scholarly journals INTRODUCING DECONSTRUCTIVE INTERSECTIONALITY: THE GENERAL JURISPRUDENTIAL RAGE AGAINST RAINBOW THEORY

2015 ◽  
Author(s):  
Tamryn Gorman
Keyword(s):  
South Africa ◽  
South African ◽  
The Other ◽  
Constitutional Court ◽  
Court Cases ◽  
Substantive Equality ◽  
Constant Tension ◽  
Formal Equality ◽  
The One ◽  
Constitutional Adjudication

Despite South Africa’s post-modern constitutional dispensation which, at first glance, seems to celebrate and entrench substantive equality — various judgements have been passed by the Constitutional Court where the Constitution was interpreted through a formal equalitarian lens. On the one hand, substantive equality recognises and celebrates our diversity and differences whereas formal equality, on the other hand, obsesses with the idea of sameness. This constant tension between substantive and formal equality is aptly portrayed by the term ‘rainbow jurisprudence’. This term was coined by Alfred Cockrell to explain a quasi-theory depicted by the newly born South African constitutional adjudication which was lacking in substantive reasoning (which I equate to substantive equality) and the absence of a rigorous jurisprudence. He goes so far as to assimilate the finding of genuine substantive reasoning within these judgements to the possibility of touching a rainbow — a mythical task which, although alluring, seems impossible. Thus, I have identified the problem that South Africa is still submerged in rainbow jurisprudence. This can be seen through various court cases that will be discussed below, ranging from cases that were clearly decided from a formal equalitarian perspective to those which depict a wolf in sheep’s clothing seemingly substantive judgements disguising the formal equality lurking beneath.

South African Economy: No Easy Life Ahead

2015 ◽  
pp. 104-116
Author(s):  
P. Mozias
Keyword(s):  
Economic Growth ◽  
South Africa ◽  
Interest Rates ◽  
South African ◽  
Trade Unions ◽  
Current Account Deficit ◽  
National Development ◽  
Capital Inflows ◽  
The Other ◽  
The One

South African rand depreciated in 2013–2014 under the influence of a number of factors. Internationally, its weakness was associated with the capital outflow from all emerging markets as a result of QE’s tapering in the US. Domestically, rand plummeted because of the deterioration of the macroeconomic stance of South Africa itself: economic growth stalled and current account deficit widened again. Consumer spending was restrained with the high household indebtedness, investment climate worsened with the wave of bloody strikes, and net export was still prone to J-curve effect despite the degree of the devaluation happened. But, in its turn, those problems are a mere reflection of the deep institutional misbalances inherent to the very model of the national economy. Saving rate is too low in South Africa. This leads not only to an insufficient investment, but also to trade deficits and overdependence on speculative capital inflows. Extremely high unemployment means that the country’s economic potential is substantially underutilized. Joblessness is generated, first and foremost, by the dualistic structure of the national entrepreneurship. Basic wages are being formed by way of a bargaining between big public and semi state companies, on the one hand, and trade unions associated with the ruling party, on the other. Such a system is biased towards protection of vested interests of those who earn money in capital-intensive industries. At the same time, these rates of wages are prohibitively high for a small business; so far private companies tend to avoid job creation. A new impulse to economic development is likely to emerge only through the government’s efforts to mitigate disproportions and to pursue an active industrial policy. National Development Plan adopted in 2012 is a practical step in that direction. But the growth of public investment is constrained by a necessity of fiscal austerity; as a result, the budget deficit remained too large in recent years. South African Reserve Bank will have to choose between a stimulation of economic growth with low interest rates, on the one hand, and a support of rand by tightening of monetary policy, on the other. This dilemma will greatly influence prices of securities and yields at South African financial markets.

The Resilient Constitution

2021 ◽  
pp. 277-309
Author(s):  
David Dyzenhaus ◽  
Alma Diamond
Keyword(s):  
South Africa ◽  
South African ◽  
Transitional Justice ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Extreme Pressure ◽  
The Face ◽  
Justice Process ◽  
The One

