scholarly journals Rhodes University v Student Representative Council of Rhodes University: The constitutionality of interdicting non-violent disruptive protest

2017 ◽  
pp. 93-102
Author(s):  
Safura Abdool Karim ◽  
Catherine Kruyer
Keyword(s):  
South Africa ◽  
Eastern Cape ◽  
Student Protests ◽  
High Court ◽  
Chilling Effect ◽  
Constitutional Right ◽  
The Republic ◽  
The Right

Section 17 of the Constitution of the Republic of South Africa, 1996 enshrines the right to assemble, peacefully and unarmed, and the Regulation of Gatherings Act 205 of 1993 enables the exercise of this right peacefully and with due regard to the rights of others. The recent student protests across South Africa have occasioned litigation seeking to interdict protest action, which the universities claim is unlawful. Overly broad interdicts, which interdict lawful protest action, violate the constitutional right to assembly and have a chilling effect on protests. In a decision of the High Court of South Africa, Eastern Cape Division, Grahamstown, a final interdict was granted interdicting two individuals from, among other things, disrupting lectures and tutorials at Rhodes University and from inciting such disruption. In this note, the constitutionality of interdicting non-violent disruptive protest is discussed and analysed, using Rhodes University v Student Representative Council of Rhodes University and Others (1937/2016) [2016] ZAECGHC 141.

scholarly journals A legal analysis in context: The Regulation of Gatherings Act – a hindrance to the right to protest?

2017 ◽  
pp. 21-32
Author(s):  
Jameelah Omar
Keyword(s):  
South Africa ◽  
Western Cape ◽  
Legal Analysis ◽  
Constitutional Democracy ◽  
High Court ◽  
The Past ◽  
The Social ◽  
Sharp Point ◽  
Constitutional Right ◽  
The Right

  South Africa has seen a groundswell of protests in the past few years. The number of arrests during protest action has likewise increased. In June 2017 the Social Justice Coalition (SJC) challenged the constitutionality of the Regulation of Gatherings Act 205 of 1993 in the Western Cape High Court. This was an appeal from the magistrates’ court in which 21 members of the SJC were convicted of contravening the Regulation of Gatherings Act for failing to provide notice. This is the first court challenge to the constitutionality of the Regulation of Gatherings Act. Although the challenge was brought on restricted grounds, it highlights the Regulation of Gatherings Act as a sharp point of controversy. This article will consider the regulatory provisions and the extent to which they restrict the constitutional right to protest, particularly in light of the important role played by protest in South Africa’s constitutional democracy.

scholarly journals A Consideration of Sections 249, 250 and 259 of the Proposed Third Amendment Bill to the Children’s Act in Light of the Best Interests Principle

Obiter ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 934-947
Author(s):  
Glynis van der Walt
Keyword(s):  
South Africa ◽  
Family Care ◽  
Best Interests ◽  
Current Status ◽  
Adoption Process ◽  
Intercountry Adoption ◽  
Alternative Care ◽  
Constitutional Right ◽  
The Republic ◽  
The Right

With the promulgation of the Constitution in 1996, national legislative recognition was given to the principle that a child’s best interests are of paramount importance in every matter concerning the child (s 28(2) of the Constitution of the Republic of South Africa, 1996). Section 28(1)(b) expressly provides for the right of a child to family care, parental care or appropriate alternative care. Based on economic and other factors, developing countries like South Africa experience difficulties in meeting the constitutional right of a child to have his or her best interests met and the placement of an orphaned or abandoned child (OAC) in appropriate alternative care is no exception. In light hereof, the current note considers whether the proposed amendments to the Children’s Act (CA, Act 38 of 2005 as amended) introduced by the Third Amendment Bill (GG 42005 of 2019-02-25), with particular reference to sections 249, 250 and 259 comply with this constitutional right. These three sections are of particular relevance to placing a child in permanent care in the form of both national and intercountry adoption. In particular, section 249 makes provision that no consideration may be given in respect to adoption, section 250 limits the persons who are allowed to provide adoption services and section 259 makes provision for the accreditation for the provision of intercountry adoption services. All three sections are relevant to the adoption process of an OAC. Alternative care options available and the basis for determining which placement decided upon is deemed to be the most appropriate for the child concerned, are considered in light of the proposed amendments. A consideration of the current status of the child welfare system in South Africa as well as the statistics of the many children in need of alternative care, serves to provide a background in determining whether the proposed amendments meet and further the vulnerable OAC’s best interests.

