CONSTITUTIONALISM IN DEMOCRATIC SOUTH AFRICA: CELEBRATIONS, CONTESTATIONS AND CHALLENGES

2020 ◽  
Vol 36 (2) ◽  
Author(s):  
Henning Melber
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Public Perception ◽  
Public Awareness ◽  
Chief Executive ◽  
Mirror Image ◽  
South Africans ◽  
The Republic ◽  
The Government

South Africans often proudly proclaim that our Constitution is one of the most progressive in the world. Yet if you ask most South Africans how they really feel about gay rights, abortion and the death penalty, their answers, more often than not, contradict the values enshrined in the Constitution. (Ahmed 2014) This is the sobering assessment of the Chief Executive of the South African Human Rights Commission 20 years into democratic South Africa. The document adopted by The Constitution of the Republic of South Africa Act 108 of 1996 was considered an exemplary showpiece for the new democratic, human rights based era — embraced as "proudly South African" among the world's most enlightened legal frameworks. Taking stock almost two decades later, however, constitutionality seems to have not yet been deeply and firmly anchored in public awareness or ingrained into a ] social fabric guiding the fundamental values, ethics and norms as reflected by ordinary public perception and opinion. Nor have policy makers in the government seemingly internalised an unconditional respect for and recognition of the governance principles enshrined in this Constitution, as some recent examples seem to suggest. The current controversy around the "spy tapes", but even more so the contested role of the public protector — dubbed "a jewel in South Africa's constitutional crown" (Pieters 2014) — and her stance with regard to Nkandla and the obligations of the head of state to respond to her recommendations are obvious tips of the iceberg. But current discourses at the same time are a mirror image of the ongoing struggles over the power of definition and the interpretation, as well as adherence, to the rules of the game as laid down in the normative framework. As constitutions elsewhere, there is a discrepancy between what is stated, how it ought to be understood and interpreted, how it should be adhered to and applied, and what the intended effects, as well as the real consequences are. It therefore is not by accident that debates and contestations over the meaning and implications of constitutional principles are an eminently political affair and an integral part of governance. It would be more worrying, if this would not be the case, since this would suggest that those in control over society reign supreme in the sense of governing without checks and balances. So then let's have a closer look at the issues at stake.

scholarly journals DE-LINKING UBUNTU: TOWARDS A UNIQUE SOUTH AFRICAN JURISPRUDENCE

Obiter ◽  
2021 ◽  
Vol 31 (1) ◽  
Author(s):  
Freddy Mnyongani
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Legal Discourse ◽  
National Unity ◽  
South Africans ◽  
The Past ◽  
Divided Society ◽  
History Of ◽  
The Republic

The adoption in 1993 of the interim Constitution of the Republic of South Africa Act (200 of 1993) as the supreme law of the Republic marked a watershed moment in the history of South Africa. It was a moment of transition for which the interim Constitution was to serve as a bridge. In the words of the post-amble: “This Constitution provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.” (Under the section titled: “National Unity and Reconciliation”.) Given the volatile political context within which South Africa’s transition was negotiated, the drafters of the Constitution saw fit to append a postamble in which they called for the “need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation” (under the section titled: “National Unity and Reconciliation”). For a country where the traditional legal discourse has been the domain of Western liberal values, the inclusion of an African value of ubuntu in the Constitution was in itself “a historic bridge”. In the words ofEtienne Mureinik, if this bridge is to “span the open sewer of violent and contentious transition” those who are entrusted with its upkeep need to know where the bridge is from and where it is leading to. For Mureinik, the interim Constitution is a bridge away from a culture of authority to a culture of justification where every exercise of power must be justified.

A Call for Public Participation in the Treaty-making Process in South Africa: What can South Africa Learn from the Kingdom of Thailand?

2020 ◽  
Vol 53 (1) ◽  
Author(s):  
Retselisitsoe Phooko
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Public Participation ◽  
International Treaty ◽  
Legal Implications ◽  
Future Situation ◽  
Rules Of Procedure ◽  
The Republic ◽  
The Government ◽  
Personal Jurisdiction

