scholarly journals A return to the manifest justice principle: a critical examination of the "reasonable suspicion/apprehension of bias" and "real possibility of bias" tests for judicial bias in South Africa and England

2017 ◽  
Vol 7 (2) ◽  
pp. 1
Author(s):  
ES Nwauche
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Fish Processing ◽  
Real Possibility ◽  
The Real ◽  
Fair Hearing ◽  
The Republic ◽  
The Right ◽  
Real Danger

The impartiality of judges often expressed in the Latin maxim nemo iudex in propria causa interpreted to mean that no man should be a judge in his own cause together with the right of fair hearing make up the right to natural justice. This principle is recognized by a number of provisions of the Constitution of the Republic of South Africa, 1996. Section 165 (4) provides that the organs of state shall through legislative and other measures assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. Furthermore, section 34 of the same Constitution provides that everyone has the right to have any dispute resolved by the application of law by a court or, where appropriate another independent and impartial tribunal or forum. Article 6(1) of the European Convention of Human Rights and Fundamental Freedoms 1950 as incorporated in the Human Rights Act 1988, applicable in England since 2000 provides that: "In the determination of his civil rights and obligations … everyone is entitled to a fair hearing … by an independent and impartial tribunal established by law." The independence of courts and impartiality of judges are closely related in that they operate to sustain public confidence in the administration of justice.This article advocates a return to the use of the manifest justice principle enshrined as the proper contextfor the application of the tests of "reasonable apprehension of bias" adopted by South African courtsand "real possibility of bias" adopted by English courtsin the consideration of allegation of apparent bias. This paper argues that the tests are differentand that while the English test is a move of English courts from the real danger/likelihoodtest in consonance with an overwhelming global jurisprudence the South African test is a move away from this global jurisprudence and arguably back to the real danger/likelihood test. This paper also argues that the reasonable apprehension test as applied by the minority in SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing)is a more acceptable interpretation of the reasonable apprehension test than the test laid down in President of the Republic of South Africa v South Africa Rugby Football Union (2) and its interpretation by the majority in SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing). More importantly there is an examination of cases where the tests have been applied which hopefully shows that there are considerable problems and inconsistency in their application and argue that the manifest justice principle provides the proper context for the tests to be properly applied.

scholarly journals Raamwerkwetgewing ter Verwesenliking van die Reg op Toegang tot Voldoende Voedsel

2017 ◽  
Vol 15 (5) ◽  
pp. 228
Author(s):  
Anél Terblanche ◽  
Gerrit Pienaar
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Food Security ◽  
South African ◽  
The South ◽  
The Republic ◽  
The Right ◽  
Human Rights Based Approach ◽  
Right Of Access ◽  
Sufficient Food

Various South African government reports list food security as a development priority. Despite this prioritisation and despite the fact that South Africa is currently food self-sufficient, ongoing food shortages remain a daily reality for approximately 35 percent of the South African population. The government's commitment to food security to date of writing this contribution manifests in related policies, strategies, programmes and sectoral legislation with the focus on food production, distribution, safety and assistance. A paradigm shift in the international food security debate was encouraged during 2009, namely to base food security initiatives on the right to sufficient food. During a 2011 visit to South Africa, the Special Rapporteur for the Right to Food of the United Nations, accordingly confirmed that a human rights-based approach to food security is necessary in the South African legal and policy framework in order to address the huge disparities in terms of food security (especially concerning geography, gender and race). A human rights-based approach to food security will add dimensions of dignity, transparency, accountability, participation and empowerment to food security initiatives. The achievement of food security is further seen as the realisation of existing rights, notably the right of access to sufficient food. The right of access to sufficient food, as entrenched in section 27(1)(b) of the Constitution of the Republic of South Africa, 1996 will accordingly play a central role within a human rights-based approach to food security. Section 27(2) of the Constitution of the Republic of South Africa, 1996 qualifies section 27(1)(b) by requiring the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of the section 27(1) rights. The South African government's commitment to food security, as already mentioned, currently manifests in related policies, strategies and programmes, which initiatives will qualify as other measures as referred to in section 27(2) mentioned above. This contribution, however, aims to elucidate the constitutional duty to take reasonable legislative measures as required by section 27(2) within the wider context of food security. This contribution is more specifically confined to the ways in which a human rights-based approach to food security can be accommodated in a proposed framework law as a national legislative measures. Several underlying and foundational themes are addressed in this contribution, amongst others: (a) the relationship between food security and the right of access to sufficient food; (b) food security as a developmental goal; and (c) the increasing trend to apply a human rights-based approach to development initiatives in general, but also to food security.