This chapter evaluates the so called 'transitional constitution' of South Africa and the 'permanent constitution' of Colombia. Through a comparative approach, it contends that constitutions are better understood in terms of their resilience rather than either being transitional or permanent, and that a 'resilient constitution' is the one capable of springing back even after being subjected to extreme pressure, as long as leaders maintain their commitment to governing within the limits of the law. In this sense, the differences between the Colombian transitional justice and the South African case do not stem primarily from the 'permanence' of its Constitution, but rather from the difficulties and tensions inherent to any transitional justice process, because it derives from some of the very rights it is designed to promote. The chapter then details how the jurisprudence of the Colombian Constitutional Court on transitional matters can be understood as having moved from an understanding of the Constitution as permanent, to one of resilience that does not represent a new power grabbed by the Court. Rather than that, it signals an understanding of the role of the Court in maintaining a constitutional order even in the face of existential threats to it.

scholarly journals I am/am I an African? A relational reading of Diaspora and Identity in South African Fiction by J.U. Jacobs

Literator ◽  
2017 ◽  
Vol 38 (1) ◽  
Author(s):  
Miki Flockemann
Keyword(s):  
South Africa ◽  
South African ◽  
Performing Arts ◽  
The Other ◽  
Important Addition ◽  
Recent Trends ◽  
The One ◽  
New Generation ◽  
Globalising World ◽  
Comprehensive Study

The publication of Diaspora and Identity in South African Fiction (2016) by J.U. Jacobs is a timely intervention, in that it is the first comprehensive study of South African fiction to sustain the argument that South African writing is always already diasporic. Although Jacobs’ diasporic framework undoubtedly serves as an important addition to the recent trends identified by literary scholars, his focus on 12 well-established writers (including Coetzee, Wicomb, Mda, Gordimer and Ndebele), highlights some of the gaps that need to be filled in a study of this kind. For instance, what about the younger generation of writers, including those from elsewhere in Africa who are writing about living in South Africa? How do they deal with what has been termed the new diaspora, with debates around Afropolitanism and the experiences of internal, inter-continental and trans-continental migrancy in an increasingly globalising world? Despite these shortcomings, Jacobs’ premise about the inevitably diasporic identifications that are narrativised in the 20 novels analysed here can provide a useful foundation for further scholarship on how the diasporic condition informs and is mediated in other texts. These, as I will show, range from works by a new generation of emerging writers on the one hand to the performing arts on the other hand.

Understanding one’s rights when arrested and detained: An assessment of language barriers that affect comprehension

2021 ◽  
Vol 34 (1) ◽  
pp. 1-30
Author(s):  
Terrence R Carney
Keyword(s):  
South Africa ◽  
South African ◽  
The Other ◽  
University Graduates ◽  
Judicial Process ◽  
South Africans ◽  
South African Police Service ◽  
South African Police ◽  
The One ◽  
Readability Level

Difficult text formulations, on the one hand, as well as poor linguistic skills and comprehension on the other, can severely hamper the communication effort of basic human rights during the judicial process. The rights entrenched in s 35 of the Constitution of South Africa (Act 108 of 1996), as they apply to individuals who are arrested, detained and accused, and read out by a member of the local South African Police Service (SAPS), are written in a legal register that can be too difficult for additional language speakers to understand. This begs the question of whether arrested, detained and accused individuals are fully aware of their rights and whether they can exercise these rights if they do not understand the language that expresses them. This article appraises the potential comprehensibility of the notice of rights (SAPS 14A), as provided to arrested, detained and accused individuals by the SAPS. The researcher’s assessments indicate that the text is pitched at an English readability level suited to university graduates and could be too difficult for South Africans with limited schooling and linguistic abilities to comprehend. A revision of SAPS 14A is offered as an illustration of a possible improvement to increase readability and, subsequently, better access to the mentioned rights.

scholarly journals Determining the True Reason for an Alleged Section 187(1)(c) Dismissal: A Discussion of National Union of Metalworkers of South Africa v Aveng Trident Steel (a Division of Aveng Africa (Pty) Ltd) (2021) 42 ILJ 67 (CC)

2021 ◽  
Vol 24 ◽  
pp. 1-20
Author(s):  
Kamalesh Newaj
Keyword(s):  
South Africa ◽  
Case Note ◽  
The Other ◽  
Constitutional Court ◽  
National Union ◽  
Test Set ◽  
Labour Relations ◽  
Unfair Dismissal ◽  
Chemical Workers ◽  
The One

