Judicial Neutrality in the Face of Ineptitude: The Constitutional Court and Multi-Level Government in South Africa

2009 ◽  
pp. 27-42
Author(s):  
Nico Steytler
Keyword(s):  
South Africa ◽  
Constitutional Court ◽  
The Face ◽  
Multi Level ◽  
Level Government

scholarly journals Who are "the people" in the German Constitution? A critique of , and contribution to , the debate about the right of foreigners to vote in multilevel democracies

2020 ◽  
Vol 24 ◽  
Author(s):  
Jelena Bäumler
Keyword(s):  
South Africa ◽  
Voting Rights ◽  
Constitutional Court ◽  
Federal States ◽  
The People ◽  
German Constitution ◽  
Multi Level ◽  
Multiple Levels ◽  
Right To Vote ◽  
The Right

ABSTRACT Democracy means power to the people, but it is not always clear who belongs to "the people". The question has become pertinent in the age of migration where large groups of foreigners permanently reside outside their countries of nationality. The economic, cultural, and political integration of these foreigners is one of the pressing problems faced by democratic States in both the developed and developing worlds. One question is : whether resident non-citizens should be granted the right to vote. The answer to this question depends on who belongs to "the people". In federal and quasi-federal States with multiple levels of government the further question arises : whether "the people" is a homogenous concept that applies uniformly across all levels of government. This article contributes to the debate about the right of foreigners to vote in democratic States with multiple levels of government, such as, South Africa and Kenya. It does so by discussing the German response to the problems mentioned above. The dominant view of the German Federal Constitutional Court since the 1990s has been that "the people" only includes "German citizens" , and that attempts by lower levels of government to extend the right to vote to foreigners from Africa and elsewhere are unconstitutional. In this article I explore and critique this conventional view. I then present a positive case for the extension of voting rights to resident non-citizens under the German Constitution. Many of the arguments would apply with equal force to the debate about the right to vote of foreigners in African multi-level democracies, such as, South Africa and Kenya. Keywords: Denizenship, Citizenship, Voting rights, Nationality law, Multi-level government, The people, Foreigners, Residents, Affected persons principle, Democracy.

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.

The Prophetic Voice of the Church in a Democratic South Africa – A Theological Reflection

2018 ◽  
Vol 15 (2) ◽  
Author(s):  
Lufuluvhi Maria Mudimeli
Keyword(s):  
South Africa ◽  
Economic Transformation ◽  
The State ◽  
Black Liberation ◽  
South Africans ◽  
Black Liberation Theology ◽  
Prophetic Voice ◽  
The Face ◽  
The Church

This article is a reflection on the role and contribution of the church in a democratic South Africa. The involvement of the church in the struggle against apartheid is revisited briefly. The church has played a pivotal and prominent role in bringing about democracy by being a prophetic voice that could not be silenced even in the face of death. It is in this time of democracy when real transformation is needed to take its course in a realistic way, where the presence of the church has probably been latent and where it has assumed an observer status. A look is taken at the dilemmas facing the church. The church should not be bound and taken captive by any form of loyalty to any political organisation at the expense of the poor and the voiceless. A need for cooperation and partnership between the church and the state is crucial at this time. This paper strives to address the role of the church as a prophetic voice in a democratic South Africa. Radical economic transformation, inequality, corruption, and moral decadence—all these challenges hold the potential to thwart our young democracy and its ideals. Black liberation theology concepts are employed to explore how the church can become prophetically relevant in democracy. Suggestions are made about how the church and the state can best form partnerships. In avoiding taking only a critical stance, the church could fulfil its mandate “in season and out of season” and continue to be a prophetic voice on behalf of ordinary South Africans.

