South African Journal on Human Rights最新文献_第4页

The recognition of same-sex customary marriages under South African customary law 南非习惯法对同性习惯婚姻的承认

IF 0.9 4区社会学

South African Journal on Human Rights Pub Date : 2022-04-03 DOI: 10.1080/02587203.2022.2128398

F. Osman, Mathabo Baase

{"title":"The recognition of same-sex customary marriages under South African customary law","authors":"F. Osman, Mathabo Baase","doi":"10.1080/02587203.2022.2128398","DOIUrl":"https://doi.org/10.1080/02587203.2022.2128398","url":null,"abstract":"Abstract Same-sex couples in South Africa may conclude marriages and enjoy equal rights as their opposite-sex counterparts. A glaring lacuna in South African law is whether same-sex couples may marry in accordance with customary law with legal force and effect. This article uses desktop research to critically examine whether customary law accommodates same-sex customary marriages and if not, whether customary law should be developed to do so. Despite the popular rhetoric that same-sex relations are ‘un-African’, the article argues that there is an established history of same-sex practices in Africa, and recent media reports point to development in customary law to recognise same-sex marriages. But given the differences in customary law across the country, this may be fiercely contested. Arguably, some versions of customary law do not recognise same-sex marriages. In practice, the courts will have to consider whether to develop customary law to accommodate same-sex customary marriages. The rights of individuals to equality and culture must be balanced against broader understandings of culture and the courts’ role in developing customary law in line with constitutional values. Courts must employ a nuanced development of the law that protects the rights of same-sex couples without undermining customary law.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"38 1","pages":"1 - 23"},"PeriodicalIF":0.9,"publicationDate":"2022-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46134416","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Resistance to reform property: A ‘resilient property’ perspective 房地产改革的阻力:“弹性房地产”的视角

IF 0.9 4区社会学

South African Journal on Human Rights Pub Date : 2022-04-03 DOI: 10.1080/02587203.2022.2103025

S. Viljoen

{"title":"Resistance to reform property: A ‘resilient property’ perspective","authors":"S. Viljoen","doi":"10.1080/02587203.2022.2103025","DOIUrl":"https://doi.org/10.1080/02587203.2022.2103025","url":null,"abstract":"Abstract A wicked problem is identified in South African property law as the inaccessibility of secure land/housing rights for the vulnerable. This problem is contextualised as largely unsolvable when working with reductionist frames, after which the core and extent of the problem is unpacked with reference to two interconnecting regimes, that of land reform and housing. Various aspects of the problem are alluded to in both regimes, not to solve the problem, or aspects thereof, but to focus on underlying forms of state resistance; that is, large-scale governmental resistance to conform to constitutional directives. Such resistance is unpacked by relying on ‘resilient property’, as recently developed by Lorna Fox O’Mahony and Marc Roark, which offers a novel, insightful account of the role of the state’s own need for resilience in determining state responses to complex property problems. Two preliminary signs of resistance – property as sovereignty and economic policy choices – are further analysed to ‘rationalise’ misdirected policy choices, incoherence between policies and laws and what the courts have described as absurd bureaucratic decision-making.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"38 1","pages":"24 - 45"},"PeriodicalIF":0.9,"publicationDate":"2022-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59284173","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Resuscitating the PAJA in state self-review? Compcare Wellness Medical Scheme v Registrar of Medical Schemes 恢复PAJA状态自我审查？康普卡健康医疗计划诉医疗计划注册处

IF 0.9 4区社会学

South African Journal on Human Rights Pub Date : 2022-04-03 DOI: 10.1080/02587203.2022.2099456

Raisa Cachalia

{"title":"Resuscitating the PAJA in state self-review? Compcare Wellness Medical Scheme v Registrar of Medical Schemes","authors":"Raisa Cachalia","doi":"10.1080/02587203.2022.2099456","DOIUrl":"https://doi.org/10.1080/02587203.2022.2099456","url":null,"abstract":"Abstract In the earlier decision in State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd the Constitutional Court concluded that the legality principle and not the Promotion of Administrative Justice Act 3 of 2000 (the PAJA) applies to state self-reviews of administrative decisions. This was justified on the basis that the state, unlike a private litigant, is not a bearer of the right to administrative justice and is, for this reason, prevented from relying on the PAJA to review its own prior decisions (the Gijima principle). The Court, however, stated that its conclusion was limited to instances where a state organ reviews its own decision and acts in its own interest for the purposes of section 38(a) of the Constitution. This note explores the implications of the SCA’s later decision in Compcare Wellness Medical Scheme v Registrar of Medical Schemes for the Gijima principle. In substance, Compcare concluded that whenever a state organ seeks the review and setting aside of its own administrative action or that of another state organ, it must rely on the PAJA. This is because it will always be seeking to enforce the right to just administrative action in the public interest in terms of section 38(d) of the Constitution, and never in its own interests for the purposes of section 38(a). Although Compcare was concerned with a scenario that fell outside of the Gijima principle, the principled effect of the judgment is to resuscitate the PAJA in all state self-reviews of administrative actions and in so doing, to defeat the basic premise in Gijima that the state cannot rely on the PAJA.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"38 1","pages":"70 - 91"},"PeriodicalIF":0.9,"publicationDate":"2022-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49391041","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Making the best of the best interests: A commentary of AB v Pridwin Preparatory School 最大利益最大化——评AB诉Pridwin预备学校案