On 2 August 2002 South Africa signed the Southern African Development Community (SADC) Protocol on Tribunal and the Rules of Procedure Thereof, thus effectively recognising and accepting the jurisdiction of the SADC Tribunal. Among the cases received by the SADC Tribunal was a complaint involving allegations of human rights violations by the government of Zimbabwe. It ruled that the government of Zimbabwe had violated human rights. Consequently, Zimbabwe mounted a politico-legal challenge against the existence of the Tribunal. This resulted in the review of the role and functions of the Tribunal in 2011 which resulted in the Tribunal being barred from receiving new cases or proceeding with the cases that were already before it. Furthermore, on 18 August 2014, the SADC Summit adopted and signed the 2014 Protocol on the Tribunal in the SADC which disturbingly limits personal jurisdiction by denying individual access to the envisaged Tribunal, thus reducing it to an inter-state judicial forum. This article critically looks at the decision of 18 August 2014, specifically the legal implications of the Republic of South Africa’s signing of the 2014 Protocol outside the permissible procedure contained in article 37 of the SADC Protocol on the Tribunal. It proposes that South Africa should correct this democratic deficit by introducing public participation in treaty-making processes in order to prevent a future situation where the executive unilaterally withdraws from an international treaty that is meant to protect human rights at a regional level. To achieve this, this article makes a comparative study between South Africa and the Kingdom of Thailand to learn of any best practices from the latter.

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.

scholarly journals Tribalism: Thorny issue towards reconciliation in South Africa – A practical theological appraisal

2018 ◽  
Vol 74 (1) ◽  
Author(s):  
Elijah M. Baloyi
Keyword(s):  
South Africa ◽  
Ethnic Groups ◽  
South African ◽  
African Government ◽  
South Africans ◽  
Black South Africans ◽  
Theological Perspective ◽  
The Government ◽  
Apartheid Regime ◽  
Practical Theological

The apartheid regime used various strategies to ensure that South Africans formed a divided nation. It was through the differences between ethnic groups and tribes, among other things, that the government of the time managed to manipulate and entrench hatred and a lack of trust among most black South Africans. Tribalism, which existed even before apartheid, became instrumental in inflicting those divisions as perpetuated by the formation of homelands. The various ethnic groups had been turned against one other, and it had become a norm. Nepotism, which is part and parcel of the South African government, is just an extension of tribalism. It is the objective of this article to uncover how tribalism is still rearing its ugly head. From a practical theological perspective, it is important to deal with tribalism as a tool that plays a part in delaying tribal reconciliation, which was orchestrated by apartheid policies 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.

Saints or Sinners: Public Evaluations of Post-Apartheid South African Presidents

Politeia ◽  
2018 ◽  
Vol 36 (1) ◽  
Author(s):  
Jamy Felton
Keyword(s):  
South Africa ◽  
Performance Evaluation ◽  
South African ◽  
Multivariate Analyses ◽  
Identity Performance ◽  
South Africans ◽  
Current Affairs ◽  
Cognitive Awareness ◽  
The Government

This study investigates the nature of public evaluations of the presidents of post-apartheid South Africa. It consists of multivariate analyses which tests competing theories. Using IDASA (Institute for Democracy in South Africa) and Afrobarometer data from 1997, 2000, 2002, 2004, 2006, 2008, 2011 and 2015, the article tests identity, performance evaluation and cognitive awareness theories to determine which factors predict approval levels of the president. Findings indicate that South Africans are more likely to make use of performance evaluation when ascribing support than to use their cognitive awareness of current affairs. There is an indication that South Africans who share an identity with the president are more likely to approve of the president -- especially in recent years. However, South Africans are rational people who are more likely to base their approval of the president on how the government performs and how they perceive the economy.

scholarly journals Neither Adopted nor Borrowed: A Critique of the Conception of the South African Bill of Rights

2020 ◽  
Vol 23 ◽  
pp. 1-26
Author(s):  
Felix Dube
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
International Human Rights ◽  
South Africans ◽  
The People ◽  
Human Rights Movement ◽  
International Human

The failure of the post-apartheid government to deliver on some of the promises of the South African Bill of Rights, coupled with the appropriation of the Bill of Rights by the international human rights movement, create the impression that the Bill of Rights is a neo-liberal instrument which is irrelevant to the needs of South Africans and the realities of their circumstances. If the people of South Africa are convinced that the Bill of Rights embraces a Western agenda more than it expresses their collective aspirations, it will lose its legitimacy. While acknowledging that the conception of the Bill of Rights is contested between the international human rights movement and some South Africans, this article shows that the Bill of Rights was neither adopted nor borrowed from the international human rights movement. South Africans did not assimilate the International Bill of Rights but conceived their own Bill of Rights in the early decades of the 20th Century. The conception of the South African Bill of Rights was a response to colonialism and apartheid and was not a consequence of tutelage by the international human rights movement.

