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.

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.

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.

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 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.

scholarly journals The South African constitutional Court and the Rule of Law: The Masethla Judgment, A Cause for Concern

2017 ◽  
Vol 13 (3) ◽  
pp. 467
Author(s):  
Rósaan Krüger
Keyword(s):  
South Africa ◽  
South African ◽  
Rule Of Law ◽  
Procedural Fairness ◽  
Constitutional Court ◽  
The South ◽  
Public Power ◽  
The Rule Of Law ◽  
The Republic

The rule of law as a foundational constitutional value constrains the exercise of public power but the precise limits of the constraints it sets are not well defined. In Masethla v President of the Republic of South Africa,[1] the majority of the Constitutional Court opted for an interpretation of this value that frees the President from adherence to the demands of procedural fairness when exercising certain constitutional powers. This note will investigate the soundness of that interpretation against the background of theoretical expositions of the rule of law and earlier Constitutional Court judgments.[1]      2008 1 BCLR 1 (CC).

scholarly journals The Compliance of the South African Social Security System with the International Covenant on Economic, Social and Cultural Rights

Obiter ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 850-870
Author(s):  
Yvette Basson
Keyword(s):  
South Africa ◽  
Social Security ◽  
South African ◽  
Social Security System ◽  
Security System ◽  
The South ◽  
Cultural Rights ◽  
The Right

The ratification of the International Covenant on Economic, Social and Cultural Rights by South Africa has resulted in the provisions thereof becoming binding on the South African legislature. The right to social security is entrenched in the ICESCR, which provides for the elements of a social security system that must be complied with by states. This article sets out what is required of states in terms of the right to social security in the ICESCR by way of crystallising the elements of a social security system. Thereafter, the South Africa social security system is compared to these elements to determine whether there is compliance with the right to social security in the ICESCR.

scholarly journals The Use of Force in Effecting Arrest in South Africa and the 2010 Bill: a Step in the Right Direction

2017 ◽  
Vol 14 (1) ◽  
pp. 137
Author(s):  
Tharien Van der Walt
Keyword(s):  
South Africa ◽  
South African ◽  
Use Of Force ◽  
Constitutional Court ◽  
The South ◽  
South African Police Service ◽  
International Policies ◽  
The Supreme Court ◽  
South African Police ◽  
The Right

In South Africa the use of force in effecting arrest is statutorily governed by section 49 of the Criminal Procedure Act 51 of 1977.  The inception of the Constitution brought about a dramatic change in South African law in this regard.  During 2001 and 2002 the two highest courts in the country had to decide on the constitutionality of sections 49(1) and 49(2) respectively.  The Supreme Court of Appeal in Govender v Minister of Safety and Security 2001 2 SACR 197 (SCA)  did not declare section 49(1) unconstitutional but found it had to be interpreted restrictively ("read down") to survive constitutional scrutiny.  The Constitutional Court on the other hand confirmed the unconstitutionality of section 49(2) in S v Walters 2002 2 SACR 105 (CC) and the section was declared invalid.  By then (as early as 1998) the legislature had already promulgated an amendment to section 49, but the amendment came into operation only in 2003 after section 49 had undergone intensive constitutional scrutiny.  Legal scholars and others raised serious objections against the amendment – some were even of the opinion that it created a "right to flee" and that the rights of perpetrators were protected to the detriment of law-abiding citizens.  The Department of Justice and Constitutional Development in 2010 drafted an Amendment Bill which was subsequently approved in Parliament.  This paper discusses and concludes on: the developments over the last years in the South African law with regard to the use of force in effecting arrest by the South African Police Service (SAPS); international policies and guidelines of the police in this regard; and the application of the provisions of the Amendment Bill in practice and the possible pitfalls in the application of the latter. 

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.

Safeguarding the Republic? The South African Police Service, Legitimacy and the Tribulations of Policing a Violent Democracy

2021 ◽  
Vol 56 (1) ◽  
pp. 92-108
Author(s):  
Guy Lamb
Keyword(s):  
South Africa ◽  
South African ◽  
Public Trust ◽  
The South ◽  
Police Service ◽  
South African Police Service ◽  
The Republic ◽  
South African Police ◽  
High Crime ◽  
Excessive Use Of Force

Since 1994 the South African Police Service (SAPS) has undertaken various efforts to build legitimacy in South Africa. Extensive community policing resources have been made available, and a hybrid community-oriented programme (sector policing) has been pursued. Nevertheless, public opinion data has shown that there are low levels of public trust in the police. Using Goldsmith’s framework of trust-diminishing police behaviours, this article suggests that indifference, a lack of professionalism, incompetence and corruption on the part of the police, particularly in high-crime areas, have eroded public trust in the SAPS. Furthermore, in an effort to maintain order, reduce crime and assert the authority of the state, the police have adopted militaristic strategies and practices, which have contributed to numerous cases of excessive use of force, which has consequently weakened police legitimacy in South Africa

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.

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