Falling Short of Constitutional Norms: Does “Normative (In)Congruence” Explain the Courts' Inability to Promote the Right to Water in South Africa?

2018 ◽  
Vol 43 (03) ◽  
pp. 796-826 ◽  
Author(s):  
Richard Stacey
Keyword(s):  
South Africa ◽  
Social Justice ◽  
Rule Of Law ◽  
Empirical Investigation ◽  
Water Law ◽  
The Rule Of Law ◽  
Judicial Intervention ◽  
Constitutional Right ◽  
The Right ◽  
Formal Rules

In South Africa, municipal noncompliance with legislation promoting the constitutional right to sufficient water is both a failure of the rule of law and a betrayal of that right. Judicial intervention has prompted formalistic compliance with water law, but the underlying commitment to sufficient water remains unfulfilled. Does the inability of courts to achieve social justice despite enforcing social legislation confirm the thesis that commitments to the rule of law and to social justice are inconsistent, that upholding the rule of law may not advance social justice? This article offers an alternative to this “inconsistency thesis,” arguing that the rule of law can accommodate social justice if it demands normative congruence alongside congruence with formal rules. Empirical investigation reveals that structural challenges and the multifarious normative demands on officials create a condition of normative incongruence that impedes the pursuit of social justice, even as courts compel congruence with formal rules.

scholarly journals Constitutional complaint in the context of the principle of the rule of law

2020 ◽  
pp. 111-117
Author(s):  
Olha Turchenko
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Main Idea ◽  
Constitutional Court ◽  
Final Decision ◽  
Controversial Issues ◽  
The Rule Of Law ◽  
The Law ◽  
Constitutional Right ◽  
The Right

As a direct manifestation of the implementation of the rule of law, it is necessary to consider the direction of the activities of theauthorities and their officials to ensure fundamental, inalienable human rights.Although part 1 of Article 55 of the Law “On the Constitutional Court of Ukraine” does not directly stipulate the protection offundamental constitutional human rights and freedoms, its legal nature as an individual instrument predetermines its inextricable linkwith the need to protect (restore) the rights of a specific identified person or group of persons. Even if, as a result of consideration ofthe complaint, a systemic problem of the constitutional legal order is highlighted, the protection of which, first of all, the activities ofthe Constitutional Court of Ukraine are directed, this does not change the nature of the constitutional complaint as an individual instrumentfor protecting rights.The legal specificity of a constitutional complaint is that it concerns a specific violated constitutional right belong to a specificsubject, while it also acts as a means of ensuring the supremacy of the Constitution of Ukraine.The article examines the problems of the implementation of a constitutional complaint, the essence, specifics, signs of a constitutionalcomplaint in the context of the principle of the rule of law, identifies controversial issues of a theoretical and practical natureon the implementation of the right to a constitutional complaint.In particular, the Law defines a constitutional complaint through the procedural concept of “petition”, which seems to be terminologicallyincorrect, since the concept of a complaint and a petition in the aspect of a person’s appeals exist separately from each other and have some differences. Since the Constitutional Court is legally obliged to verify the compliance of normative legal acts with theConstitution of Ukraine, it is advisable to define a constitutional complaint through a requirement, focusing on the requirement for therelevant entity to perform certain actions or refrain from them.Certain obscurity arises as to what kind of decision in the case should be considered the final decision of the court, which shouldconcern the constitutional complaint, it is seen that this can only be a decision of the court of last instance, that is, one whose appealhas already been fully implemented.In general, the introduction of the institution of constitutional complaint contributes to the rooting of the main idea of constitutionalism– the introduction of the principle of the rule of law, limitation of state power, the desire to protect human rights.

Is Xenophobic Violence and Criminality Systemic in Post-Apartheid South Africa? A Critical Analysis of Growing Denialism to 2015 Incidents

Politeia ◽  
2018 ◽  
Vol 37 (1) ◽  
Author(s):  
Mbekezeli Comfort Mkhize ◽  
Kongko Louis Makau
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Critical Analysis ◽  
Hate Crime ◽  
International Organisations ◽  
Foreign Nationals ◽  
The Rule Of Law ◽  
South Africans ◽  
Structural Problems ◽  
The Government

This article argues that the 2015 xenophobic violence was allowed to spread due to persistent inaction by state officials. While the utterances of King Goodwill Zwelithini have in part fuelled the attacks, officials tend to perceive acts of xenophobia as ordinary crimes. This perception has resulted in ill-advised responses from the authorities, allowing this kind of hate crime against foreign nationals to engulf the whole country. In comparison with similar attacks in 2008, the violent spree in 2015 is characterised by a stronger surge in criminal activities. The militancy showcased fed a sense of insecurity amongst foreigners, creating a situation inconsistent with the country’s vaunted respect for human rights and the rule of law. Investors lost confidence in the country’s outlook, owing in part to determined denialism in government circles regarding the targeting of foreigners. While drawing from existing debates, the article’s principal objective is to critically examine the structural problems that enable xenophobia to proliferate and the (in)effectiveness of responses to the militancy involved in the 2015 attacks. Of particular interest are the suggested responses that could be effective in curbing future violence. The article concludes that xenophobia is systemic in post-apartheid South Africa. Strong cooperation between the government, national and international organisations could provide the basis for successful anti-xenophobia measures. The article further argues that the country is obliged to find a sustainable solution to the predicament for humanitarian reasons firstly, and in recognition of the support South Africans received from its African counterparts during the liberation struggle.

