South African Journal on Human Rights最新文献

{"title":"Separation of powers and the institutional supremacy of the Constitutional Court over Parliament and the executive","authors":"Felix Dube","doi":"10.1080/02587203.2021.1925954","DOIUrl":"https://doi.org/10.1080/02587203.2021.1925954","url":null,"abstract":"Abstract South African judges often caution against judicial encroachment into what they perceive as the exclusive domains of the legislature and the executive. Their caveats stem from the doctrine of separation of powers, which classically divides state authority between the three branches of government. However, the classification of the courts, particularly the Constitutional Court, as a branch of the government potentially misconstrues the division of state authority in the Constitution of the Republic of South Africa, 1996. The powers and authority of the Constitutional Court place it at the apex of the legal and political order such that from a conceptual and practical view, the Court is constitutionally superior to Parliament and the executive. As such, a traditional understanding of the doctrine of separation of powers does not properly reflect the South African constitutional arrangement. This contribution re-evaluates the relevance and application of the doctrine of separation of powers in contemporary jurisprudence. It recognises the superiority of the Constitutional Court over Parliament and the executive and shows that the time has come to consider the institutional supremacy of the Constitutional Court as a possible doctrine of constitutional law in South Africa.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"293 - 318"},"PeriodicalIF":0.9,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2021.1925954","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49159444","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}

{"title":"Are judicial monitoring institutions a legitimate remedy for addressing systemic socioeconomic rights violations?","authors":"Ropafadzo Maphosa","doi":"10.1080/02587203.2021.1934105","DOIUrl":"https://doi.org/10.1080/02587203.2021.1934105","url":null,"abstract":"Abstract Sections 26(2) and 27(2) of the Constitution of the Republic of South Africa, 1996 provide that the state must take reasonable legislative and other measures to ensure the progressive realisation of socio-economic rights including, housing and social security. The executive is generally responsible for the implementation of these rights. However, a core challenge in South Africa is that the executive is beset by chronic incapacity, especially at provincial and local government levels, which has hindered the realisation of socio-economic rights. This article investigates the increasingly intrusive orders by the judiciary to address this problem; these orders include, specifically, appointing bodies to manage service delivery by the executive. I will situate these mechanisms within the broader powers of the judiciary and provide a justification for them, under particular conditions, against criticisms of judicial overreach. In engaging with their legal justifiability, I will analyse recent South African case law as well as examples from India and Colombia so as to highlight that the South Africa judiciary is not unique in developing such mechanisms. In concluding, I identify the conditions under which the deployment of these mechanisms may be considered justifiable as well as their value in advancing the realisation of socio-economic rights in South Africa.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"362 - 385"},"PeriodicalIF":0.9,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2021.1934105","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48185485","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}

{"title":"The path-breaking odyssey of George Bizos SC: A tribute","authors":"Jason Brickhill","doi":"10.1080/02587203.2020.1921332","DOIUrl":"https://doi.org/10.1080/02587203.2020.1921332","url":null,"abstract":"George Bizos SC died on 9 September 2020 at the age of 92, as the most senior member of the Johannesburg Bar. Bizos joined the Bar in 1954 and took silk in 1978. Therefore his career at the Bar spanned an extraordinary 65 years during a tumultuous period of South Africa’s history. From 1991 until shortly before his death, he served as Senior Counsel at the Legal Resources Centre’s Constitutional Litigation Unit. He will be remembered as one of South Africa’s greatest advocates, particularly with regard to the innumerable political trials he appeared in, many of which have been discussed and debated in the pages of the South African Journal on Human Rights. Throughout his years as a struggle lawyer during apartheid, and long after democratic elections in 1994, Bizos was a major contributor to the constitutional transition and the building of South Africa’s constitutional democracy. When, in 1999, the University of the Witwatersrand conferred an honorary doctorate of law honoris causa on Bizos, the citation described him as ‘the doyen’ of the human rights lawyers at the Johannesburg Bar. Such was the breadth and depth of his work over more than half a century that I can only touch on some of his most lasting contributions, and their significance, both for public interest lawyers and for future human rights debates. It is difficult to describe the role of George Bizos as counsel without putting the apartheid legal system as a whole on trial. All of the political trials in which he represented activists and freedom fighters involved direct confrontation with the apartheid state, mediated through the artifice of legalism that it used to suppress political activity. He never shied away from speaking truth to power. While Bizos is particularly remembered for his role in arguably the most famous political trials of the twentieth century, including the Rivonia Trial and Delmas Trial, he represented many more political activists and freedom fighters, including many less well-known figures. It was during this brutal period that Bizos developed a deep, lifelong and unflinching abhorrence for the death penalty, scarred as he was by the execution of activists that he had represented. During the Rivonia Trial, he reportedly persuaded Nelson Mandela to","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"415 - 418"},"PeriodicalIF":0.9,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47365872","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}

