The horizontal application of the Bill of Rights: A reconciliation of sections 8 and 39 of the Constitution

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

The horizontal application of the Bill of Rights: A reconciliation of sections 8 and 39 of the Constitution

Authors Deeksha Bhana

ISSN: 1996-2126
Affiliations: Associate Professor of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 351 – 375

Abstract

Whilst the judiciary accepts that the Bill of Rights must apply horizontally, there remains considerable ambivalence about the precise interplay between the Bill of Rights and private law; an ambivalence that reveals itself in the debate about the extent to which, and the manner in which, our traditional system of private law should be constitutionalised. In this article, I revisit the South African concept of horizontality with a view to determining precisely how ss 8 and 39(2) of the Constitution envisage the constitutionalisation of private law. To date, the horizontality debate has focused largely on whether direct or indirect horizontal application is to be preferred, with s 8 generally being associated with direct horizontality and s 39(2) with indirect horizontality. I argue here that this position is flawed. In particular, I show that ss 8 and 39 of the Constitution largely transcend the direct-indirect horizontality debate. I then go on to explain the distinct roles that each sub-section is required to play if our courts effectively are to constitutionalise our private law.

Balancing the best interests of the child and the interests of society when sentencing youth offenders and primary caregivers in South Africa

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

Balancing the best interests of the child and the interests of society when sentencing youth offenders and primary caregivers in South Africa

Authors Admark Moyo

ISSN: 1996-2126
Affiliations: PhD candidate, University of Cape Town (UCT)
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 314 – 350

Abstract

In the context of sentencing children in conflict with the law, the need to balance the best interests of the child and the interests of society replays the ideological tension between the welfare model and the justice model of juvenile justice. The welfare model of juvenile justice emphasises the rehabilitation needs of the offender and the justice model stresses due process and accountability for one’s conduct. Yet, sentences imposed on many offenders usually carry elements of both models and there are indications that South Africa has adopted another emerging model of juvenile justice — the restorative justice model. Generally, the type of sentence to be meted out is determined by the nature and gravity of the offence; the circumstances of the offender; and the interests of society. This triadic method has been codified in the Child Justice Act as the criteria for determining sentences that balance the interests of the child and those of society. When sentencing primary caregivers, the courts are also required to balance the interests of society and the best interests of the child(ren) of the primary caregiver. In this instance, the courts should be mindful that it is not the child who has committed an offence, but an adult who has the capacity to understand the implications of his or her conduct for the social, moral, intellectual and physical development of their child. However, the bench is bound to ensure that the interests of the child are not severely negatively affected by the imposition of custodial sentences where other non-residential alternatives could be appropriate for the offence committed by the primary caregiver. In the two cases that were decided by the Constitutional Court, much turned on the availability or otherwise of other appropriate caregivers who were willing to take care of the children during their mothers’ incarceration.

Restoring the ‘historical deficit’: The exercise of the right to freedom of religion and culture in democratic South Africa

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

Restoring the ‘historical deficit’: The exercise of the right to freedom of religion and culture in democratic South Africa

Authors Patricia Michelle Lenaghan

ISSN: 1996-2126
Affiliations: Associate Professor, Department of Mercantile Law, University of the Western Cape (UWC)
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 294 – 313

Abstract

On 18 January 1960, LIFE magazine began a series of articles on democracy around the world. The newly independent nation of Ghana (1957) was featured in Part 1 and the cover photograph was of Augustus Molade Akiwumi, the Speaker of the House in Ghana, dressed in British-style wig and robes. The title of the feature article read, ‘Ghana’s Leap from Stone Age to Eager New Nationhood’. The feature explains that in Ghana ‘Courts are being built, and in lower courts the temporary local judges are being replaced with more qualified appointees to settle local disputes and initiate the people in the mechanics of Western justice’. However in stark contrast to the portrayal of pre-colonial Ghana as ‘Stone Age’ the Asanti peoples of Ghana developed a complex, hierarchical society and legal system centuries before Europeans ever arrived on the continent. In critical reflection of the magazine cover, this article is founded on demonstrating how the colonial, post-colonial, apartheid and post-apartheid state have through an oppressive stance suppressed indigenous religious and cultural diversity. In addition, it is asserted that the current constitutional arrangements have not at all times effectively dealt with this subjugation. It is presupposed that unless a positive approach towards religious and cultural integrity is displayed and an environment is created in which these rights to freedom of religion and culture may prosper, the constitutional endeavour of establishing unity and solidarity in our diverse society will remain elusive. In conclusion, some approaches to enhancing this constitutional endeavour are proffered.

The Traditional Courts Bill: A woman’s perspective

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

The Traditional Courts Bill: A woman’s perspective

Authors Jennifer Williams, Judith Klusener

ISSN: 1996-2126
Affiliations: Director, Women’s Legal Centre, Cape Town; Intern, Women’s Legal Centre, Cape Town
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 276 – 293

Abstract

The Traditional Courts Bill, should it become law, will intimately affect the daily lives of almost 17 million South Africans. The Bill seeks to give recognition to traditional leadership and its role in the dispensation of criminal and civil justice. Women form the majority of the rural population where the traditional courts predominantly function. Unfortunately, the Bill, as it currently stands, does not provide the necessary protection to the sector of the population that its implementation will affect the most — women. The Bill is ineffective in lending support to the progressive development that is occurring in customary law in relation to women. Furthermore, there are a number of areas (both civil and criminal) to which the court should not be extended jurisdiction, due to the patriarchal nature of the courts. Moreover, there is a distinct lack of checks on the power of traditional courts, a situation that is exacerbated because of a person’s inability to opt out of its jurisdiction. Women are particularly vulnerable to this all-inclusive power, as they form the majority of the rural population where traditional courts predominantly function.

Service delivery protests, struggle for rights and the failure of local democracy in South Africa and Uganda: Parallels and divergences

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

Service delivery protests, struggle for rights and the failure of local democracy in South Africa and Uganda: Parallels and divergences

Authors Christopher Mbazira

ISSN: 1996-2126
Affiliations: Bram Fischer Fellow (July to August 2012) and Visiting Associate Professor, Oliver Schreiner School of Law, University of Witwatersrand; Associate Professor & Coordinator, Public Interest Law Clinic, School of Law, Makerere University
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 251 – 275

Abstract

Although the two countries are thousands of miles apart, Uganda and South Africa have both experienced service delivery protests in recent years. The protests have been directed mainly at local governments, although in Uganda some are directed at private service providers such as the electricity distributor, Umeme. There are a number of parallels and divergences between the two countries, particularly in relation to the causes and the nature that the protests have taken. Both countries are experiencing challenges in implementing decentralisation, which has mainly been characterised by a failure to effectively involve local communities in decision-making as a way of effecting local democracy. Mismanagement, corruption, and incapacity to deliver at the local levels are common to both countries. The divergences relate mainly to the level of organisation, frequency and magnitude of the protests. The local government legal framework of Uganda does not emphasise service delivery as much as the South African legal framework does. There is an urgent need for both countries to make local democracy work by building civic competence and creating operational and effective structures for civic participation in local affairs.