On 27 October 2020, the Constitutional Court handed down judgment in National Union of Metalworkers of South Africa v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) 2021 42 ILJ 67 (CC). Following the judgment, it is now commonplace that the amendment to section 187(1)(c) of the Labour Relations Act, 1995 does not preclude an employer from dismissing employees for a permissible reason, such as its operational requirements, should they refuse to accept a demand. The court confirmed that in cases such as this where they are faced with two opposing reasons for the dismissal, an impermissible reason on the one hand and a permissible reason on the other, an enquiry must be conducted into what the true reason for the dismissal is. However, the approach to be followed in conducting this enquiry caused dissent. Half of the judges were of the view that the correct approach is to follow the causation test set out in SA Chemical Workers Union v Afrox Ltd 1999 20 ILJ 1718 (LAC), while the other half disavowed reliance on the causation test. Instead, they opted to support the enquiry conducted in Chemical Workers Industrial Union v Algorax (Pty) Ltd 2003 24 ILJ 1917 (LAC). This case note seeks to establish which approach should be followed in determining the true reason for an alleged section 187(1)(c) automatically unfair dismissal.

scholarly journals WHEN DISASTER STRIKES – A CASE LAW ANALYSIS OF SIMULTANEOUS DEATHS

Obiter ◽  
2017 ◽  
Vol 38 (2) ◽  
Author(s):  
MC Schoeman-Malan
Keyword(s):  
South Africa ◽  
Case Law ◽  
The Other ◽  
Court Cases ◽  
Loss Of Life ◽  
Past 2000 Years ◽  
Media Reports ◽  
Simultaneous Loss ◽  
The One ◽  
Law Of Succession

Incidents of loss of life might inevitably result in litigation when the sequence of victims’ deaths is disputed. In this contribution, an analysis and discussion of tragic incidents and case law dealing with simultaneous deaths as well as the questions posed by the law of succession by the “commorientes” doctrine are done. The potential impacts where simultaneous deaths occur and several family members, or related persons, die instantly, are illustrated, with reference to natural disasters and shared tragedies on the one hand, and the frequency of the simultaneous loss of lives on the other. Different scenarios found in numerous reported incidents and cases from South Africa and other jurisdictions are discussed.It is also shown that several aspects have contributed to the recent increase of simultaneous deaths due to the change in times and conditions over the past 2000 years. Also contributing to this is the facts of the case, on the one hand, and dissimilarity in the approaches between common law and civil law on the other. The author focuses on case law as the Courts are called upon to determine the order of deaths to establish whether the exact sequence can be determined, or not. It has become apparent that whenever the order of death can be established accurately, the distribution of the estates will follow the sequence of deaths. However, if the order cannot be established the departed are either “regarded” as having predeceased each other (as no one survives the other), or surviving each other resulting in them being incapable of inheriting from one another. South Africa is exposed to high rates of simultaneous deaths, especially road accidents, murders and attacks on civilians, and despite daily media reports of people dying in the same disaster, there has been only a hand full of reported Court cases on this topic.

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (2)

2020 ◽  
Vol 33 (3) ◽  
pp. 617-645
Author(s):  
Chuks Okpaluba
Keyword(s):  
South Africa ◽  
South African ◽  
Case Law ◽  
The Other ◽  
Constitutional Court ◽  
Constitutional Development ◽  
Personal Liberty ◽  
The Supreme Court ◽  
Present Part ◽  
Court Of Appeal

The discussion of the South African case law on the quantification of damages arising from wrongful arrest and detention which commenced in part (1) of this series, continues in the present part. In part (1), the Constitutional Court judgment in Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC) which emphasised the respect and reverence for the constitutional guarantee of personal liberty, and De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) as well as the recent Constitutional Court judgment in the same case – De Klerk v Minister of Police 2020 (1) SACR 1 (CC); [2019] ZACC 32 (22 August 2019) – were among a host of important cases discussed. The Supreme Court of Appeal cases on quantification of damages for wrongful arrest and detention also discussed include: Mashilo v Prinsloo 2013 (2) SACR 648 (SCA); Minister of Police v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018); Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017). The first section of this part continues with the discussion of the other instances not involving failure to take the detainee to court within 48 hours or consequences of the accused person’s first appearance in court whereby Hendricks v Minister of Safety and Security (CA&R/2015) [2015] ZAECGHC 61 (4 June 2015); Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG); and Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) are among the cases discussed. The second limb of the discussion in this part concerns the issue of wrongful arrest and detention under the Domestic Violence Act 116 of 1998 where the law has developed side by side with the traditional law of wrongful arrest and police negligence as illustrated by the case of Naidoo v Minister of Police 2016 (1) SACR 468 (SCA).