HUMAN RIGHTS, CULTURAL DIVERSITY AND CUSTOMARY LAW IN SOUTH AFRICA

2006 ◽  
Vol 50 (1) ◽  
pp. 2-23 ◽  
Author(s):  
EVADNÉ GRANT
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Customary Law ◽  
Constitutional Court ◽  
The South ◽  
The Republic ◽  
Human Rights Norms ◽  
The Right ◽  
Human Rights Standards

In the joined cases of Bhe v. Magistrate Khayelitsha and Others; Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another (2005(1) B.C.L.R. 1 (CC)), the South African Constitutional Court held unanimously that the male primogeniture rule according men rights to inheritance not enjoyed by women enshrined in the South African Customary Law of Succession violated the right to equality guaranteed under section 9 of the South African Constitution. On one level, the decision can be seen as a triumph for the universality of human rights norms. On another level, however, the case raises difficult questions about the relationship between human rights and culture. The aim of this paper is to assess the judgment critically in the context of the ongoing debate about the application of international human rights standards in different cultural settings.

scholarly journals SOME COMMENTS ON WATER RIGHTS IN SOUTH AFRICA

2017 ◽  
Vol 8 (1) ◽  
pp. 1
Author(s):  
N Gabru
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Fresh Water ◽  
Human Life ◽  
Bill Of Rights ◽  
The South ◽  
Economic Rights ◽  
Basic Part ◽  
The Right

Human life, as with all animal and plant life on the planet, is dependant upon fresh water. Water is not only needed to grow food, generate power and run industries, but it is also needed as a basic part of human life. Human dependency upon water is evident through history, which illustrates that human settlements have been closely linked to the availability and supply of fresh water. Access to the limited water resources in South Africa has been historically dominated by those with access to land and economic power, as a result of which the majority of South Africans have struggled to secure the right to water. Apartheid era legislation governing water did not discriminate directly on the grounds of race, but the racial imbalance in ownership of land resulted in the disproportionate denial to black people of the right to water. Beyond racial categorisations, the rural and poor urban populations were traditionally especially vulnerable in terms of the access to the right.  The enactment of the Constitution of the Republic of South Africa 1996, brought the South African legal system into a new era, by including a bill of fundamental human rights (Bill of Rights). The Bill of Rights makes provision for limited socio-economic rights. Besides making provision for these human rights, the Constitution also makes provision for the establishment of state institutions supporting constitutional democracy.  The Constitution has been in operation since May 1996. At this stage, it is important to take stock and measure the success of the implementation of these socio-economic rights. This assessment is important in more ways than one, especially in the light of the fact that many lawyers argued strongly against 1/2the inclusion of the second and third generation of human rights in a Bill of Rights. The argument was that these rights are not enforceable in a court of law and that they would create unnecessary expectations of food, shelter, health, water and the like; and that a clear distinction should be made between first generation and other rights, as well as the relationship of these rights to one another. It should be noted that there are many lawyers and non-lawyers who maintained that in order to confront poverty, brought about by the legacy of apartheid, the socio-economic rights should be included in a Bill of Rights. The inclusion of section 27 of the 1996 Constitution has granted each South African the right to have access to sufficient food and water and has resulted in the rare opportunity for South Africa to reform its water laws completely. It has resulted in the enactment of the Water Services Act 108 of 1997 and the National Water Act 36 of 1998.In this paper the difference between first and second generation rights will be discussed. The justiciability of socio-economic rights also warrants an explanation before the constitutional implications related to water are briefly examined. Then the right to water in international and comparative law will be discussed, followed by a consideration of the South African approach to water and finally, a few concluding remarks will be made.

