scholarly journals Recalibrating Everyday Space: Using Section 24 of the South African Constitution to Resolve Contestation in the Urban and Spatial Environment

2021 ◽  
Vol 24 ◽  
pp. 1-31
Author(s):  
Thomas Coggin
Keyword(s):  
South African ◽  
Shape Space ◽  
Prima Facie ◽  
The State ◽  
The South ◽  
African City ◽  
Spatial Environment ◽  
South African Constitution ◽  
The Right ◽  
Everyday Space

Positioned as existing predominantly within a green agenda, the right to an environment (section 24 of the Constitution of the Republic of South Africa, 1996) presents numerous opportunities for rights-based interpretation in the "brown" urban and spatial environment. In this article I conduct such an exercise, focussing on both the right to freedom of movement (section 21 of the Constitution) and the right to the safety and security of the person (section 12 of the Constitution). I begin by drawing out the historical and contemporary spatial implications of both rights, drawing on empirical research that demonstrates how the enclosure of everyday space through gating practices and private securitisation in the South African city serves to extend spatial apartheid into the current day. A siloed interpretation of both rights, however, leads to an impasse between the two. Both rights are prima facie of an equal value in a constitutional setting. To resolve this standoff, I argue for the use of the environmental right as a constitutional value. This is an underutilised right in the South African Constitution, and yet it holds much promise given how it seeks to protect the health and wellbeing of both present and future generations. There are two benefits to employing the environmental right as a constitutional value. First, the environmental right situates both section 12 and section 21 in a symbiosis of individual claims to shared resources, in the process recalibrating the human ecology of the urban and spatial environment away from the centrality of dominant actors and towards a polycentricity of interests. In so doing, section 24 provides a fuller and more connected picture of both rights. Second, the duty implicit in the environmental right reveals how to begin realising these rights on a wider scale that goes beyond individual injustices and towards community justice. I argue strongly that this duty exists on the state: left unattended to, everyday space becomes the preserve of those with the means – financial or otherwise – to shape space according to their own anti-public interests. In this regard, I present two instances of policy and legal choices available to the state that serve to undo contemporary experiences of spatial apartheid

scholarly journals THE RIGHT TO MOTHER-TONGUE EDUCATION: PRACTICABLE OR NOT?

Obiter ◽  
2021 ◽  
Vol 34 (2) ◽  
Author(s):  
Chrizell Chürr
Keyword(s):  
South African ◽  
Basic Education ◽  
Mother Tongue ◽  
Cumulative Effect ◽  
The South ◽  
National Education ◽  
Mother Tongue Education ◽  
South African Constitution ◽  
The Right ◽  
South African Schools Act

Mother-tongue and mother-tongue education are recognized worldwide as one of the most efficient ways to function cognitively and socially. This article addresses the role of proper mother-tongue education with an emphasis on the importance of “language” since language is vital to a child’s right to a basic education in all its dimensions. Without mother-tongue education, every child’s right to learn and to become a skilful adult, able to participate independently in society, is at risk. The cumulative effect of the South African Constitution, the National Education Policy Act, the South African Schools Act, several international instruments and a number of ground-breaking cases, as well as the interaction between them on mother-tongue education will be examined. The implementation of certain education models will also be proposed.

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.

scholarly journals TEORI INTERNASIONALISME DALAM SISTEM HUKUM NASIONAL

2015 ◽  
Vol 9 (2) ◽  
pp. 199
Author(s):  
Ninon Melatyugra
Keyword(s):  
International Law ◽  
South African ◽  
The State ◽  
Process Theory ◽  
The South ◽  
Legal Process ◽  
Crucial Problem ◽  
Municipal Law ◽  
South African Constitution ◽  
Transnational Legal Process