{"title":"Esoteric decision-making: Judicial responses to the judicialisation of politics, the Constitutional Court and EFF II","authors":"Lauren Gildenhuys","doi":"10.1080/02587203.2021.1932566","DOIUrl":"https://doi.org/10.1080/02587203.2021.1932566","url":null,"abstract":"Abstract Esoteric decision-making refers to the express reliance on apolitical, technical and legal justifications to substantiate a judicial outcome that is preferred for political reasons, which remain unexpressed. Historically, the Constitutional Court has, in the face of highly political cases, relied on a number of esoteric decision-making techniques. These include prevailing on narrow or apolitical sources of law; using technical, formalist modes of reasoning; and exploiting the indeterminism of the separation of powers. Esoteric decision-making may be a necessary and justified judicial response to instances of the judicialisation of politics in order to protect the institutional security, independence and legitimacy of courts. However, when used ineptly, it risks inviting the institutional vulnerability that its use seeks to avoid. To illustrate this point, this paper discusses the majority judgment in EFF II and contrasts it to previous instances in which the Court has applied esoteric decision-making more successfully. Given the prevalence of the judicialisation of politics in South Africa, the Constitutional Court’s continued institutional legitimacy will depend on the careful and strategic application of esoteric decision-making in future cases.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"338 - 361"},"PeriodicalIF":0.9,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2021.1932566","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46535716","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}

{"title":"Designing remedies for a recalcitrant administration","authors":"G. Mukherjee, J. Tuovinen","doi":"10.1080/02587203.2021.1938660","DOIUrl":"https://doi.org/10.1080/02587203.2021.1938660","url":null,"abstract":"Abstract This article concerns remedial design by courts in cases where constitutional rights are jeopardised by a recalcitrant administration. We focus on the recent judgment of the South African Constitutional Court in Bhekindlela Mwelase v Director-General for the Department of Rural Development and Land Reform – in particular its doctrinal innovation in appointing a Special Master to oversee the processing of labour tenant claims by the Department of Rural Affairs and Land Reform. We argue that the case raises both conceptual and practical questions about the relationship between rights and remedies, substantive law, and the separation of powers. We approach these questions after considering the judgment in its socio-political context through a consideration of the factors underlying the granting of the remedy, from both a theoretical and comparative perspective. The paper identifies a set factors that underpinned the Court’s decision that will be likely to influence the granting of invasive remedies in future cases. We then apply these factors to the judgment of the Supreme Court of India in the Right to Food Case to better understand the ways they play out in a different jurisdictional context. These factors can provide doctrinal and normative guidance for courts – especially in the so-called Global South – that often operate under conditions of chronic recalcitrance, inattentiveness, inaction, or incompetence of the coordinate branches of government.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"386 - 409"},"PeriodicalIF":0.9,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2021.1938660","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46309109","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}

{"title":"Transparency: New trajectories in law","authors":"F. Adeleke","doi":"10.1080/02587203.2021.1934177","DOIUrl":"https://doi.org/10.1080/02587203.2021.1934177","url":null,"abstract":"","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"410 - 414"},"PeriodicalIF":0.9,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2021.1934177","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47042186","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}