scholarly journals OF SEMI-COLONS AND THE INTERPRETATION OF THE HATE SPEECH DEFINITION IN THE EQUALITY ACT South African Human Rights Commission v Qwelane (Freedom of Expression Institute as Amici curiae) and a related matter [2017] 4 All SA 234 (GJ)

Obiter ◽  
2018 ◽  
Vol 39 (2) ◽  
Author(s):  
Joanna Botha
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Eastern Cape ◽  
Threshold Test ◽  
Related Matter ◽  
The Republic

In South African Human Rights Commission v Qwelane (hereinafter “Qwelane”) the constitutionality of the threshold test for the hate speech prohibition in section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereinafter the “Equality Act”) was challenged. Although the court had no difficulty in finding that the publication in question fell squarely within the parameters of hate speech, the judgment is both incoherent and flawed. The court’s conjunctive interpretation of the section 10(1) requirements for hate speech also differs from the disjunctive interpretation given to the same provision in Herselman v Geleba (ECD (unreported) 2011-09-01 Case No 231/09 hereinafter “Herselman”) by the Eastern Cape High Court. The consequence is a “fragmented jurisprudence” which impacts on legal certainty, and which is especially dangerous when the legislation in question is critical to the achievement of the constitutional mandate (Daniels v Campbell NO 2004 (5) SA 331 (CC) par 104 hereinafter “Daniels”).This note demonstrates that the Qwelane court misapplied a number of key principles. These include: the court’s mandate in terms of section 39(2) of the Constitution of the Republic of South Africa, 1996 (hereinafter the “Constitution”); the need to strike an appropriate balance between competing rights in the constitutional framework; the importance of definitional certainty for a hate speech threshold test; the meaning to be ascribed to the terms “hate”, “hurt” and “harm” in the context of hate speech legislation; and the role of international law when interpreting legislation intended to give effect to international obligations.The consequence of these errors for hate speech regulation in South Africa is profound.

scholarly journals THE RIGHT TO PRIVACY AND DRUG-TESTING IN SPORT IN SOUTH AFRICA: COULD THE NEW ZEALAND CASE OF CROPP V JUDICIAL COMMITTEE PROVIDE SOME GUIDANCE?

Obiter ◽  
2021 ◽  
Vol 34 (1) ◽  
Author(s):  
Jean Wilké
Keyword(s):  
South Africa ◽  
New Zealand ◽  
South African ◽  
Drug Testing ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
The Republic ◽  
The Right

This article examines the right to privacy of athletes who are required to submit to drug tests. In South Africa, the right to privacy of an athlete with regard to drugtesting has not been challenged in the courts. However, the courts in New Zealand have had an opportunity to examine the right to privacy of an athlete in terms of drugtesting in sport. Therefore, the article discusses whether the decision in the NewZealand case of Cropp v Judicial Committee may provide some guidance to South African courts in the adjudication of whether the infringement and the limitation on the right to privacy in the context of drug-testing in sport can be reasonable and justified and concludes that such infringement may be reasonable and justified if a court is to consider a limitation of the right to privacy in terms of section 36 of the Constitution of the Republic of South Africa, 1996 as well as consent and safety.

Mike Campbell (Pvt) Ltd et al v The Republic of Zimbabwe: Zimbabwe's Land Reform Programme Held in Breach of the SADC Treaty

2009 ◽  
Vol 53 (2) ◽  
pp. 305-320 ◽  
Author(s):  
Gino J Naldi
Keyword(s):  
Human Rights ◽  
Racial Discrimination ◽  
South African ◽  
Land Reform ◽  
Land Redistribution ◽  
Reform Programme ◽  
Property Owners ◽  
Domestic Courts ◽  
The Republic ◽  
The Right