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.

scholarly journals Dignity, religion and freedom of expression in South Africa

2011 ◽  
Vol 67 (1) ◽  
Author(s):  
Jacobus C.W. Van Rooyen
Keyword(s):  
South Africa ◽  
South African ◽  
Freedom Of Expression ◽  
Sense Of Self ◽  
Point Of View ◽  
National Pride ◽  
Form Part ◽  
Self Worth ◽  
Constitutional Right ◽  
The Republic

The issue that this article dealt with is whether, in South African law, speech that infringes upon the religious feelings of an individual is protected by the dignity clause in the Constitution of the Republic of South Africa. The Constitution, as well as the Broadcasting Code, prohibits language that advocates hatred, inter alia, based on religion and that constitutes incitement to cause harm. Dignity, which is a central Constitutional right, relates to the sense of self worth which a person has. A Court has held that religious feelings, national pride and language do not form part of dignity, for purposes of protection in law. The Broadcasting Complaints Commission has, similarly, decided that a point of view seriously derogatory of ‘Calvinistic people’ blaming (some of) them as being hypocritical and even acting criminally is not protected by dignity. It would have to be accompanied by the advocacy of hatred as defined previously. The author, however, pointed out that on occasion different facts might found a finding in law that religion is so closely connected to dignity, that it will indeed be regarded as part thereof.

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.

Case Note: The interface between customary rights and environmental legislation: Lessons from Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (SCA) 2018

2020 ◽  
Vol 26 ◽  
pp. 134-160
Author(s):  
Alexander Paterson
Keyword(s):  
South Africa ◽  
Natural Resources ◽  
Protected Area ◽  
Marine Protected Area ◽  
Customary Law ◽  
Constitutional Court ◽  
Eastern Cape ◽  
Customary Rights ◽  
The Republic ◽  
Law And Legislation

The Constitution of the Republic of South Africa, 1996, recognises customary law as an independent and original source of law, subject to the Constitution itself and legislation that specifically deals with customary law. As recognised by the Constitutional Court in Alexkor Ltd vs the Richtersveld Community (2004), customary law, as an independent source of law, may give rise to rights including rights to access and use natural resources. Rights to access and use natural resources are often comprehensively regulated by legislation. Conflicts between customary law and legislation relevant to natural resources may arise, as evidenced in the case of Mr Gongqose, who along with several other community members were caught fishing in the Dwesa-Cwebe Marine Protected Area situated off the Eastern Cape coastline. Notwithstanding their claims to be exercising their customary rights to fish in the area, they were convicted in the Magistrate’s Court for certain offences in terms of the Marine Living Resources Act (1998), under which the marine protected area had been established. Their appeal to the High Court proved unsuccessful and the Supreme Court of Appeal was tasked with considering the relationship between their customary rights to fish and legislation purportedly extinguishing these rights. The SCA’s judgment in Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (2018) is the first of its kind in South Africa to consider the extinguishment of customary rights to access and use natural resources through post-constitutional legislation. This note critically considers the guidance the SCA provided on proving the existence of customary rights to access and use natural resources, and the manner in which they may be extinguished through legislation. While the focus is on marine living resources, the lessons emerging from this case are relevant to other natural resource sectors.

Operational manifestations of institutional dysfunction in post-apartheid South Africa

Water Policy ◽  
2016 ◽  
Vol 18 (4) ◽  
pp. 998-1014 ◽  
Author(s):  
Jai K. Clifford-Holmes ◽  
Carolyn G. Palmer ◽  
Chris J. de Wet ◽  
Jill H. Slinger
Keyword(s):  
South Africa ◽  
Water Resource Management ◽  
Law Reform ◽  
Reform Process ◽  
Eastern Cape ◽  
Transdisciplinary Approach ◽  
Fine Grained ◽  
The Republic ◽  
Effective Water