<p><strong>Abstrak</strong></p><p>Konstitusi suatu negara memegang peran penting dalam menjelaskan posisi hukum internasional dalam sistem hukum nasional. The South African Constitution adalah salah satu contoh konstitusi yang menjabarkan secara eksplisit mengenai kedudukan hukum internasional sehingga mempreskripsi pengadilan untuk menggunakan hukum internasional secara langsung dalam wilayah domestik. Masalah muncul bagi negara yang tidak memiliki ketentuan eksplisit dalam konstitusi, seperti Indonesia, namun praktiknya terdapat penggunaan hukum internasional oleh agen negaranya. Artikel ini menawarkan teori internasionalisme untuk memberi dasar legitimasi bagi negara yang ingin patuh terhadap hukum internasional di saat konstitusi tidak memiliki ketentuan eksplisit yang mengaturnya. Teori ini dibangun dengan fondasi 2 teori yakni teori <em>transnational legal process </em>yang menitikberatkan pada bagaimana negara memperlakukan hukum internasional, dan teori <em>international constitution </em>yang berfokus pada bagaimana perlakuan hukum internasional tersebut bersifat konstitusional. </p><p> </p><p><em><strong>Abstract </strong></em></p><p>A constitution of a nation holds an important role to define international law before municipal law. The South African Constitution is an example of constitutions that explain explicitly the position of international law and prescribe its courts to observe international law in domestic zone. A crucial problem has risen in States which have no explicit provisions in their constitutions, like Indonesia, but the State agent acts of using international law are often found. This article offers internationalism theory in order to give the States a legitimacy to be comply with international law although the constitution lacks the explicit provisions. The theory contains 2 basic theories which are transnational legal process theory that stresses on how states treat international law properly; and international constitution theory that focuses on how the treatment becomes constitutional.</p>

scholarly journals SECURITY OF TENURE AT THE CROSSROAD OF CONFLICTING INTERESTS: THE BRUSSON FINANCE (PTY) LTD SAGA

Obiter ◽  
2014 ◽  
Vol 35 (2) ◽  
Author(s):  
CJ Tchawouo Mbiada
Keyword(s):  
South African ◽  
Informal Settlement ◽  
The State ◽  
Housing Assistance ◽  
Emergency Housing ◽  
Constitutional Right ◽  
The Government ◽  
South African Constitution ◽  
The Right ◽  
National Housing

Section 26 of the South African Constitution of 1996 makes provision for the right to have access to adequate housing (right to housing) for everyone. The section further enjoins the State to devise measures within the availability of its resources, to progressively realise this right. This has led to the adoption/enactment and implementation of a number of statutes and policies such as the Housing Act (107 of 1997), the Breaking New Ground of 2004, the Upgrading of Informal Settlement Programme of 2004, the National Housing Programme for Housing Assistance in Emergency Housing Circumstances of 2004, the National Housing Code of 2009 and the Outcome 8 Delivery Agreements: Sustainable Human Settlements and Improved Quality of Household Life of 2010. In passing, adopting and implementing these statutes and policies, the Government is discharging its obligations under section 26 of the Constitution to provide housing to all citizens. However, the effort of the state to fulfil its constitutional mandate to realize the right to housing is under severe threat following the Brusson Finance (Pty) Ltd matter which I refer to as “saga” (hereinafter “Brusson”). The Brusson saga refers to a number of people who were fraudulently deprived of their property (used a guarantee) as a result of a well-orchestrated scam offering credit facilities to those with bad credit records who could no longer receive credit facilities from financial institutions. As a result of such fraudulent deprivation of their property, two of the victims launched proceedings to recover their property. That case and the subsequent one analysed below, are used only to illustrate the Brusson mechanism and difficulties encountered by victims to get back their property. Furthermore, there are other decided cases. Some other cases are likely to be lodged, all in connection with Brusson, hence the word “saga”. These cases serve only as a point of departure for this note, and comments made thereto go beyond the scope of the judgments. These comments are extended to the Brusson scheme in general and should not in any way, be constrained or limited to the findings of the court. In other words, the comments are not against the findings of the courts. The Brusson saga resuscitates the debate of the horizontal application of the Bill of Rights to private disputes when a violation of a constitutional right may be invoked by either party. This necessitates the granting of remedies other than those provided for by the relevant statutes when such remedies would not suffice to satisfactory remedies to all the parties. Unless such remedies are granted to salvage the situation, many beneficiaries from the Brusson scam will be left homeless (if not already) in the near future, thereby curtailing Government effort to provide security of tenure and reduce homelessness countrywide. In order to understand the difficulties and complexities encountered by all parties (court, liquidators and the National Credit Regulator) to transfer properties back to the original home owners, I provide an in-depth mechanism of the Brusson’s scheme.