PRINCIPLES OF STATE REGULATION OF THE ACTIVITIES OF BODIES OF THE STATE EXECUTIVE SERVICE AND PRIVATE EXECUTORS

2018 ◽  
Vol 1 (13) ◽  
pp. 69-77
Author(s):  
Mariіa Konstantinovna Kulava
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Social Relations ◽  
State Regulation ◽  
Court Decisions ◽  
Regulatory Requirements ◽  
The Rule Of Law ◽  
State Administration ◽  
Executive System ◽  
The Right

Within the presented article, taking into account already existing achievements of scientists, the concept, the main features of the principles of state administration of the executive system of Ukraine are defined. The principles of activity of executive bodies bodies according to the current legislation of Ukraine are determined. A brief description of the principles is presented, namely: the rule of law, legality, compulsory, independence, justice, impartiality and objectivity, discretion, transparency and openness of executive proceedings and its fixation by technical means, the reasonableness of the time limits for enforcement proceedings, the proportionality of enforcement measures and the amount of claims for decisions, the right to appeal decisions, actions or omissions of state executives, private performers. It is established that in general the principles of executive proceedings in the investigated normative acts are duplicated, in addition to the principles of independence and the right to appeal decisions, actions or inaction of state executives, private performers. The actual vision of the principles of public administration of the executive system of Ukraine is determined. The opinion on the need to supplement the list of principles with the following: the principle of equal competition between state and private performers through the balance between them; the principle of responsibility of the executive system bodies, their officials and private executors for damage caused as a result of violations of regulatory requirements; the principle of introducing effective incentives for voluntary implementation of decisions; the principle of professionalism and competence. Also, within the submitted article, it is stated that the use of the terms “principles” and “principles” in the Laws of Ukraine “On Bodies and Officials Performing Enforcement of Court Decisions and Decisions of Other Bodies”, “On Enforcement Proceedings”, which are adopted simultaneously and regulated, are unjustified, identical social relations.

Good Governance

2019 ◽  
Author(s):  
Henk Addink
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Good Governance ◽  
National Level ◽  
Administrative Law ◽  
Modern State ◽  
The Rule Of Law ◽  
The Third ◽  
Legal Perspective ◽  
Further Development

The pivotal aim of this book is to explain the creation, development, and impact of good governance from a conceptual, principal perspective and in the context of national administrative law. Three lines of reasoning have been worked out: developing the concept of good governance; specification of this concept by developing principles of good governance; and implementation of these principles of good governance on the national level. In this phase of further development of good governance, it is important to have a clear concept of good governance, presented in this book as the third cornerstone of a modern state, alongside the concepts of the rule of law and democracy. That is a rather new national administrative law perspective which is influenced by regional and international legal developments; thus, we can speak about good governance as a multilevel concept. But the question is: how is this concept of good governance further developed? Six principles of good governance (which in a narrower sense also qualify as principles of good administration) have been further specified in a systematic way, from a legal perspective. These are the principles of properness, transparency, participation, effectiveness, accountability, and human rights. Furthermore, the link has been made with integrity standards. The important developments of each of these principles are described on the national level in Europe, but also in countries outside Europe (such as Australia, Canada, and South Africa). This book gives a systematic comparison of the implementation of the principles of good governance between countries.

scholarly journals After Mazibuko: Exploring the responses of communities excluded from South Africa's water experiment

2017 ◽  
Vol 61 (1) ◽  
pp. 57-81 ◽  
Author(s):  
Nathan John Cooper
Keyword(s):  
South Africa ◽  
Resource Allocation ◽  
Social Engagement ◽  
Water Allocation ◽  
Constitutional Court ◽  
Water Access ◽  
Cultural Phenomenon ◽  
Legal Provisions ◽  
Constitutional Right ◽  
The Right

AbstractDespite a constitutional right to water, challenges remain for access to sufficient water in South Africa. This article considers the degree to which current legal provisions perpetuate approaches that are antithetical to genuinely eco-socio-sustainable water access. Water in South Africa has largely been re-cast as a commodity, exposed to market rules, proving problematic for many and giving rise to various responses, including litigation. In the seminal case of Mazibuko, the Constitutional Court failed to provide robust protection to the right to water, providing impetus for the formation of “commons” strategies for water allocation. Indeed, “commoning” is beginning to represent not only an emerging conceptual strand in urban resource allocation, but also a dynamic, contemporary, eco-sensitive, socio-cultural phenomenon, driving innovative, interactive and inclusive forms of planning and social engagement. Against the backdrop of unequal water access, commoning offers glimpses of an empowering and enfranchising subaltern paradigm.