At the centre of the water law reform process initiated by the first democratic government of the Republic of South Africa (RSA) lay the challenge of transforming away from apartheid water injustices. Reform culminated in the promulgation of new legislation, regarded internationally as ambitious and forward-thinking legislation reflective of the broad aims of integrated water resource management (IWRM). However, implementation of this legislation has been challenging. This paper analyses institutional dysfunction in water management in the Sundays River Valley Municipality (Eastern Cape Province, RSA). A transdisciplinary approach is taken in addressing the failure of national law and policy to enable the delivery of effective water services in post-apartheid RSA. A case study is used to explore interventions to promote effective water supply, locating these interventions and policies within the legislative structures and frameworks governing the water sector. We suggest that fine-grained institutional analysis together with learning from persistent iterative, adaptive practice, with principled goals intact, offers a pragmatic and achievable alternative to grand-scale policy change.

scholarly journals KONSTRUKSI REALITAS PEMBUBARAN FRONT PEMBELA ISLAM DAN DEMOKRASI

2021 ◽  
Vol 20 (1) ◽  
Author(s):  
Rina Sovianti
Keyword(s):  
Social Life ◽  
Community Organization ◽  
Treatment Recommendation ◽  
Development Communication ◽  
News Stories ◽  
News Source ◽  
The Difference ◽  
Constitutional Right ◽  
The Republic ◽  
The Right

This study aims to know the direction of democracy and know the framing of news in Republika.com and Kompas.com, as well as the implications of the dissolution of FPI to development communication. The uniqueness of this research, FPI is a mass organization with a large number of masses but does not have an organizational license. This study uses the paradigm of constructionism, which considers the reality of social life is not a natural reality. Using the Robert N. Entman method to frame news stories coming from Republika.com and Kompas.com. The difference in framing in Kompas.com media and Republika.com is the news source. Republika.com choose a news source from an Islamic background, while Kompas.com choose a news source who is competent in his field is not based on his religion. In the first framing analysis, the level of problem identification and causal interpretation, the two online media have similarities. However, in terms of moral evaluation and treatment recommendation both media have differences. In Republika.com researchers analyzed treatment recommendations is the rejection of FPI activities. FPI has no legal standing. Kompas.com, his treatment recommendation consideration of the dissolution of FPI is to maintain the existence of ideology and basic consensus of the state of Pancasila, the 1945 Constitution, the integrity of the Republic of Indonesia, and Bhinneka Tunggal Ika. Basically, the right to organize is a constitutional right. If there is no fundamental reason, the dissolution of a community organization should not exist. However, FPI is an organization that offers intolerance in the religious field. 

scholarly journals Modderklip Revisited: Can Courts Compel the State to Expropriate Property where the Eviction of Unlawful Occupiers is not Just and Equitable?

2018 ◽  
Vol 21 ◽  
pp. 1-21
Author(s):  
Jackie Dugard
Keyword(s):  
South Africa ◽  
Separation Of Powers ◽  
The State ◽  
Court Case ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Western Cape ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The Republic

This article examines whether, to give effect to the section 26 constitutional right to adequate housing, courts can (or should) compel the state to expropriate property in instances when it is not just and equitable to evict unlawful occupiers from privately-owned land (unfeasible eviction). This question was first raised in the Modderklip case, where both the Supreme Court of Appeal (Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 3 All SA 169 (SCA)) and Constitutional Court (President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)). dodged the question, opting instead to award constitutional damages to the property owner for the long-term occupation of its property by unlawful occupiers. It is clear from cases such as Ekurhuleni Municipality v Dada 2009 4 SA 463 (SCA), that, mindful of separation of powers concerns, courts have until very recently been unwilling to order the state to expropriate property in such circumstances. At the same time, it is increasingly evident that the state has failed to fulfil its constitutional obligations to provide alternative accommodation for poor communities. In this context, this article argues that there is a growing need for the judiciary to consider, as part of its role to craft effective remedies for constitutional rights violations, the issue of judicial expropriation. It does so, first, through an analysis of the relevant jurisprudence on evictions sought by private landowners and, second, through an in-depth engagement of the recent Western Cape High Court case, Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi & Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupying Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC).    

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