutional dispensation which, at first glance, seems to celebrate and entrench substantive equality — various judgements have been passed by the Constitutional Court where the Constitution was interpreted through a formal equalitarian lens. On the one hand, substantive equality recognises and celebrates our diversity and differences whereas formal equality, on the other hand, obsesses with the idea of sameness. This constant tension between substantive and formal equality is aptly portrayed by the term ‘rainbow jurisprudence’. This term was coined by Alfred Cockrell to explain a quasi-theory depicted by the newly born South African constitutional adjudication which was lacking in substantive reasoning (which I equate to substantive equality) and the absence of a rigorous jurisprudence. He goes so far as to assimilate the finding of genuine substantive reasoning within these judgements to the possibility of touching a rainbow — a mythical task which, although alluring, seems impossible. Thus, I have identified the problem that South Africa is still submerged in rainbow jurisprudence. This can be seen through various court cases that will be discussed below, ranging from cases that were clearly decided from a formal equalitarian perspective to those which depict a wolf in sheep’s clothing seemingly substantive judgements disguising the formal equality lurking beneath.

The Role of Error in Objecto in South African Criminal Law

2016 ◽  
Vol 80 (1) ◽  
pp. 45-63
Author(s):  
Kelly Phelps
Keyword(s):  
South Africa ◽  
South African ◽  
Criminal Law ◽  
Individual Autonomy ◽  
Constitutional Court ◽  
Basic Principles ◽  
Subjective Approach ◽  
Logical Conclusion ◽  
A Charge

State v Pistorius provides an opportunity to consider error in objecto in the context of the broader approach to dolus in South African criminal law. For the last 60 years South Africa has taken a consistently subjective approach to assessing intention, evidenced through the courts’ rejection of versari, the presumption of intent and transferred malice. This upholds individual autonomy and assigns blame on a principled basis, thus it has achieved recognition from the Constitutional Court. By recognising foresight/knowledge of unlawfulness as a component of dolus, De Blom took subjectivity to its logical conclusion in 1977. Consequently, error in objecto likely only applies to dolus directus, is heavily influenced by the now defunct doctrine of transferred malice and has not become an entrenched principle in our law. It must thus yield to the basic principles of criminal law, including subjectivity and the putative defences flowing from De Blom. This was the manner in which it was correctly applied in State v Pistorius, although the reasoning was not evident in the judgment. Reviewing error in objecto in the broader scheme of dolus therefore shows that it is inaccurate to claim that the victim’s identity is always irrelevant to a charge of murder.

Working Our Way Out of Privilege: Lessons from South Africa on Preparing White Americans for a National Transitional Justice Process

2019 ◽  
Vol 47 (1) ◽  
pp. 61-82
Author(s):  
Susan Wysor Nguema
Keyword(s):  
United States ◽  
South Africa ◽  
Social Workers ◽  
South African ◽  
Transitional Justice ◽  
The United States ◽  
White Americans ◽  
Black South African ◽  
Confidence Levels ◽  
Justice Process

This study utilized difference-in-differences analysis to determine likelihood of confidence in four major public institutions over three periods of time in South Africa and the United States, two prior to South Africa’s transitional justice process and one after.  Results indicate that Black South African confidence rose while White South African confidence dropped drastically.  American confidence levels, for both races, remained relatively consistent over all three time periods.  The drastic drop in White South African likelihood of confidence points to possible feelings of loss related to power and privilege.  These results provide insight for social workers interested in addressing racial injustice in the United States, particularly for White social workers seeking to prepare White individuals for what a transitional justice process may look like and the resulting feelings of loss from the creation of a more equitable state.

Revisiting the Arab Uprisings

2019 ◽  
Keyword(s):  
Transitional Justice ◽  
Large Range ◽  
Comparative Approach ◽  
Political Transitions ◽  
Arab Uprisings ◽  
Civil Military Relations ◽  
Arab Politics ◽  
The One ◽  
Military Relations

Since 2013, the Middle East has experienced a double trend of chaos and civil war, on the one hand, and the return of authoritarianism, on the other. That convergence has eclipsed the political transitions that occurred in the countries whose regimes were toppled in 2011, as if they were merely footnotes to a narrative that naturally led from an “Arab Spring” to an “Arab Winter”. This volume aims at rehabilitating those transitions, by considering them as expressions of a “revolutionary moment” whose outcome was never pre-determined, but depended on the choices of a large range of actors. It brings together leading scholars of Arab politics to adopt a comparative approach to a few crucial aspects of those transitions: constitutional debates, the question of transitional justice, the evolution of civil-military relations, and the role of specific actors, both domestic and international.