scholarly journals 'South Africa is Not an Accused'

2017 ◽  
Vol 3 (1) ◽  
pp. 157-175
Author(s):  
Jerusha Asin
Keyword(s):  
South Africa ◽  
South African ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
African Union ◽  
Judicial Decision ◽  
High Court ◽  
The Republic ◽  
The Government

There is a confrontation between the International Criminal Court (ICC) and state parties, and at this particular point in time, the Republic of South Africa, in connection with the arrest warrants issued by the Court for the President of Sudan in 2009 and 2010. Between 13 and 15 June 2015, President Omar al-Bashir was present on the territory of South Africa for purposes of attending the 25th Ordinary Session of the Assembly of the African Union. Despite judgments from both the ICC upholding the obligation of South African authorities to arrest and surrender President Bashir and parallel domestic proceedings at the South African High Court in which authorities were ordered to prevent the departure of President Bashir from South African territory pending final judicial decision on whether the Government was required to execute the ICC arrest warrants, President Bashir nevertheless departed from the Waterkloof military air base on 15 June 2015, even as Government lawyers assured the High Court in a hearing on the same date that he was still in the country. Only after his plane had safely landed in Khartoum did the same lawyers then notify the High Court that he had left South Africa. This article will analyze this case in the following lines.

Human Rights to Water Access in South Africa: Challenges and Critical Concerns

2021 ◽  
Vol 17 (2) ◽  
Author(s):  
Tinuade Adekunbi Ojo
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Water Policy ◽  
Water Access ◽  
The South ◽  
History Of ◽  
Access To Water ◽  
The Government ◽  
Basic Infrastructure

Many scholars have written on the challenges of ensuring access to water in South Africa, and much research has been done on the national water policy of the South African Government, yet major challenges facing the water sector persist. This study presents a human rights approach as a theoretical foundation for investigating the basic right to water access, with a specific focus on the sustainable development goals (SDGs) in the three tiers of governance. Existing literature on the history of water access was explored regarding the global as well as the South African history of water rights. The main focus of this study was SDG no. 6, which is related to issues regarding water access in South Africa. The study concluded that the human right of having access to water is a crucial issue to be treated with caution by the government in order for the poor to have basic infrastructure.

scholarly journals COMMISSIONS OF INQUIRY AS A RESPONSE TO CRISIS: THE ROLE OF THE JALI COMMISSION IN CREATING PUBLIC AWARENESS OF CORRUPTION (PART 2)

Obiter ◽  
2021 ◽  
Vol 42 (2) ◽  
Author(s):  
Stephen Allister Peté
Keyword(s):  
South Africa ◽  
South African ◽  
Public Awareness ◽  
Early Years ◽  
Liberal Democratic ◽  
The Face ◽  
Commissions Of Inquiry ◽  
The Government ◽  
The Many ◽  
High Level

When the government of a liberal constitutional democracy is confronted by some or other existential crisis that threatens a major institution of state or the very foundations of the democracy itself, it will often appoint a high-level judicial commission of inquiry as part of its response to the crisis. South Africa is no exception to this tendency, as is evidenced in recent years by the appointment of no fewer than four such commissions in response to a series of crises related to ongoing corruption within state institutions – commonly referred to by ordinary South Africans as “state capture”. This has raised questions as to the alleged benefits of such commissions when viewed in relation to their considerable costs. This article seeks to contribute to this general debate by focusing on one of the purported benefits of such commissions that may be somewhat under appreciated. This is the creation of public awareness, during the life of the commission itself, about the nature and extent of the particular grave threat that confronts the society in question. It is contended that, mediated by a free and vibrant press, the public narrative that emerges during the operation of a commission of inquiry may serve to make a liberal democratic society more resilient in the face of threats to that society’s continued existence. This article seeks to support this contention by focusing on an important precursor to the more recent commissions of inquiry on corruption in South Africa – that is, the Jali Commission of Inquiry into corruption within the South African penal system, which sat in the early years of the new millennium. By analysing the many articles and reports that appeared in a range of South African newspapers during the initial hearings of the Jali Commission, this article documents the emergence of an important public narrative on corruption within South Africa’s prisons, and reflects upon the ultimate significance. This article is divided into two parts: the first part deals with the initial hearings of the Jali Commission in KwaZulu-Natal, and the second part with subsequent hearings in the Free State.

Sign in / Sign up

Export Citation Format

Share Document