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 Uitgangspunte vir staatsoptrede in die Institusie van Calvyn soos vergelyk met uitgangspunte van Suid-Afrika se Handves van Regte (1996)

2010 ◽  
Vol 44 (2) ◽  
Author(s):  
P.J. Strauss
Keyword(s):  
South Africa ◽  
South African ◽  
State Government ◽  
The State ◽  
John Calvin ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
The Bible ◽  
The Law

Points of departure for the state in the Institutes of Calvin compared with points of departure of the South African Bill of Rights (1996) In the last chapter of his “Institutes” the reformer John Calvin (1509-1564) concentrates on points of departure for the state and on the task of the state government. Calvin is strongly influenced by the Bible and sees the state government as being ordained by God to exercise justice in society. For him justice and fairness should be the norm for every law created by the state.  The South African “Bill of Rights” is regarded as the highest law in the country. To prevent chaos or people exercising the law wrongly, the Constitution with the “Bill of Rights” in the final instance should be interpreted by the Constitutional Court. This makes South Africa a just state or a society governed by the constitution or law.  Although Calvin, like the “Bill of Rights”, has a feeling for justice to all, he and the Bill part company on the important issue that the state should be seen as a servant of God.

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.

MODERN FREEDOM OF TESTATION IN SOUTH AFRICA: ITS APPLICATION BY THE COURTS

2015 ◽  
Vol 2 (1) ◽  
Author(s):  
Patrick Matsemela
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Bill Of Rights ◽  
The South ◽  
Central Thesis ◽  
Locus Standi ◽  
Statutory Law ◽  
The Law

Freedom of testation is considered to be one of the founding principles of the South African law of testate succession. Testators are given freedom to direct how their estate should devolve and free rein to dispose of their assets as they deem fit. As a result, effect must be given to the expressed wishes of the testator. Prior to 1994, such freedom could be limited only by common law or statutory law; more recently, such freedom has been tested against the Constitution of South Africa. This means that a provision in a will cannot be enforced by the courts if it is contra bonos mores, impossible or too vague, in conflict with the law, or is deemed to be unconstitutional.Having regard to the unfair discrimination provisions of section 9(3) of the Final Constitution, can a court enforce a will or a trust deed which discriminates against potential beneficiaries on account of their race, gender, religion or disability? Will such clause pass the test of constitutionality, be justified or considered to achieve a legitimate objective? Can potential beneficiaries or anyone who has locus standi challenge the freedom of testation by relying on the freedoms and rights entrenched in the Bill of Rights? It is against this background that the paper attempts to answer these questions and explore the extent to which the Constitution has an impact on freedom of testation. The central thesis of the article is to determine whether clauses in wills or trust instruments which differentiate between different classes of beneficiary can be deemed to be valid. This is done by looking at several more recent cases that have appeared before our courts.

A Theological Evaluation of the South African Constitutional Value of Human Dignity

2007 ◽  
Vol 1 (3) ◽  
pp. 320-339 ◽  
Author(s):  
Nico Vorster
Keyword(s):  
South African ◽  
Human Dignity ◽  
Constitutional Court ◽  
The South ◽  
Classical Liberal ◽  
Democratic State ◽  
Christian Perspective ◽  
South African Constitution

AbstractOne of the key objectives of the South African constitution is to create a sovereign democratic state founded upon human dignity. The South African Constitutional Court relies mainly on the classical, liberal view of human dignity to give judicial content to the constitutional value of human dignity. This article compares the South African constitutional concept of human dignity with a Reformed-Christian perspective. It identifies shortcomings in the South African constitutional understanding of human dignity, and indicates how a Christian perspective on human dignity offers a more philosophical and judical substance to human dignity.

scholarly journals Proportionality and the limitation clauses of the South African Bill of Rights

2014 ◽  
Vol 17 (6) ◽  
pp. 2229
Author(s):  
IM Rautenbach
Keyword(s):  
South African ◽  
Public Interest ◽  
General Concept ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Levels Of Abstraction ◽  
Global Constitutionalism ◽  
South African Constitution ◽  
The Right

"Proportionality" is a contemporary heavy-weight concept which has been described as an element of a globalised international grammar and as a foundational element of global constitutionalism. The article firstly describes the elements of proportionality as they are generally understood in foreign systems, namely whether the limitation pursues a legitimate aim, whether the limitation is capable of achieving this aim, whether the act impairs the right as little as possible and the so-called balancing stage when it must be determined whether the achievement of the aim outweighs the limitation imposed. The German academic Alexy (Theorie der Grundrechte (1986)) developed what he called a mathematical weight formula to deal with the balancing stage. An overview is provided of how the elements of proportionality were dealt with in the text of the South African interim Constitution of 1994, the early jurisprudence of the Constitutional Court, and in the text of the final Constitution of 1996. Contemporary South African academic criticism of the use of the concept is also analysed. The article then endeavours to relate the elements of Alexy’s weight formula to both the elements of the South African general limitation clause in section 36 of the Constitution and to the appearance of such elements in the formulation of specific rights in the Bill of Rights. Although the levels of abstraction reached in the debates on the Alexy formula are so daunting that it is most unlikely that South African courts and practitioners will ever use it, certain valuable insights can be gained from it for the purposes of dealing with proportionality within the context of the limitation of rights in South Africa. Despite opposition from certain academics, proportionality is a prominent feature of the application of the limitation clauses in the South African Constitution. The elements of proportionality provides a useful tool for the application, within the context of the limitation of rights, of general and wide concepts such as "fairness", "reasonableness", "rationality", "public interest" and, somewhat surprisingly, also of the general concept "proportionality" as such. South Africa’s participation in the global recognition and application of this way of dealing with the limitation of rights is worthwhile.