AbstractIn its first judgment the South African Development Community (SADC) Tribunal had to determine whether Zimbabwe's controversial programme of land redistribution for resettlement purposes was compatible with the SADC Treaty. The tribunal provided one of the few avenues of redress for farmers deprived of their property without compensation. It held that the land reform programme breached the treaty on the grounds that the property owners had been denied access to the domestic courts, that the applicants had been victims of racial discrimination, and that the state had failed to pay compensation for the lands compulsorily acquired. While the tribunal appears to have reached the right conclusions, its reasoning could have been more persuasive. Of wider significance is the fact that the tribunal has established itself as a forum that can provide relief for human rights violations. Its finding that human rights are justiciable under the treaty is notable.

scholarly journals The Right to Just Administrative Action in the Context of Suspending the Payment of Disputed Tax

2017 ◽  
Vol 20 ◽  
pp. 1-26
Author(s):  
Silke De Lange ◽  
Danielle Van Wyk
Keyword(s):  
South Africa ◽  
Literature Review ◽  
South African ◽  
Tax Administration ◽  
Research Approach ◽  
Administrative Action ◽  
The Republic ◽  
The Right ◽  
Relevant Factors ◽  
Discretionary Powers

Section 164(3) of the Tax Administration Act 28 of 2011 (hereafter TAA) provides a senior South African Revenue Service official (hereafter, respectively, SARS and senior SARS official) with discretionary powers to suspend the payment of disputed tax or a portion thereof, having regard to relevant factors, if the taxpayer intends to dispute the liability to pay such tax. Exercising a discretion in terms of section 164(3) of the TAA constitutes administrative action. Section 33(1) of the Constitution of the Republic of South Africa, 1996 (hereafter Constitution) grants everyone the right to just administrative action that is lawful, reasonable and procedurally fair and the Promotion of Administrative Action Act 3 of 2000 (hereafter PAJA) was promulgated to give effect to this right. The objective of this article is to apply the right to just administrative action to the manner in which the discretion in terms of section 164(3) of the TAA is exercised. This is achieved by adopting an explanatory research approach and performing a literature review of the discretion process in terms of section 164(3) of the TAA and the constitutional obligations in terms of section 33 of the Constitution as given effect to in PAJA. As the discretion exercised by the senior SARS official is influenced directly by the right to just administrative action, it should be exercised in a lawful, reasonable and procedurally fair manner to ensure compliance with the Constitution and the PAJA. For the discretion to be exercised in a lawful manner, the senior SARS official must at least be authorised to exercise the discretion in terms of the TAA and comply with the procedures and conditions stated in section 164(3) of the TAA. For the decision to be considered reasonable, the decision must be, at the minimum, rational and proportional, and to ensure that the discretion is exercised in a procedurally fair manner, SARS should comply with at least the relevant compulsory elements in terms of section 3(2)(b) of PAJA. A decision in terms of section 164(3) of the TAA which fails to meet the requirements of lawfulness, reasonableness and/or procedural fairness will be subject to review on several grounds listed in section 6(2) of PAJA.     

scholarly journals The Regulations relating to Foodstuffs for Infants and Young Children (R 991): A Formula for the Promotion of Breastfeeding or Censorship of Commercial Speech?

2017 ◽  
Vol 17 (1) ◽  
pp. 295
Author(s):  
Lize Mills
Keyword(s):  
Public Health ◽  
South Africa ◽  
Young Children ◽  
South African ◽  
Commercial Speech ◽  
Department Of Health ◽  
Infant Formulae ◽  
The Republic ◽  
The Right ◽  
Advertising And Promotion

