THE RIGHT TO REMAIN SILENT: A ONE­ EYED APPROACH TO TRUTH-SEEKING?

2015 ◽  
Vol 2 (1) ◽  
Author(s):  
Mabona Thomas Mokoena
Keyword(s):  
South Africa ◽  
South African ◽  
Crime Control ◽  
The United States ◽  
Constitutional Court ◽  
Human Right ◽  
Criminal Process ◽  
The Right ◽  
Source Of Information ◽  
Constitutional Analysis

The right to remain silent is one of the most important symbols of a fair trial in the accusatorial legal systems, to which South Africa also belongs. In certain countries, such as the United States and South Africa, this right is constitutionally entrenched as a fundamental human right, which virtually guarantees that adverse inferences cannot be drawn against an accused who fails to disclose pre-trial information. The accused is thereby excluded as a critical source of information during this stage of the proceedings. In essence, this means that the criminal process is compelled to close one eye to a valuable and crucial source of information. other jurisdictions within the accusatorial family, notably England and  Scotland,  have  introduced legislation aimed  at crime  control which essentially compels the accused to break his or her silence during the pre-trial stage of the criminal process. The very essence of the right to remain silent as a fundamental human right is proving problematic to the South African Constitutional Court when considering it within the context of the  limitation clause. It is argued, in this article, that the solution lies, first, in a substantive constitutional analysis of rights and,  secondly, in interpreting the right as a functional evidentiary principle with the aim of securing procedural fairness.

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 What has the Constitutional Court Given Us? Afriforum v University of the Free State 2018 (4) BCLR 387 (CC)

Obiter ◽  
2019 ◽  
Vol 40 (3) ◽  
Author(s):  
Mokgadi Margaret Mokgokong ◽  
Moses Retselisitsoe Phooko
Keyword(s):  
Higher Education ◽  
South Africa ◽  
South African ◽  
Further Education ◽  
The State ◽  
Constitutional Court ◽  
Official Language ◽  
National Party ◽  
The Right ◽  
To Receive

The history of South Africa is an unpleasant one. It was a society based on racial segregation with the promotion of Afrikaner culture and the Afrikaans language above all other languages. This can be traced to the architect of apartheid, the Afrikaner National Party, which introduced apartheid. Afrikaans-speaking people, through the Afrikaner National Party, dominated South Africa politically. Their language too, was promoted above all other languages. For example, Afrikaans enjoyed more privileges than other languages in that it was used for drafting laws, as the language of record in the courts and was also the only compulsory subject for learning. The apartheid government, through its racial policies, used the Afrikaans language as a tool to control Black South Africans in almost all spheres of life, including education, which had to be undertaken in Afrikaans. It is therefore no surprise that there were five universities that offered education mainly in Afrikaans. These are Stellenbosch University, University of the Free State, University of Pretoria, Potchefstroom University for Christian Higher Education (now North-West University) and Randse Afrikaanse Universiteit (now University of Johannesburg). The use of the Afrikaans language as an instrument for social control was not sustainable. The new constitutional dispensation ushered in an era wherein respect for fundamental human rights and freedoms is at the top of the South African agenda. The right to further education is constitutionally recognised in section 29(1)(b) of the Constitution of the Republic of South Africa, 1996. Section 29(2) of the Constitution further recognises and embraces the diversity of South African society and provides that “everyone has the right to receive education in the official language or languages of their choice in public education institutions where that education is reasonably practicable” (s 29(b) of the Constitution). The State has an obligation to take reasonable measures on a progressive basis to ensure that further education is available and accessible (s 29(1)(b) of the Constitution). In ensuring “effective access to and implementation” of the right to further education, It is notable that, in its endeavour to make further education available and accessible, the State is required to consider several factors such as language policies. In an effort to facilitate the realisation of the right to further education, the Higher Education Act (101 of 1997) was enacted in order inter alia to “redress past discrimination and ensure representivity and equal access to higher education institutions” (preamble to the Act).In the UFS case (CC), the Constitutional Court applied section 29(1)(b) of the Constitution, which provides for the right to further education and the “right to receive education in the official language or languages of [one’s] choice”. This note centres on this decision and seeks to critically discuss and analyse both the majority and minority decisions of the Constitutional Court. The question presented is whether the Constitutional Court has given the public a solution to the issue surrounding the use of either Afrikaans or English as a language medium of instruction in the higher education sector and what the effect of this has been on the development of other languages. The case note is divided into five sections. The facts of the case, the issues put before the court for consideration and the finding of the court are discussed in part 2. Part 3 contains an analysis of the minority and majority judgments. Part 4 considers whether the court has given us any solutions. Part 5 sets out the authors’ recommendations and their conclusions.