The Constitutional Court of South Africa: Thoughts on its 25-Year-Long Legacy of Judicial Activism

2021 ◽  
Vol 56 (1) ◽  
pp. 18-33
Author(s):  
Lucky Mathebe
Keyword(s):  
South Africa ◽  
Constitutional Court ◽  
Transformative Change ◽  
Democratic Accountability ◽  
Constitutional Democracy ◽  
The Public ◽  
Crime And Punishment ◽  
Black And White ◽  
Marginalised Groups

After almost 25 years of what could justifiably be called transformative change in South Africa, a truism is that the country’s new legal order, established by the Constitution in 1993 and 1996, provides the critical foundation of peace and security upon which its freedom has been built. The Constitutional Court was one of the most important of the new democratic institutions in the shaping of the country’s position as a constitutional democracy, upholding the values for which millions of people, black and white, had fought. This article is a brief reflection on the role of the Court in establishing the meaning of this democracy and giving it effect. The main goal of the article is to understand how the Court’s new jurisprudence works in particular contexts, how its work is related to crime and punishment, and what it means for the rights of marginalised groups in society. Using the examples of the Court’s decision in Makwanyane on the death penalty, and the Court’s decision on the findings of the Public Protector’s report on Nkandla, the article finds that the Court’s new jurisprudence takes quite a different view of legal developments in South Africa, insofar as the jurisprudence entrusts broad discretion to the Court and emphasises the need for sustained leadership of the Court to advance the battle for fundamental human rights, the rule of law, and democratic accountability.

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 The Position of Constitutional Complaint in the Constitutional Court of the Republic of Indonesia

2021 ◽  
Vol 2 (1) ◽  
pp. 61-78
Author(s):  
Agsel Awanisa ◽  
Yusdianto Yusdianto ◽  
Siti Khoiriah
Keyword(s):  
South Africa ◽  
South Korea ◽  
Judicial Review ◽  
Research Method ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Republic ◽  
Case Number

The purpose of this research is to determine the constitutional complaint mechanism based on comparisons in other countries, practices, and adaptation of constitutional complaints under the authority of the Constitutional Court of the Republic of Indonesia. Many cases with constitutional complaint substance have been submitted to the Constitutional Court of the Republic of Indonesia even though they don’t have this authority. This research uses a normative legal research method using a statutory approach, a conceptual approach, a comparative approach, and a case approach. This research indicates that the constitutional complaint mechanism in Germany, South Korea, and South Africa has been well implemented. In practice, cases with constitutional complaint substance are filed to the Constitutional Court of the Republic of Indonesia by changing the form by using the legal means of a judicial review, such as case number 16/PUU-VI/ 2008, case number 140/PUU-XIII/2015 and case number 102/PUU-VII/2009. Due to the consideration of the structure, substance, and culture of law, adaptation of constitutional complaint within the authority of the Constitutional Court of the Republic of Indonesia needs to be carried out by amending Law Number 24 of 2003 jo. Law Number 7 of 2020 concerning the Constitutional Court.

scholarly journals Common Starling Sturnus vulgaris expansion in South Africa

2018 ◽  
Vol 9 ◽  
Author(s):  
Ielyzaveta M. Ivanova ◽  
Craig T. Symes
Keyword(s):  
South Africa ◽  
Sturnus Vulgaris ◽  
Anthropogenic Change ◽  
Gauteng Province ◽  
The Past ◽  
Entire Country ◽  
The Face ◽  
The Common ◽  
Potential Impact ◽  
Using Data

The Common Starling Sturnus vulgaris has progressively expanded its range in South Africa since its introduction into Cape Town in the late 19th century. In the past few decades it has extended this range into Gauteng province. Using data from the Southern African Bird Atlas Project 2, this paper examines the spread and relative abundance changes for the species across South Africa over the past 10 years, with a detailed look at the recently-colonised Gauteng. Across South Africa, the Common Starling's distribution has shifted, and grown. As it spreads north along the coastline and northwards inland, some of the former range has been lost. In Gauteng, the species has shown a range and abundance expansion over the same period. If the observed trends are to continue, this species is likely to eventually become a prominent species across the entire country, and further north into the sub-region. However, the potential impact that this species has on indigenous avifauna is unknown and, in the face of rapid anthropogenic change, remains to be investigated.

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