The regulation of commercial speech in the interests of public health is an issue which recently has become the topic of numerous debates. Two examples of such governmental regulation are the subjects of discussion in this article, namely the prohibition on the advertising and promotion of tobacco products, as well as the proposed prohibition on the advertising and promotion of infant formulae and other foods and products marketed as being suitable for infants or young children. The article seek to evaluate the recently proposed regulations published in terms of the Foodstuffs, Cosmetics and Disinfectants Act in the light of the reasoning by the Supreme Court of Appeal in the British American Tobacco South Africa (Pty) Limited v Minister of Health 463/2011) [2012] ZASCA 107 (20 June 2012) decision, and in particular in terms of the section 36 test of reasonableness and proportionality found in the Constitution of the Republic of South Africa, 1996. It argues that, although the South African Department of Health must be applauded for its attempt at improving public health in the country, some of the provisions of the proposed regulations are not constitutionally sound. It will be contended that, despite the fact that the promotion of breastfeeding is a laudable goal, the introduction only of measures which restrict the right to advertise these types of products will not necessarily achieve this objective.

scholarly journals The Right to Strike and Replacement Labour: South African Practice Viewed from an International Law Perspective

2018 ◽  
Vol 21 ◽  
pp. 1-34
Author(s):  
Stefan Van Eck ◽  
Tungamirai Kujinga
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Labour Law ◽  
International Labour Organisation ◽  
Labour Relations ◽  
Essential Services ◽  
The Republic ◽  
Labour Legislation ◽  
The Right

South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the right to strike and the use of replacement labour during strikes falls within the ambits of internationally and constitutionally acceptable labour norms. Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of strike-breakers during legal strikes in non-essential services as a violation of the right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's right to strike and the LRA gives effect to this right. However, the foundation of this right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during strike action. This article investigates whether replacement labour undermines the right to strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation.    

scholarly journals Defending the Absurd: The Iconoclast's Guide to Section 47(1) of the Superior Courts Act 10 of 2013

2017 ◽  
Vol 17 (5) ◽  
pp. 1827
Author(s):  
Haneen McCreath ◽  
Raymond Koen
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
South African ◽  
Conventional Wisdom ◽  
Civil Litigation ◽  
The Supreme Court ◽  
Core Value ◽  
The Republic ◽  
The Right ◽  
Right Of Access

This contribution was intended as a defence of section 25(1) of the Supreme Court Act 59 of 1959. However, the Supreme Court Act was repealed in August 2013 and replaced by the Superior Courts Act 10 of 2013, and in the process section 25(1) of the former gave way to section 47(1) of the latter. Both sections concern the doctrine of leave to sue judges in South Africa. Both prescribe that any civil litigation against a judge requires the consent of the court out of which such litigation is to be launched. Both apply to civil suits against judges for damage caused by either their judicial or their non-judicial conduct.Although section 25(1) had been one of the more inconspicuous sections of the Supreme Court Act, it was contested on occasion. Both curial and extra-curial challenges to section 25(1) assailed its constitutionality, alleging essentially that its provisions violated the right of access to courts enshrined in section 34 of the Constitution of the Republic of South Africa, 1996 and that such violation did not meet the limitation criteria contained in section 36. It may be anticipated with considerable confidence, given its legal continuity with section 25(1), that any serious assault upon section 47(1) of the Superior Courts Act also will focus upon its relationship to section 34 of the Constitution.This contribution is a pre-emptive defence of section 47(1) of the Superior Courts Act and, by extrapolation, a belated justification of section 25(1) of the Supreme Court Act. An attempt will be made to demonstrate, contrary to conventional wisdom, that section 47(1) does not limit section 34 and passes constitutionalmuster at the first level of enquiry, thereby obviating the need for advancing to the second level of enquiry contained in section 36 of the Constitution.The jurisprudential crux of section 47(1) of the Superior Courts Act is embedded in the nature of the judicial office and its core value of judicial impartiality. The procedural immunity which the section affords South African judges is a mechanism for sparing them the nuisance of having to deal with frivolous litigation, either as defendant or as adjudicator. Every specious suit against a judge, per definitionem, represents an incursion into judicial impartiality by urging that the court give credence to a claim which does not qualify for curial adjudication. In this regard, the doctrine of leave to sue seeks to ensure that judges do not have to adjudicate claims which resort beyond the compass of their judicial capacity. It is a doctrine which operates to protect and advance the unimpeachable principle of judicial impartiality.

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