scholarly journals Od kultury władzy do kultury uzasadniania. Doświadczenia południowoafrykańskie

2017 ◽  
Vol 110 ◽  
pp. 83-94
Author(s):  
Marek Smolak
Keyword(s):  
South Africa ◽  
South African ◽  
Rule Of Law ◽  
Human Dignity ◽  
Constitutional Court ◽  
The South ◽  
The Rule Of Law ◽  
Gradual Shift ◽  
Proportionality Test

FROM THE CULTURE OF AUTHORITY TO THE CULTURE OF JUSTIFICATION. SOUTH AFRICAN EXPERIENCES The article focuses on gradual shift from the culture of authority to the culture of justification in South Africa. In culture of authority, justification for action is provided mainly at the stage of assigning authority and once authority has been assigned, the authorized body needs to offer lit­tle justification for its specific decisions. In aculture of justification even after authority has been assigned, the authorized body must still provide justification for all of its decisions. The culture of justification is associated with the expansive jurisdiction for the South African Constitutional Court. If proportionality is essentially arequirement of justification it is worthy to focus on The South Afri­can Constitutional Court, which has developed original proportionality test. This article examines the application of the test in order to evaluate the progress toward asociety based on human dignity, equality, and freedom. This evaluation is needed not only for South Africa but also for those states which struggle with infringement of the rule of 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 THE ADMISSION AND ENROLMENT OF FOREIGN LEGAL PRACTITIONERS IN SOUTH AFRICA UNDER THE LEGAL PRACTICE ACT: INTERNATIONAL TRADE LAW AND CONSTITUTIONAL PERSPECTIVES

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Cornelius Hagenmeier ◽  
Tapiwa Shumba ◽  
Obeng Mireku
Keyword(s):  
South Africa ◽  
South African ◽  
Fundamental Rights ◽  
Bill Of Rights ◽  
Trade In Services ◽  
Legal Practice ◽  
The South ◽  
Legal Method ◽  
Permanent Resident ◽  
South African Constitution

Globalisation requires ever closer co-operation between legal professionals hailing from different national jurisdictions. This interactive global environment has fostered growing international training and mobility among legal practitioners and the internationalisation of legal education. Increasing numbers of law students get trained in other countries as part of their undergraduate degrees or even come to foreign shores to obtain law degrees. Many students hailing from other African countries study towardsLLBdegrees at South African universities. Major commercial law firms ensure that they can offer in-house expertise on major foreign legal systems and co-operate with partner firms in other parts of the globe.The General Agreement on Trade in Services (GATS), to which South Africa is a party, is a multilateral agreement focusing on the liberalisation of trade in services amongst member countries. Services under the GATS system include legal services. The commitments made by South Africa under this agreement require that South Africa allows foreign legal practitioners to establish a commercial presence or be transferred to South Africa. The Bill of Rights entrenched in Chapter 2 of the South African Constitution guarantees fundamental rights including the right to equality and freedom of trade, occupation and profession. With the coming into force of the new Legal Practice Act 28 of 2014, which provides a legislative framework for regulating the affairs of legal practitioners, including their admission and enrolment, it is necessary to assess the extent to which the Act complies with the GATS rules and the South African Constitution.This paper examines the new Legal Practice Act 28 of 2014, and examines whether the Act addresses the conflicts that have always existed between the regulation of the legal profession and the admission of legal practitioners in South Africa with South Africa's commitments under the GATS system. Using the doctrinal legal method, it analyses and evaluates the rules governing the admission of foreign attorneys in South Africa from two perspectives. First, it considers them in the light of the international law obligations of the country and second it evaluates whether or not they comply with the South African Constitution, and more specifically with the Bill of Rights entrenched in the South African Constitution. While the new legislation may assist in ensuring the compliance of South Africa with the relevant GATS rules, it will depend on the regulations which still have to be promulgated to what extent the new legal framework will achieve the full compliance of South Africa with all relevant GATS rules.The paper concludes with recommendations for the reform of the Legal Practice Act. It argues that while the requirement to be a South African permanent resident in order to qualify for admission as an attorney may be justifiable in terms of GATS and in terms of South African constitutional law, it is not in South Africa's best interest to retain it. Consequently, the paper calls for the repeal of the permanent residence requirement for admission as an attorney in the county.

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.

Extending Death Benefits to Cohabitants under Section 37C of the South African Pension Funds Act: Hlathi v University of Fort Hare Retirement Fund

2012 ◽  
Vol 56 (2) ◽  
pp. 296-306
Author(s):  
Ntombizozuko Dyani
Keyword(s):  
South Africa ◽  
South African ◽  
Legal Protection ◽  
Pension Funds ◽  
Bill Of Rights ◽  
The South ◽  
Retirement Fund ◽  
University Of Fort Hare

AbstractCohabitation is left largely unregulated in South Africa, which means that many cohabitants are left destitute or financially worse off when their cohabiting partners die. The Pension Funds Act 24 of 1956, in particular section 37C, is one of the few pieces of legislation that afford legal protection to cohabitants who are left financially worse off due to the death of their partners. However, three previous pension funds adjudicators gave different views as to how to interpret this provision. This note seeks to compare three decisions by three different adjudicators and concludes that the latest decision in Hlathi is the most preferred, because it interprets section 37C progressively, taking into account the spirit, purport and objects of the Bill of Rights.

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