Victor, Victoria or V? A constitutional perspective on transsexuality and transgenderism

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

Victor, Victoria or V? A constitutional perspective on transsexuality and transgenderism

Authors Cornelius Visser, Elizabeth Picarra

ISSN: 1996-2126
Affiliations: Lecturer in Delict, Law of Negotiable Instruments and Banking Law, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 506 – 531

Abstract

The human experience is informed by the sex assigned to an individual at birth, either as a male or female, and societal perceptions attached to sex and gender. However, this basic premise does not hold true for those individuals who do not develop from their assigned sex such as transsexual and transgendered individuals. South African law, as informed by the Constitution, has comparatively developed extensively regarding the accommodation of the ‘transsexual experience’ and allows post-operative transsexual and transgendered individuals to change their assigned sex in terms of the Alteration of Sex Description and Sex Status Act 49 of 2003 and the Births and Deaths Registration Act 51 of 1992. However, this legal framework is based on prevailing gender stereotypes and constructs that conflate the notions of sex, gender and sexual orientation. As such, the current legal framework does not allow pre-operative transsexual and transgendered individuals to change their assigned sex, which is arguably discriminatory and inconsistent with the Constitution. This framework ignores the valid reasons of individuals not choosing to undergo invasive ‘sex change’ operations and can therefore be challenged on a myriad of constitutional guarantees. It is doubted, however, whether any future laws will meet these individuals’ needs unless there is a clearer understanding of the concepts of sex, gender and sexual orientation and their interaction with each other. It is proposed that the application of Francisco Valdez’s eight-point strategy to dissipate these conflations in law would lead possibly to the elimination of existing legal discriminations.

Feasibility constraints and human rights: Does ‘ought’ imply ‘can’?

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

Feasibility constraints and human rights: Does ‘ought’ imply ‘can’?

Authors Nick Ferreira

ISSN: 1996-2126
Affiliations: Research Fellow, University of the Witwatersrand Centre for Ethics
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 483 – 505

Abstract

Most theorists of human rights believe that human rights are subject to a feasibility constraint. But they tend not to say much about what such a constraint means, or its consequences for a theory of human rights. This lack of clarity has allowed feasibility to become a rhetorical weapon in the hands of conservatives who oppose egalitarian conceptions of human rights. I analyse the concept of a feasibility constraint and argue that a strict feasibility constraint over theories of human rights is not justified. Arguments against egalitarian conceptions of human rights that depend on such a feasibility constraint are therefore flawed.

The right to the residual liberty of a person in incarceration: Constitutional and common law perspectives

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

The right to the residual liberty of a person in incarceration: Constitutional and common law perspectives

Authors Chuks Okpaluba

ISSN: 1996-2126
Affiliations: Adjunct Professor, Nelson Mandela School of Law, University of Fort Hare
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 458 – 482

Abstract

To what extent does the law protect the liberty of a person in lawful incarceration? This question arises at the backdrop of the importance the common law and modern constitutions attach to the right to personal liberty. Simply put, does a prisoner enjoy the right to residual liberty under the constitutional and common law systems where the prison authorities have imposed restraints not permitted by the law authorising incarceration in the first instance? The answers to these questions elicit a sharp division. Canadian and South African courts operating a Charter of Rights and Freedoms and a Bill of Rights respectively have held that the right to residual liberty exists. Yet, in spite of the emphasis English courts place on the right to personal liberties, they deny the existence of the right to residual liberty of a prisoner. Recent cases from the now defunct House of Lords and the Court of Appeal show that actions for damages based on the violation of that right fail in English courts unless the plaintiff can link the alleged wrongful act to an existing tort. That notwithstanding, a plaintiff who bases his claim on the tort of false imprisonment is bound to fail but if he alleges misfeasance in public office and goes further to prove the high threshold of that tort, his action might succeed.

Land rights that come with cut-off dates: A comparative reflection on restitution, aboriginal title, and historical injustice

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

Land rights that come with cut-off dates: A comparative reflection on restitution, aboriginal title, and historical injustice

Authors Edward Cavanagh

ISSN: 1996-2126
Affiliations: Trillium Foundation Scholar, Faculty of History, University of Ottawa
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 437 – 457

Abstract

The doctrine of aboriginal title allows for a distinct form of redress, empowering communities to use the judiciary to take action against the state for foundational acts of historical dispossession. It has not taken root in South Africa, yet in other former settler colonies of the British Empire, it remains important to this day. This article interrogates history and law to explain why this is the case. Such an approach allows for a critical reflection on the system of land restitution that developed in South Africa instead of aboriginal title. By exploring the past and present realities of ‘dispossession’ in South Africa, this article discredits the inclusion of cut-off dates in the Restitution of Land Rights Act. These dates have discriminated between claimant communities irrationally and insensitively — even racially. History should not be mobilised in statute law to obstruct the pathway to redress. It should, instead, be used positively to restore the rights of those formerly dispossessed, and to preserve the rights of those facing dispossessions pending, in South Africa.

The colour of law, power and knowledge: Introducing critical race theory in (post-) apartheid South Africa

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

The colour of law, power and knowledge: Introducing critical race theory in (post-) apartheid South Africa

Authors Joel M Modiri

ISSN: 1996-2126
Affiliations: Researcher, Department of Jurisprudence, University of Pretoria
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 405 – 436

Abstract

Many legal scholars, practitioners and judges have overlooked the ways in which racial identities and hierarchies have been woven into social systems like law, labour, social power, knowledge and ideology. This article suggests that this oversight can be addressed by developing a post-apartheid critical race theory that puts ‘race’ back on the agenda by situating it within legal, political and social discourses. Such a critical race theory is proposed as an alternative to, and critique of, traditional (liberal/conservative) approaches to race and racism that emphasise individual autonomy, colour-blind constitutionalism and race-neutrality. Critical Race Theory (CRT) seeks to examine, from a legal perspective, the ways in which prevailing conceptions of race (and to some extent, culture and identity) perpetuate relations of domination, oppression and injustice. In South Africa, the necessity of such a critical engagement with race and law is justified by a long history of institutionalised white supremacy and white racial privilege which today coexists with ongoing (and lingering) forms of anti-black racism and racial exclusion. The starting point will be a broad discussion of competing approaches to race and racialism that inform equality jurisprudence and socio-political discourse followed by a theoretical discussion of the conceptual tools of US CRT and an analysis of post-1994 constitutional jurisprudence. The main aim is to problematise the contradictions and tensions that characterise South African equality jurisprudence and human rights discourses by exposing and critiquing the racial ideologies embedded in them. The broader concern of this article, however, is to point to the significance of critical race perspectives in South African legal and interdisciplinary thinking in a way that might disclose possibilities for racial justice and equality.