IF 0.9 4区社会学

South African Journal on Human Rights Pub Date : 2022-04-03 DOI: 10.1080/02587203.2022.2089224

C. Fawole

引用次数: 0

Private sporting bodies and the ‘supervisory disciplines of public law’: Ndoro v South African Football Association as an apt case study for line-drawing within a four-quadrant typology 私人体育机构和“公法的监督纪律”:恩多罗诉南非足球协会案是一个恰当的案例研究，用于在四象限类型中划线

IF 0.9 4区社会学

South African Journal on Human Rights Pub Date : 2022-04-03 DOI: 10.1080/02587203.2022.2122074

L. Kohn

{"title":"Private sporting bodies and the ‘supervisory disciplines of public law’: Ndoro v South African Football Association as an apt case study for line-drawing within a four-quadrant typology","authors":"L. Kohn","doi":"10.1080/02587203.2022.2122074","DOIUrl":"https://doi.org/10.1080/02587203.2022.2122074","url":null,"abstract":"Abstract The public/private intersection is complex terrain. In this contribution, I seek to provide some conceptual clearing by crafting a four-quadrant typology to aid judicial line-drawing along the spectrum of public and private power. At the centre of these (non-watertight) categories is the realm of administrative action that may thus be subject to review under the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Against this backdrop, I reflect upon the development presented in Ndoro v South African Football Association (‘Ndoro’). This case fits within Quadrant 4 of my typology insofar as it pertains to private actors – the Federation Internationale de Football Association (FIFA); the South African Football Association (SAFA); the National Soccer League (NSL); member football clubs; and their players – founded and governed entirely by contract and so exercising (ostensibly) private powers. Notwithstanding these private matters of form, in Ndoro, Unterhalter J persuasively chartered new substantive terrain. Through carefully principled reasoning, he found that ‘what these bodies do and the objects they strive after are public in nature’. To this end, the court brought the applicable powers and functions of these bodies within the scope of PAJA-review proper, rather than simply employing the common-law principles that would normally be used in this context. This raises interesting questions about what public – and indeed, administrative law – is all about, and it lays the groundwork for judicial intervention in the likes of the ‘Jockey Club-type cases’ via PAJA.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"38 1","pages":"112 - 127"},"PeriodicalIF":0.9,"publicationDate":"2022-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45783192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The legal accountability of local government in South Africa for the failure to deliver sanitation services 南非地方政府对未能提供卫生服务的法律责任

IF 0.9 4区社会学

South African Journal on Human Rights Pub Date : 2022-04-03 DOI: 10.1080/02587203.2022.2115397

Nozuko Twani, C. Soyapi

引用次数: 1

‘Fishers’ rights are human rights’: George v Minister of Environmental Affairs and Tourism 2005 (6) SA 297 “渔民的权利是人权”:乔治五世环境事务和旅游部长，2005年(6)SA 297

IF 0.9 4区社会学

South African Journal on Human Rights Pub Date : 2021-10-15 DOI: 10.1080/02587203.2021.1987155

Anthea Christoffels-Du Plessis

{"title":"‘Fishers’ rights are human rights’: George v Minister of Environmental Affairs and Tourism 2005 (6) SA 297","authors":"Anthea Christoffels-Du Plessis","doi":"10.1080/02587203.2021.1987155","DOIUrl":"https://doi.org/10.1080/02587203.2021.1987155","url":null,"abstract":"AbstractIn 2004, artisanal fishers, community-based and non-governmental organisations representing ∼5,000 artisanal fishers from various fishing communities sought relief inter alia under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 as a result of the unfair discrimination against them because of the fisheries legal framework. This case note focuses on this unique class action brought by the fishers in the Equality Court and the decisions resulting from the case. The relief sought by the fishers to remedy the discrimination and inequity was to compel the then Minister of Environmental Affairs and Tourism to make proper and adequate provision for artisanal fishers in terms of the fisheries legal framework, giving them equitable access to marine resources alongside other marine resource users. This note evaluates the impact of the order of the Equality Court, as it served as the trigger to transform small-scale fisheries in South Africa. The note also discusses the human-rights-centred themes reflected in the South African Small-Scale Fisheries Policy and considers the extent to which this policy is aligned to the United Nations Food and Agriculture Organisation’s Small-Scale Fisheries Guidelines of 2015.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"51 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138532292","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Covid-19 pandemic and socio-economic protection for refugees in South Africa 新冠肺炎大流行和对南非难民的社会经济保护

IF 0.9 4区社会学

South African Journal on Human Rights Pub Date : 2021-10-02 DOI: 10.1080/02587203.2022.2034525

C. Kavuro

引用次数: 0

LM du Plessis

IF 0.9 4区社会学

South African Journal on Human Rights Pub Date : 2021-10-02 DOI: 10.1080/02587203.2022.2054979

Elmien (WJ) du Plessis

引用次数: 0

Constitutional Court statistics for the 2020 term 宪法法院2020年任期统计数据

IF 0.9 4区社会学

South African Journal on Human Rights Pub Date : 2021-10-02 DOI: 10.1080/02587203.2022.2043991

Busisiwe Kamolane-Kgadima, Thandeka Kathi, Tebogo Moloko, Zanele Malindi, Rudo T. Mhiribidi, Tshepo Skosana, Adelaide R. Chagopa

引用次数: 0