Power to the People? Right of Access to Electricity in South Africa

Politeia ◽  
2019 ◽  
Vol 38 (2) ◽  
Author(s):  
Khaled Qasaymeh ◽  
Jo-Ansie Karina Van Wyk
Keyword(s):  
South Africa ◽  
Public Policy ◽  
Economic Development ◽  
South African ◽  
Special Focus ◽  
The South ◽  
Human Right ◽  
Socio Economic Development ◽  
The Right ◽  
Right Of Access

The provision and distribution of and access to electricity are not only technical and economic matters. Access to electricity is a highly political and ideological issue and has consequences for public policy and human development. Since 2000, South Africa has experienced power outages (euphemistically called load-shedding) and the country has not kept up with increased electricity and socio-economic demands. Globally, access to electricity is increasingly regarded as a basic human right and an important contributor to socio-economic development. However, the position towards and the practice regarding access to electricity by the post-apartheid South African government are contradictory. Although both the South African Bill of Rights and the Constitution of the Republic of South Africa of 1996 refer to fundamental human rights, the matter of access to electricity as a human right is not clearly spelled out in these documents. This article outlines international and African norms in respect of the right of access to electricity in the context of the international socio-economic development debate. It proceeds to examine the South African context, policies, legislation and constitutional court judgments in respect of socio-economic development with a special focus on access to electricity—a matter which is closely linked to political, public policy and development issues such as housing and the environment in South Africa. The article calls for the right of access to electricity to be declared a basic human right and to be legislated as such in the South African legal regime.

scholarly journals Religious Freedom and Equality as Celebration of Difference: A Significant Development in Recent South African Constitutional Case-Law

2017 ◽  
Vol 12 (4) ◽  
pp. 9 ◽  
Author(s):  
Lourens Du Plessis
Keyword(s):  
South Africa ◽  
South African ◽  
Significant Contribution ◽  
Case Law ◽  
Constitutional Court ◽  
Significant Development ◽  
Cultural Rights ◽  
Kwazulu Natal ◽  
Minority Religion ◽  
The Right

This contribution focuses on the way in which the South African Constitutional Court has, since 1997, been dealing with the (seemingly) eccentric claims of (assumedly) idiosyncratic 'religious Others'. Developments in this regard have, for the time being at least, culminated in the Constitutional Court's landmark judgment in MEC for Education: KwaZulu Natal v Pillay 2008 (2) BCLR 99 (CC), 2008 (1) SA 474 (CC)(hereafter Pillay). Constitutional Court judgments since 1997 manifesting the adjudication of such unconventional claims are assessed, eventually getting to Pillay as benchmark. This remarkable judgment, dealing with a deceptively mundane issue, has played a considerable role in fleshing out a jurisprudence of difference, putting an adherent of a vulnerable, minority religion in the right. This is not just a high point in the adjudication of constitutional entitlements of the religious (and cultural) Other in South Africa, but also a significant contribution to the growth of a jurisprudence sensitive to the predicaments and constitutional entitlements of unconventional, 'non-mainstream' claimants of religious (and cultural) rights. Finally Pillay illustrates that the constitutional guarantee of the right to freedom of religion, conscience, belief and opinion (entrenched in section 15(1) of the Constitution of Republic of South Africa 1996) can be crucially dependent upon due effect being given to the proscription of unfair discrimination on the grounds of religion, conscience, belief and opinion elsewhere (namely in section 9(3)) of the Constitution.

scholarly journals DEFINING THE RIGHT TO STRIKE: A COMPARATIVE ANALYSIS OF INTERNATIONAL LABOUR ORGANIZATION STANDARDS AND SOUTH AFRICAN LAW

Obiter ◽  
2021 ◽  
Vol 33 (2) ◽  
Author(s):  
Mohamed Alli Chicktay
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
The Other ◽  
International Labour Organization ◽  
International Labour Organisation ◽  
Human Right ◽  
South African Constitution ◽  
The Right ◽  
Do So

The right to strike is a fundamental human right recognized in international law and the South African Constitution. If “strike” is defined too narrowly it would deny protection that would normally be given to employees who would otherwise be participating in a strike. On the other hand if “strike” were defined too broadly it would categorize as strike action that would not normally be regarded as a strike: thus subjecting these employees to serious consequences that result from participating in an unprotected strike. These may include dismissals, interdicts and claims for compensation. South Africa has a constitutional obligation to comply with international law when interpreting human rights. The purpose of this article is to determine whether South African law defines “strike” in compliance with International Labour Organisation standards and to make suggestions for amendments to the lawwhere it fails to do so.

scholarly journals TRANSFORMATIVE LEGAL EDUCATION IN THE SOUTH AFRICAN CONTEXT

2020 ◽  
Author(s):  
Ropafadzo Maphosa ◽  
Nomathole Nhlapo
Keyword(s):  
South Africa ◽  
South African ◽  
Tertiary Education ◽  
Legal Education ◽  
Further Education ◽  
Constitutional Court ◽  
The South ◽  
Colonial Era ◽  
The Republic ◽  
The Right

The late former Justice of the Constitutional Court of the Republic of South Africa, Pius Langa, opined that a truly transformative South Africa requires a new approach that places the Constitutional dream at the very heart of legal education. This view is consistent with section 29 of the Constitution which guarantees everyone the right to further education. However, the state has failed to make further (or tertiary) education progressively available and accessible. We believe this can be attributed to the fact that the South African legal education is still riddled with inequalities from the apartheid/colonial era. This article argues that decolonisation of legal education will begin when teachers of the law become cognizant of the reality that their teaching models will shape the future legal landscape, thus it is imperative for law schools to birth law graduates with an unwavering appreciation and willingness to implement constitutional values, such as human dignity and equality in practice. The advancement of these values is enhanced by the Africanisation of legal education which will ultimately legitimize the legal order so that it mirrors the society in which it exists.