{"title":"Revisiting the constitutionalisation of the common law of personality: transformative constitutionalism and Le Roux v Dey","authors":"C. Visser","doi":"10.1080/02587203.2020.1867482","DOIUrl":"https://doi.org/10.1080/02587203.2020.1867482","url":null,"abstract":"Abstract In this article, I broadly consider the constitutionalisation of the common law of personality from the perspective of the South African transformative constitutionalism paradigm. This interrogation is the result of the Constitutional Court’s judgment in Le Roux v Dey, which provides an ostensible alignment between the common law and the Constitution of the Republic of South Africa, 1996 in respect of the human personality. In this regard, I critique this judgment and show how it creates doctrinal, ideological, substantive and methodological barriers when one considers the common law’s actual constitutionalisation. These critiques follow from my argument that the constitutionalisation of the common law of personality ought to take place in terms of its doctrine, its underpinning ideology and resultant substance and method with reference to the overarching transformative paradigm. I argue that the constitutionalisation of the common law of personality should be revisited in terms of these considerations. At the end of this article, I attempt to demonstrate how these doctrinal, ideological and structural considerations ought to be addressed in mapping the way forward for the actual constitutionalisation of the common law of personality.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"242 - 260"},"PeriodicalIF":0.9,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2020.1867482","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42253997","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}

{"title":"Shaping legal and institutional pluralism: land rights, access to justice and citizenship in South Africa","authors":"J. Ubink, Jean Pickering","doi":"10.1080/02587203.2020.1867483","DOIUrl":"https://doi.org/10.1080/02587203.2020.1867483","url":null,"abstract":"Abstract In November 2019, South African President Cyril Ramaphosa signed the Traditional and Khoi-San Leadership Bill into law. The Act forms part of a broader package of recent laws and proposed legislation regulating traditional leadership, which have been strongly critiqued for undermining the property and citizenship rights of South Africans residing in the former homelands. The Act is most strongly contested for providing traditional councils with the power to conclude agreements with companies on behalf of their communities. Mining deals are at the forefront of this debate, and the site of this study. Combining literature study and legal analysis with unique data obtained through interviews and participant observation, this article analyses how the new shape of legal and institutional pluralism affects the rights, strategies and access to justice of rural people in mining areas. It shows how laws regulating traditional authority and mining together paint a veneer of legality over mining deals that in fact infringe on the land rights of rural citizens who, both according to customary law and the Interim Protection of Informal Land Rights Act, have a say regarding their own land. Their residence in so-called traditional communities impedes their enjoyment of the same effective political and property rights as the rest of South Africa’s population.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"178 - 199"},"PeriodicalIF":0.9,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2020.1867483","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45251357","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}

{"title":"Confronting apartheid: a personal history of South Africa, Namibia and palestine","authors":"Jeff Handmaker","doi":"10.1080/02587203.2020.1868098","DOIUrl":"https://doi.org/10.1080/02587203.2020.1868098","url":null,"abstract":"","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"275 - 279"},"PeriodicalIF":0.9,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2020.1868098","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44366384","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}

{"title":"Out of the shadows: towards a line between party and state in South African local government","authors":"M. Pieterse","doi":"10.1080/02587203.2020.1867481","DOIUrl":"https://doi.org/10.1080/02587203.2020.1867481","url":null,"abstract":"Abstract This article aims to show the need for a clearer wall between political parties and state institutions in South Africa. The focus is on local government level where, it is argued, the absence of a dividing line between legislative and executive functions exacerbates the anti-democratic effects of a party/state conflation. The usurpation of local governance functions by unaccountable party-political structures is argued to frustrate urban autonomy and thereby to undermine the federal elements of the constitutional system of cooperative governance, not least through re-centralising local authority in national or regional structures. This undermines participatory and developmental local governance and complicates the achievement of objectives such as the Sustainable Development Goals.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"131 - 153"},"PeriodicalIF":0.9,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2020.1867481","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47131167","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}