scholarly journals Revisiting reviewing: The need for a debate on the role of arts journalism in South Africa

Literator ◽  
2004 ◽  
Vol 25 (1) ◽  
pp. 139-158 ◽  
Author(s):  
H. Wasserman
Keyword(s):  
South Africa ◽  
South African ◽  
Cultural Context ◽  
South African Society ◽  
Roles And Responsibilities ◽  
Artistic Production ◽  
Arts Festival ◽  
The One ◽  
The Relationship

The assault on the editor of a publication at a South African arts festival by an artist who disliked a review of his concert again highlighted an age-old rift between artists and critics. However, the response that this incident elicited among readers of this and other publications, showed surprising support for the artist rather than for the journalist. If this is read as an indication of a disillusionment among readers with regard to the standards of arts journalism in South Africa, the relationship between arts journalists and society should be re-examined. Ethical journalism rests upon a relationship between journalist and audience, and a sensitivity for the context in which journalism is practised. This article examines arts journalism within changing societal contexts, with a specific focus on the South African situation, where artistic production still bears witness to cultural and ethnic divisions of the past. Against the background of the changes that have occurred in society on a local and global level, it is argued that a re-evaluation of the roles and responsibilities of arts journalists is needed – especially in the light of the formation of new cultural identities after apartheid. In conclusion, an ongoing and indepth debate about the ethical responsibility of arts journalism is suggested in order to ensure its continued relevance within an increasingly commercialised cultural context on the one hand, and within a changing South African society on the other.

ROLE OF LIBRARIANS IN TEACHING INFORMATION LITERACY IN ZIMBABWEAN AND SOUTH AFRICAN UNIVERSITIES: A COMPARATIVE STUDY

Mousaion ◽  
2016 ◽  
Vol 33 (1) ◽  
pp. 23-42 ◽  
Author(s):  
Tinashe Mugwisi
Keyword(s):  
South Africa ◽  
South African ◽  
Information Literacy ◽  
Ethical Issues ◽  
University Libraries ◽  
Information And Communications Technologies ◽  
Communications Technologies ◽  
Information Skills ◽  
The University

Information and communications technologies (ICTs) and the Internet have to a large extent influenced the way information is made available, published and accessed. More information is being produced too frequently and information users now require certain skills to sift through this multitude in order to identify what is appropriate for their purposes. Computer and information skills have become a necessity for all academic programmes. As libraries subscribe to databases and other peer-reviewed content (print and electronic), it is important that users are also made aware of such sources and their importance. The purpose of this study was to examine the teaching of information literacy (IL) in universities in Zimbabwe and South Africa, and the role played by librarians in creating information literate graduates. This was done by examining whether such IL programmes were prioritised, their content and how frequently they were reviewed. An electronic questionnaire was distributed to 12 university libraries in Zimbabwe and 21 in South Africa. A total of 25 questionnaires were returned. The findings revealed that IL was being taught in universities library and non-library staff, was compulsory and contributed to the term mark in some institutions. The study also revealed that 44 per cent of the total respondents indicated that the libraries were collaborating with departments and faculty in implementing IL programmes in universities. The study recommends that IL should be an integral part of the university programmes in order to promote the use of databases and to guide students on ethical issues of information use.

The Prophetic Voice of the Church in a Democratic South Africa – A Theological Reflection

2018 ◽  
Vol 15 (2) ◽  
Author(s):  
Lufuluvhi Maria Mudimeli
Keyword(s):  
South Africa ◽  
Economic Transformation ◽  
The State ◽  
Black Liberation ◽  
South Africans ◽  
Black Liberation Theology ◽  
Prophetic Voice ◽  
The Face ◽  
The Church