‘We are saving the township’: Pentecostalism, faith-based organisations, and development in South Africa

2013 ◽  
Vol 51 (4) ◽  
pp. 627-651 ◽  
Author(s):  
Marian Burchardt
Keyword(s):  
South Africa ◽  
Health Education ◽  
South African ◽  
Social Relationships ◽  
The Other ◽  
Development Work ◽  
African City ◽  
Faith Based ◽  
The One ◽  
Organisational Dynamics

ABSTRACTIn this article, I trace the emergence of Pentecostal FBOs in the South African city of Cape Town. By focusing on their involvements in HIV/AIDS programmes, including practices such as health education, counselling and material support, I analyse the organisational dynamics and consequences ensuing from their activities. Pentecostal involvements in development work engender complex connections between two distinct processes: On the one hand, they offer Pentecostal communities new social spaces for promoting their faith and moral agendas. On the other hand, development work urges Pentecostal communities to recast their activities in the logic of formal organisation and accountability (proposals–grants–projects). On the ground, these logics are constantly subverted as beneficiaries construe FBOs aspatronsand deploy Pentecostal identities for mediating access to FBOs and the resources they command. My argument is that Pentecostal faith works to mediate the entire set of social relationships, expectations, imageries and practices that structure FBO work on the ground. More than belief and ritual, it isPentecostal belongingthat links organisations, people, opportunities and resources.

The Crucified Reflected in Africa's Cross-Bearers

2000 ◽  
Vol 17 (1) ◽  
pp. 82-96 ◽  
Author(s):  
Tinyiko Sam Maluleke
Keyword(s):  
South Africa ◽  
South African ◽  
The Other ◽  
International Congress ◽  
Keynote Address ◽  
Body Of Christ ◽  
African Christianity ◽  
Conference Theme ◽  
Grass Root ◽  
The One

AbstractIn this article, given as a keynote address at the Tenth International Congress of IAMS in Hammaskraal, South Africa, South African theologian Tinyiko Maluleke attempts to paint a rough picture of popular African Christology in the light of the Conference theme: "Reflecting Jesus Christ: Crucified and Living in a Broken World." He first notes that grass-root African Christianity harbors a dialectic of identification and non-identification with the suffering and experiences of Christ. On the one hand he is recognizable to Africans in his suffering and yet on the other hand it is recognized that he is like no one. Secondly, Maluleke reflects upon the challenge of reconciliation in Africa and in the light of the crucified and broken body of Christ. He explores the notions of forgiveness and truth and their relation to power. Thirdly, he considers the need and scarcity of hope in Africa. Hopelessness is in a sense one of the greatest indicators of Africa's brokenness. Fourth, Maluleke notes and briefly explores some possible implications of the shift of Christian gravity and the place of Africa in it. Fifth, he notes some contradictions to the massive Christian presence on the continent. Our theological approaches, he says, must acknowledge and own up to the brokenness of the continent. Only thus can African Christians come to appreciate the reality and worth of Jesus' brokenness for themselves. Perhaps in this way African Christians may be able to reflect (on) something of both the death and the resurrection of Christ.

scholarly journals Challenges and Prospects for Traditional Leadership in Africa: Towards Innovative Ideas to Enhance African Values among the Youth in South Africa

2017 ◽  
Vol 29 (2) ◽  
pp. 260-281
Author(s):  
Philip Iya
Keyword(s):  
South Africa ◽  
South African ◽  
Public Law ◽  
The Other ◽  
Central Question ◽  
African Society ◽  
The South ◽  
South African Society ◽  
Traditional Leadership ◽  
The One

The highly contested public law issue of the recognition of African values in South Africa with emphasis on the youth is addressed in this article. The arguments mooted revolve around the hypothesis that the youth in Africa ngenerally, but particularly in South Africa, are seldom involved in debates relating to African values, with the instance of African traditional leadership as a case in point. In expanding on this hypothesis two different approaches/schools of thought relating to the recognition of traditional leadership are highlighted. On the one end we find the ‘traditionalists’ with their emphasis on the ‘continued existence of traditional leaders’ for various reasons. On the other end, we find the ‘modernists’ who campaign for the total abolition of the institution of traditional leadership. However, the adoption of a more pragmatic middle course (an ‘inter-entrenched’ goalpost) is advocated. Nevertheless, the central question remains ‘how the South African society should move between the two goalposts (between traditionalism and modernism)?’ The answer to this question is the challenge.

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