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.

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.

Equality and Non-Discrimination in the South African Constitution

2000 ◽  
Vol 4 (1) ◽  
pp. 47-71
Author(s):  
Joan Small ◽  
Evadne Grant
Keyword(s):  
South Africa ◽  
South African ◽  
Human Dignity ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Legal Effect ◽  
The Law ◽  
South African Constitution

Equality occupies the first place in most written constitutions, but in South Africa, its importance is magnified both in terms of the text of the Constitution and in terms of the context in which that Constitution operates. The Bill of Rights is expected, in South Africa, to help bring about the transformation of the society. These expectations of transformation through the operation of the Bill of Rights are informing the development of the law in relation to equality and non-discrimination by the Constitutional Court. The concept of discrimination is uniquely defined in the South African Bill of Rights. The Courts are struggling to give legal effect to the terminology. The test developed by the Court to interpret the equality clause, it is submitted, is comprehensive and informed. But the application of the test is sometimes problematic. This paper addresses the evolving concepts of equality and discrimination in South Africa and discusses some of the difficulties with certain aspects of the test for discrimination, including the concepts of unfairness and human dignity, which have caused division among the judiciary.

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.

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.

scholarly journals The limitation of the discovery rules of Court against the right of access to information in South Africa

2017 ◽  
Vol 13 (3) ◽  
pp. 1029-1051
Author(s):  
Rashri Baboolal-Frank ◽  
Fola Adeleke
Keyword(s):  
South Africa ◽  
South African ◽  
Access To Information ◽  
Legal Analysis ◽  
Civil Proceedings ◽  
Access Information ◽  
Constitutional Right ◽  
South African Constitution ◽  
The Right ◽  
Right Of Access

Abstract In South Africa, the Promotion of Access to Information Act 2 of 2000 (PAIA) gives effect to the right of access information in Section 32 of the South African Constitution (the Constitution). Section 7 of PAIA provides that PAIA does not apply to records required for criminal or civil proceedings after commencement of proceedings where access to that record is already provided for in any other law. Where records are obtained in contravention of Section 7, they are not admissible as evidence in criminal or civil proceedings. The aim of this paper is to determine whether the discovery rules of Court limit the constitutional right of everyone to access information. Consequently, the methodology employed in this paper involves a legal analysis namely: a limitations analysis utilising Section 36, the limitations clause of the Constitution. This paper further engages in case law analysis interpreting the exercise of the right of access to information before PAIA was passed and after PAIA was passed to highlight the anomaly of the application of Section 7. This paper argues that Section 7 unconstitutionally limits the ambit of the right of access to information and a direct constitutional challenge on this provision is necessary.

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.

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 Proportionality and the limitation clauses of the South African Bill of Rights

2014 ◽  
Vol 17 (6) ◽  
pp. 2229
Author(s):  
IM Rautenbach
Keyword(s):  
South African ◽  
Public Interest ◽  
General Concept ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Levels Of Abstraction ◽  
Global Constitutionalism ◽  
South African Constitution ◽  
The Right

"Proportionality" is a contemporary heavy-weight concept which has been described as an element of a globalised international grammar and as a foundational element of global constitutionalism. The article firstly describes the elements of proportionality as they are generally understood in foreign systems, namely whether the limitation pursues a legitimate aim, whether the limitation is capable of achieving this aim, whether the act impairs the right as little as possible and the so-called balancing stage when it must be determined whether the achievement of the aim outweighs the limitation imposed. The German academic Alexy (Theorie der Grundrechte (1986)) developed what he called a mathematical weight formula to deal with the balancing stage. An overview is provided of how the elements of proportionality were dealt with in the text of the South African interim Constitution of 1994, the early jurisprudence of the Constitutional Court, and in the text of the final Constitution of 1996. Contemporary South African academic criticism of the use of the concept is also analysed. The article then endeavours to relate the elements of Alexy’s weight formula to both the elements of the South African general limitation clause in section 36 of the Constitution and to the appearance of such elements in the formulation of specific rights in the Bill of Rights. Although the levels of abstraction reached in the debates on the Alexy formula are so daunting that it is most unlikely that South African courts and practitioners will ever use it, certain valuable insights can be gained from it for the purposes of dealing with proportionality within the context of the limitation of rights in South Africa. Despite opposition from certain academics, proportionality is a prominent feature of the application of the limitation clauses in the South African Constitution. The elements of proportionality provides a useful tool for the application, within the context of the limitation of rights, of general and wide concepts such as "fairness", "reasonableness", "rationality", "public interest" and, somewhat surprisingly, also of the general concept "proportionality" as such. South Africa’s participation in the global recognition and application of this way of dealing with the limitation of rights is worthwhile.

scholarly journals "Pay Now, Argue Later" Rule – Before and After the Tax Administration Act

2017 ◽  
Vol 16 (4) ◽  
pp. 124
Author(s):  
Carika Keulder
Keyword(s):  
South African ◽  
Value Added ◽  
Prima Facie ◽  
Tax Administration ◽  
Constitutional Court ◽  
The South ◽  
Value Added Tax ◽  
Significant Difference ◽  
The Right ◽  
Right Of Access

The South African Revenue Service (SARS) is entrusted with the duty of collecting tax on behalf of the South African government. In order to ensure effective and prompt collection of taxes, the payment of tax is not suspended pending an objection or an appeal, unless directed otherwise. This is also known as the "pay now, argue later" rule, and, for value-added tax purposes, is provided for in terms of section 36 of the Value-Added Tax Act 89 of 1991. The "pay now, argue later" rule in terms of section 36 of the Value-Added Tax Act prima facie infringes on a taxpayer's right of access to the courts as envisaged in section 34 of the Constitution. This is due to the fact that a taxpayer is obliged to pay tax before being afforded the opportunity to challenge the assessment in a court. In Metcash Trading Ltd v Commissioner for the South African Revenue Service, the Constitutional Court held the "pay now, argue later" rule in terms of section 36 to be constitutional. Olivier, however, does not agree with the court on several matters. Amongst the problems she indicates are that the taxpayer does not have access to the courts at the time the rule is invoked, and that the court did not consider the fact that there might be less invasive means available which would ensure that SARS's duty is balanced with the taxpayer's right of access to the courts. Guidelines were also issued which provide legal certainty regarding the factors SARS may consider in determining whether the payment of tax should be suspended or not. These guidelines also evoked some points of criticism. Since 1 October 2012, the "pay now, argue later" rule has been applied in terms of section 164 of the Tax Administration Act 28 of 2011. The question arises whether this provision addresses the problems identified in respect of section 36 of the Value-Added Tax Act and the guidelines. In comparing these sections, only slight differences emerged. The most significant difference is that section 164(6) of the Tax Administration Act stipulates that the enforcement of tax be suspended for a period when SARS is considering a request for suspension. Section 164(6) does not provide a solution to the problems identified regarding section 36 of the Value-Added Tax Act. It is even possible that this section could give rise to further problems. Therefore, the legislature has failed to address the imbalance between the duties of SARS and the right of a taxpayer to access the courts.

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