NAČELO PRILAGOĐENOSTI USLUGE I PRAVO NA SLOBODAN IZBOR

2021 ◽  
Author(s):  
Jelena Janković ◽  
Keyword(s):  
Rule Of Law ◽  
Service Sector ◽  
Free Choice ◽  
Moral Authority ◽  
Service Users ◽  
Service Economy ◽  
Moral Dimension ◽  
The Rule Of Law ◽  
Legal Relationship ◽  
The Right

The first step of a positive change in the system of service-legal relations is a change of view on the role and importance of service users. By providing opportunity to the service user to be an active and important member of the service-legal relationship, a far-reaching and universal value of humanization of the service economy sector is achieved. In such circumstances, the moral authority of the service law is realized through its justice and through voluntary obedience to the law of the subjects of the service-legal relationship. Precisely, this moral dimension of the rule of law, in the service economy sector is realized by applying the principles of service suitability and the right to free choice. In this regard, the paper analyzes the moral dimension and culture of the rule of law in the service sector, based on the principle of service suitability and the right to free choice, which are presented in the paper as guardians of justice of the service-legal norm.

Judicial independence as a precondition for mutual trust? The CJEU in Minister for Justice and Equality v. LM

2018 ◽  
Vol 9 (3) ◽  
pp. 353-365 ◽  
Author(s):  
Petra Bárd ◽  
Wouter van Ballegooij
Keyword(s):  
Member State ◽  
Rule Of Law ◽  
Mutual Recognition ◽  
Judicial Independence ◽  
Fundamental Rights ◽  
Judicial Cooperation ◽  
The Rule Of Law ◽  
State Compliance ◽  
The Right ◽  
The Eu

This article discusses the relationship between judicial independence and intra-European Union (EU) cooperation in criminal matters based on the principle of mutual recognition. It focuses on the recent judgment by the Court of Justice of the EU in Case C-216/18 PPU Minister for Justice and Equality v. LM. In our view, a lack of judicial independence needs to be addressed primarily as a rule of law problem. This implies that executing judicial authorities should freeze judicial cooperation in the event should doubts arise as to respect for the rule of law in the issuing Member State. Such a measure should stay in place until the matter is resolved in accordance with the procedure provided for in Article 7 TEU or a permanent mechanism for monitoring and addressing Member State compliance with democracy, the rule of law and fundamental rights. The Court, however, constructed the case as a possible violation of the right to a fair trial, the essence of which includes the requirement that tribunals are independent and impartial. This latter aspect could be seen as a positive step forward in the sense that the judicial test developed in the Aranyosi case now includes rule of law considerations with regard to judicial independence. However, the practical hurdles imposed by the Court on the defence in terms of proving such violations and on judicial authorities to accept them in individual cases might amount to two steps back in upholding the rule of law within the EU.

scholarly journals Eroded Rule of Law, Endemic Violence and Social Injustice in Brazil

Lexonomica ◽  
2020 ◽  
Vol 12 (2) ◽  
pp. 211-242
Author(s):  
Mitja Kovač ◽  
Marcela Neves Bezerra
Keyword(s):  
Social Justice ◽  
Rule Of Law ◽  
Crime Rate ◽  
Social Inequalities ◽  
Prison System ◽  
Living Conditions ◽  
Social Injustice ◽  
Short Term ◽  
The Rule Of Law ◽  
Weak Rule

Modern Brazil is plagued by social and economic inequalities, endemic violence, crime, and a weak rule of law. Once these narratives become dependent on each other, all aspects must be worked on to change the scenario the country is facing: insecurity, fear and a lack of opportunities. This paper argues that the unprecedented rise of social injustice in Brazil is not the result of short-term measures but is part of its history marked by economic and social inequalities extending from its colonial past until today and the deficient policies on crime that emerged in the mid-1990s. Moreover, the current massive incarceration, overcrowding of prisons combined with the absence of human living conditions is turning the prison system in Brazil into a gigantic, perpetual school of crime. Investment in education that directly helps to lower the crime rate must be aligned with a new, less repressive and more inclusive punitive policy so as to induce criminals not to return to their unlawful ways. It is suggested that Brazil can only properly develop if efficient legal institutions, the rule of law, and criminal sanctioning based on the principles of social justice are available to all citizens.

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