From the classroom to the courtroom: litigating education rights in South Africa

2018 ◽  
pp. 143-168
Author(s):  
Jason Brickhill ◽  
Yana van Leeve
Keyword(s):  
South Africa ◽  
Public Schools ◽  
South African ◽  
Basic Education ◽  
Constitutional Court ◽  
Equal Education ◽  
The Right ◽  
Second Category ◽  
School Governing Bodies ◽  
Specific Education

This chapter focuses on two streams of education litigation concerning public schools in South Africa: first, cases concerning contestation over the power to formulate policy for schools in the education system established in the new democratic era; and, second, cases seeking to compel the state to provide specific education inputs. In respect of the power to determine key school policies, the South African Constitutional Court has sought to strike a balance between recognising the democratic and community-level legitimacy of school governing bodies, on one hand, and the need to empower government to act in the interests of all students and to promote equal education, on the other. In the second category of cases, the courts incrementally developed the content of the right to a basic education in section 29(1)(a).

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 Die invloed van taalhoudings op onderrigmediumkeuse in Suid-Afrika

Literator ◽  
2000 ◽  
Vol 21 (3) ◽  
pp. 37-58 ◽  
Author(s):  
C. De Wet
Keyword(s):  
South Africa ◽  
South African ◽  
Language Attitudes ◽  
Mother Tongue ◽  
Human Right ◽  
Political Empowerment ◽  
African Languages ◽  
Learning And Teaching ◽  
The Right ◽  
The Masses

The influence of language attitudes on the choice of the medium of instruction in South Africa The South African Constitution (Act 108 of 1996) recognises language as a basic human right and emphasises the right of choice of every individual with regard to the language of learning and teaching (LOLT). In exercising their democratic language choice, the majority of South African learners and their parents reject their right to mother-tongue education and disregard research findings that emphasise the benefits of mother-tongue instruction. From a study of subject-related literature it has become clear that the masses in South Africa believe that a knowledge of English is the key to economic and political empowerment. Against the background of these findings, the article reports on an empirical study on the language attitudes of undergraduate Education and B.Ed. students at the Bloemfontein and Queenstown campuses of the University of the Free State. The study confirms the findings of the subject-related study to a large extent, namely that English is seen as the key to economic and political empowerment. The opposite is, however, proven by literacy and poverty figures, as well as by studies on blacks’ proficiency in English. Proceeding from the economic, political and educational realities, the article offers a few suggestions for the development of African languages as LOLT.

scholarly journals ACCESS TO SOCIAL SECURITY FOR NON-CITIZENS: AN INTERNATIONAL, SOUTH AFRICAN AND EUROPEAN VIEW

2011 ◽  
Author(s):  
Taryn Lee Vos
Keyword(s):  
South Africa ◽  
Social Security ◽  
South African ◽  
Political Stability ◽  
Constitutional Court ◽  
The South ◽  
Foreign Nationals ◽  
European Approach ◽  
The Republic ◽  
The Right

South Africa has become a magnet to a larger group of foreign migrants than the global average. This is due to the fact that it is a front-runner, economically speaking, in Sub-Sahara Africa with a reputation of political stability. The South African Constitution is the supreme law of the Republic, to which all other law is subject. South Africa’s constitutional framework, coupled with immigration legislation and policies, aim to promote the rights enshrined in the Bill of Rights for all individuals living within the borders of the Republic. While certain rights are expressly reserved for citizens only and are largely of a civil or political nature, the remaining rights are those that ‘everyone’, including foreign nationals, may enjoy. Non-citizens within the borders of the Republic receive, inter alia, the protection of South Africa’s basic constitutional values; in particular the right to equality, human dignity and freedom. Socio-economic rights, subject to the limitations clause in section 36 of the Constitution, are also made available to everyone. This includes both citizens and foreign nationals. These rights can be found in section 25, 26, 27, 28 and 29 of the Constitution and relate to issues of access to land, housing, health care, food, social security and education. The focus of this paper will be the right of access to social security for non-citizens, particularly migrants, in South Africa. Who falls within the scope of the term ‘everyone’ as found in section 27 of the Constitution? The international perspective on the issue of social exclusion of non-citizens from accessing social security benefits is briefly dealt with, followed by a discussion of the South African perspective on the matter. The approach of the South African Constitutional Court in respect of the protection of the rights of noncitizens will then be discussed. The European approach to the matter, including the approach of European courts, will then be examined. The concluding paragraphs entail an evaluation of the improvements that can be made to the South African social security system as inspired by the European approach.

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