scholarly journals Apartheid and censorship

1994 ◽  
Vol 23 (3) ◽  
pp. 151-152
Author(s):  
Nadine Gordimer
Keyword(s):  
South African ◽  
The State ◽  
Control Board ◽  
The South ◽  
The Right

Written in 1972 following the South African government's plans to abolish the right of appeal against decisions brought by the State Publications Control Board

scholarly journals Apartheid and ‘The Primary Homeland’

1972 ◽  
Vol 1 (3-4) ◽  
pp. 25-30 ◽  
Author(s):  
Nadine Gordimer
Keyword(s):  
South Africa ◽  
South African ◽  
The State ◽  
Control Board ◽  
The South ◽  
The Right

This is the text of an address given earlier this year in South Africa which illustrates some of the problems connected with the South African government's plans to abolish the right of appeal against decisions brought by the State Publications Control Board.

scholarly journals Apartheid and Censorship

1994 ◽  
Vol 23 (3) ◽  
pp. 151-152
Author(s):  
Nadine Gordimer
Keyword(s):  
South African ◽  
The State ◽  
Control Board ◽  
The South ◽  
The Right

Written in 1972 following the South African government's plans to abolish the right of appeal against decisions brought by the State Publications Control Board

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 "Pay Now, Argue Later" Rule – Before and After the Tax Administration Act

2017 ◽  
Vol 16 (4) ◽  
pp. 124
Author(s):  
Carika Keulder
Keyword(s):  
South African ◽  
Value Added ◽  
Prima Facie ◽  
Tax Administration ◽  
Constitutional Court ◽  
The South ◽  
Value Added Tax ◽  
Significant Difference ◽  
The Right ◽  
Right Of Access

The South African Revenue Service (SARS) is entrusted with the duty of collecting tax on behalf of the South African government. In order to ensure effective and prompt collection of taxes, the payment of tax is not suspended pending an objection or an appeal, unless directed otherwise. This is also known as the "pay now, argue later" rule, and, for value-added tax purposes, is provided for in terms of section 36 of the Value-Added Tax Act 89 of 1991. The "pay now, argue later" rule in terms of section 36 of the Value-Added Tax Act prima facie infringes on a taxpayer's right of access to the courts as envisaged in section 34 of the Constitution. This is due to the fact that a taxpayer is obliged to pay tax before being afforded the opportunity to challenge the assessment in a court. In Metcash Trading Ltd v Commissioner for the South African Revenue Service, the Constitutional Court held the "pay now, argue later" rule in terms of section 36 to be constitutional. Olivier, however, does not agree with the court on several matters. Amongst the problems she indicates are that the taxpayer does not have access to the courts at the time the rule is invoked, and that the court did not consider the fact that there might be less invasive means available which would ensure that SARS's duty is balanced with the taxpayer's right of access to the courts. Guidelines were also issued which provide legal certainty regarding the factors SARS may consider in determining whether the payment of tax should be suspended or not. These guidelines also evoked some points of criticism. Since 1 October 2012, the "pay now, argue later" rule has been applied in terms of section 164 of the Tax Administration Act 28 of 2011. The question arises whether this provision addresses the problems identified in respect of section 36 of the Value-Added Tax Act and the guidelines. In comparing these sections, only slight differences emerged. The most significant difference is that section 164(6) of the Tax Administration Act stipulates that the enforcement of tax be suspended for a period when SARS is considering a request for suspension. Section 164(6) does not provide a solution to the problems identified regarding section 36 of the Value-Added Tax Act. It is even possible that this section could give rise to further problems. Therefore, the legislature has failed to address the imbalance between the duties of SARS and the right of a taxpayer to access the courts.

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