Right after all: Reconsidering New National Party in the South African canon

by | Oct 17, 2019 | SAJHR, SAJHR V31 I1

Right after all: Reconsidering New National Party in the South African canon

Authors James Fowkes

ISSN: 1996-2126
Affiliations: Senior Researcher, Institute for International and Comparative Law in Africa, University of Pretoria
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 151 – 172

Abstract

No scholar currently defends the majority’s decision on voting rights in New National Party v Government of the Republic of South Africa. Its place in the South African canon is one of rejection: a classic mistake, or at least an illustration of the problems of excessive deference, technicality, and/or nervous political calculation. Against this, I argue that the decision is in fact eminently defensible. Its universal rejection is therefore very intriguing: why have so many scholars treated the decision as clearly wrong, and the dissent of O’Regan J as clearly right? One of the reasons is that the majority judgment of Yacoob J is standardly misread, in part because he, confronting issues that were brand new in 1999, uses terms other than those that would soon thereafter become settled in South African constitutional talk. But the deeper and more interesting reason is that currently dominant ways of understanding constitutionalism in South Africa — interlocking ideas about apartheid, about the ANC, about the Constitutional Court and about rights — prime us to view New National Party as a clear error. That it is not, in fact, a clear error, therefore, should lead us to reverse course and reconsider the canonical ideas that label it as such.

Considering the impact of amicus curiae participation on feminist litigation strategy

by | Oct 17, 2019 | SAJHR, SAJHR V31 I1

Considering the impact of amicus curiae participation on feminist litigation strategy

Authors Amanda Spies

ISSN: 1996-2126
Affiliations: Department of Public, Constitutional and International Law, College of Law, University of South Africa
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 136 – 150

Abstract

Amici curiae participation plays an important role in litigation and judicial decision-making. The public interest nature of these participations has become particularly important in representing the point of view of those who might be affected by a judgment which could influence the outcome of a decision. Employing amicus curiae participation as specific litigation strategy is of importance in promoting litigation from a feminist and gendered viewpoint allowing feminist method to be employed in constructing effective legal arguments.

Political rights since 1994 Focus: Closing the doors of justice: An examination of the Constitutional Court’s approach to direct access, 1995-2013

by | Oct 17, 2019 | SAJHR, SAJHR V31 I1

Political rights since 1994 Focus: Closing the doors of justice: An examination of the Constitutional Court’s approach to direct access, 1995-2013

Authors Jackie Dugard

ISSN: 1996-2126
Affiliations: Associate Professor, School of Law, University of the Witwatersrand; and Honorary Senior Researcher, Socio-Economic Rights Institute of South Africa (SERI)
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 112 – 135

Abstract

Across the developing world one of the structural mechanisms adopted to facilitate access to courts is enabling direct access to the highest court. Recognising the role that direct access can play to advance access to justice, the South African Constitution allows direct access to the Constitutional Court when it is in the interests of justice. Somewhat surprisingly given this formal acknowledgment of the potential public interest served through direct access, there has been no comprehensive analysis of the Constitutional Court’s direct access practice. This article fills this gap by evaluating — from a pro-poor perspective — the court’s approach to direct access. It does so by first outlining the applicable rules and principles governing direct access applications. It then examines the court’s direct access record between 1995 and 2013 highlighting that, in stark contrast to the highest courts in other developing countries, the South African Constitutional Court has interpreted its direct access mandate conservatively, seeking to restrict rather than to expand direct access. Thereafter, the article analyses the arguments against and for direct access, before concluding that the court’s conservative approach weakens its position in terms of popularising the Constitution and acting as an institutional voice for the poor.

Political rights since 1994 Focus: Are socio-economic rights a form of political rights?

by | Oct 17, 2019 | SAJHR, SAJHR V31 I1

Political rights since 1994 Focus: Are socio-economic rights a form of political rights?