This article is a reflection on the role and contribution of the church in a democratic South Africa. The involvement of the church in the struggle against apartheid is revisited briefly. The church has played a pivotal and prominent role in bringing about democracy by being a prophetic voice that could not be silenced even in the face of death. It is in this time of democracy when real transformation is needed to take its course in a realistic way, where the presence of the church has probably been latent and where it has assumed an observer status. A look is taken at the dilemmas facing the church. The church should not be bound and taken captive by any form of loyalty to any political organisation at the expense of the poor and the voiceless. A need for cooperation and partnership between the church and the state is crucial at this time. This paper strives to address the role of the church as a prophetic voice in a democratic South Africa. Radical economic transformation, inequality, corruption, and moral decadence—all these challenges hold the potential to thwart our young democracy and its ideals. Black liberation theology concepts are employed to explore how the church can become prophetically relevant in democracy. Suggestions are made about how the church and the state can best form partnerships. In avoiding taking only a critical stance, the church could fulfil its mandate “in season and out of season” and continue to be a prophetic voice on behalf of ordinary South Africans.

The role of Constitutional Courts in Transitional Justice: Colombia and South Africa

2016 ◽  
Vol 9 (15) ◽  
Author(s):  
Nadiehezka Paola Palencia Tejedor
Keyword(s):  
South Africa ◽  
Structural Analysis ◽  
Transitional Justice ◽  
Critical Analysis ◽  
Historical Context ◽  
Constitutional Courts ◽  
Political Background ◽  
Similarities And Differences ◽  
Peace And Reconciliation

This work focuses on a compared analysis of the South Afri- can decision related to the “peace and reconciliation act” of this country’s Parliament, and the Colombian decision regarding the amendment of the constitution called “The juridical framework for the peace.” Turning to the structure, it is developed in three major topics: 1. It provides a brief of the historical context, political background and an overview of the two decisions.2. It gives a structural analysis of the powers that each Court has and the nature of the constitutional mechanism through which both Courts decided the constitutionality of the said norms 3. It presents a critical analysis on the similarities and differences between the two systems and judgments. It presents some con- clusions. 

scholarly journals Truth and reconciliation in South Africa: Hindu experiences and concerns

2004 ◽  
Vol 60 (4) ◽  
Author(s):  
P.G.J. Meiring
Keyword(s):  
South Africa ◽  
South African ◽  
Truth And Reconciliation Commission ◽  
Faith Communities ◽  
The South ◽  
Reconciliation Commission ◽  
Truth And Reconciliation ◽  
Hindu Community ◽  
The Way

The author who served on the South African Truth and Reconciliation Commission (TRC), focuses on the Hindu experience in South Africa during the apartheid years. At a special TRC Hearing for Faith Communities (East London, 17-19 November 1997) two submissions by local Hindu leaders were tabled. Taking his cues from those submissions, the author discusses four issues: the way the Hindu community suffered during these years, the way in which some members of the Hindu community supported the system of apartheid, the role of Hindus in the struggle against apartheid, and finally the contribution of the Hindu community towards reconciliation in South Africa. In conclusion some notes on how Hindus and Christians may work together in th

The Constitutional Court of South Africa: Thoughts on its 25-Year-Long Legacy of Judicial Activism

2021 ◽  
Vol 56 (1) ◽  
pp. 18-33
Author(s):  
Lucky Mathebe
Keyword(s):  
South Africa ◽  
Constitutional Court ◽  
Transformative Change ◽  
Democratic Accountability ◽  
Constitutional Democracy ◽  
The Public ◽  
Crime And Punishment ◽  
Black And White ◽  
Marginalised Groups

After almost 25 years of what could justifiably be called transformative change in South Africa, a truism is that the country’s new legal order, established by the Constitution in 1993 and 1996, provides the critical foundation of peace and security upon which its freedom has been built. The Constitutional Court was one of the most important of the new democratic institutions in the shaping of the country’s position as a constitutional democracy, upholding the values for which millions of people, black and white, had fought. This article is a brief reflection on the role of the Court in establishing the meaning of this democracy and giving it effect. The main goal of the article is to understand how the Court’s new jurisprudence works in particular contexts, how its work is related to crime and punishment, and what it means for the rights of marginalised groups in society. Using the examples of the Court’s decision in Makwanyane on the death penalty, and the Court’s decision on the findings of the Public Protector’s report on Nkandla, the article finds that the Court’s new jurisprudence takes quite a different view of legal developments in South Africa, insofar as the jurisprudence entrusts broad discretion to the Court and emphasises the need for sustained leadership of the Court to advance the battle for fundamental human rights, the rule of law, and democratic accountability.

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