Authors David Bilchitz

ISSN: 1996-2126
Affiliations: Professor, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC); and Secretary-General, International Association of Constitutional Law
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 86 – 111

Abstract

This article focuses on a particular problem in South Africa — and that has arisen in many developing democracies around the world — concerning the frequent failures of representative institutions adequately to represent and address the interests of the poor. It explores some of the underlying reasons that have been advanced to explain this phenomenon. The article then focuses on the recognition of fully justiciable socio-economic rights in many modern constitutions and contends that part of their raison d’etre is to offer one means of correcting the flaw in representative democracy that leads to the under-representation of the interests of the poor. The article then seeks to illustrate the political dimension of socio-economic rights through an analysis of some of the case law on the subject in South Africa. It concludes by reflecting on the manner in which, at least partially, socio-economic rights can be seen as a species of political rights and how this contributes further to breaking down the division between different classes of rights.

Political rights since 1994 Focus: The directly enforceable constitution: Political parties and the horizontal application of the Bill of Rights

by | Oct 17, 2019 | SAJHR, SAJHR V31 I1

Political rights since 1994 Focus: The directly enforceable constitution: Political parties and the horizontal application of the Bill of Rights

Authors Michael Dafel

ISSN: 1996-2126
Affiliations: Researcher, South African Institute for Advanced Constitutional, Public, Human Rights, and International Law, a Centre of the University of Johannesburg (SAIFAC)
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 56 – 85

Abstract

Ramakatsa v Magashule signifies the first time the Constitutional Court permitted an individual to base a cause of action against another non-state actor, in this case a political party, solely on the contents of a right entrenched in the Bill of Rights. In doing so, the court moved away from the development of the common law in terms of s 8 or s 39 (2) of the Constitution as the means to incorporate constitutional rights or values into the law that regulates the legal relationship between non-state actors, and, in effect, recognised a third methodological pathway through which fundamental rights applies horizontally between non-state actors. Following this seminal decision, it is necessary to modify South African constitutional theory on horizontal application to reflect the three means through which the Bill of Rights applies to private relations. It is also necessary to consider whether the new methodological pathway the court recognised in terms of s 172(1) of the Constitution may apply to other non-state actors.

Political rights since 1994 Focus: It’s my party (and I’ll do what I want to)?: Internal party democracy and section 19 of the South African Constitution

by | Oct 17, 2019 | SAJHR, SAJHR V31 I1

Political rights since 1994 Focus: It’s my party (and I’ll do what I want to)?: Internal party democracy and section 19 of the South African Constitution

Authors Pierre de Vos

ISSN: 1996-2126
Affiliations: Claude Leon Foundation Chair in Constitutional Governance, Department of Public Law, University of Cape Town
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 30 – 55

Abstract

South Africa’s democracy has both representative and participatory elements. The participatory aspect of democracy enhances the civic dignity of citizens by empowering them to take part in decisions that affect their lives. However, the overbearing role that political parties play in the South African democracy runs the risk of limiting the ability of citizens to participate effectively in decisions that impact on their lives. This is because the leaders of political parties (especially of governing parties) may wield enormous power and influence inside their respective parties and in the legislature and executive. Where the ordinary members of parties have little or no direct say about the formulation of the policies of the party they belong to or the election of its leaders or those who will stand for election as public representatives at national and provincial level, the ability of such members to participate in democratic processes and decisions are limited. To facilitate the participation of party members in the activities of a political party to ensure the enhancement of their civic dignity s 19(1)(b) of the Constitution guarantees the right of every citizen freely to make political choices, including the right to participate in the activities of, or recruit members for, a political party. In Ramakatsa v Magashule the majority of the Constitutional Court affirmed the importance of the right of party members to participate freely in the activities of the political party they belong to and also found that the constitutions of political parties have to ensure this happens. Provisions of a political party’s constitution can be declared invalid if it fails to comply with the provisions of the Bill of Rights (including s 19(1)(b)). This article contends that Ramakatsa can be interpreted to place a positive duty on the legislature to pass a ‘party law’ that sets minimum requirements to protect the democratic participation of party members in the activities of the party — including about the formulation of party policies, the election of party office bearers and the selection of the party’s candidates for election as public representatives.