Remnants of apartheid common law justice: The primacy of the spirit, purport and objects of the Bills of Rights for developing the common law and bringing horizontal rights to fruition

Remnants of apartheid common law justice: The primacy of the spirit, purport and objects of the Bills of Rights for developing the common law and bringing horizontal rights to fruition

Authors Christopher Roederer

ISSN: 1996-2126
Affiliations: Professor of Law, Florida Coastal School of Law and Honorary Senior Research Fellow, University of the Witwatersrand School of Law
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 219 – 250

Abstract

The Constitutional Court in Carmichele was correct to hold that ‘[where] the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation’. Anton Fagan’s argument that this is false is flawed because he misquotes, misrepresents and misunderstands the Court’s argument. Further, Fagan’s argument that the spirit, purport and objects of the Bill of Rights is merely a secondary reason for developing the common law that can be trumped by the individual moral views of judges, is also flawed. It is based on a mischaracterisation of the Hart-Fuller debate that is both unconvincing and inappropriate. Both he and Stuart Woolman are incorrect to elevate rights over the spirit, purport and objects of the Bill of Rights. The s 39(2) approach to developing the common law does not make the Bill of Rights vanish; rather, it provides a mechanism for bringing horizontal rights to fruition. Finally, s 39(2) is not merely a mechanism for achieving coherence, it is a mechanism for achieving a coherent and just legal system that is superior to Fagan’s preferred mechanism of leaving justice up to the individual moral convictions of judges.

Sugar, spice and criminalised consent: A feminist perspective of the legal framework regulating teenage sexuality in South Africa

Sugar, spice and criminalised consent: A feminist perspective of the legal framework regulating teenage sexuality in South Africa

Authors Deborah Brand

ISSN: 1996-2126
Affiliations: Senior Research and Teaching Associate: Public Law, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 193 – 218

Abstract

In South Africa, the legislative framework regulating teenage sexuality is driven by historically established norms of sexual innocence and therefore, adopts a protectionist approach to sexual activity between teenagers which, from a feminist perspective, has a disproportionate impact on teenage girls. Teenage girls walk a particularly thin line between sexual desire and activity. Their existence is also compounded by an environment of violence, poverty and disease as well as the stigmatisation of the sexuality of women and young people. This context of discontinuity and conflict is reflected in the law. Sections 15(2) and 16(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 criminalises sexual activity in the 12 to 16 age group, even in circumstances where sex is consensual and mutually-desired. By failing to differentiate between harmful and mutually-desired sexual activity (or in some circumstances mere physical contact), the 2007 Sexual Offences Act stifles opportunities to develop girls’ sexual autonomy. The statutory offences and punishment are also out of touch with provisions in the Children’s Act and the Choice of Termination of Pregnancy Act that secure access to information, contraceptives and the reproductive rights of teenagers. Rather than NDPP-ordered sex education, the legal framework should be aimed at developing sexual autonomy through creative, effective and government-supported intervention programmes based on education and access to information about sexuality and reproductive health care.

Current Development: Qwasha! Climate justice community dialogues compilation vol 1: Voices from the streets

Current Development: Qwasha! Climate justice community dialogues compilation vol 1: Voices from the streets

Authors Molefi Mafereka Ndlovu

ISSN: 1996-2126
Affiliations: University of KwaZulu-Natal (UKZN), School of Built Environment and Development Studies
Source: South African Journal on Human Rights, Volume 29 Issue 1, 2013, p. 180 – 191

Abstract

None

Payment for Ecosystem Services versus ecological reparations: The ‘Green Economy’, litigation and a redistributive eco-debt grant

Payment for Ecosystem Services versus ecological reparations: The ‘Green Economy’, litigation and a redistributive eco-debt grant

Authors Khadija Sharife, Patrick Bond

ISSN: 1996-2126
Affiliations: Post-graduate law student, investigative journalist, Africa Fellow at the World Policy Institute, and commissioning editor at the Forum for African Investigative Reporters (FAIR); coordinator of the South African branch of the Environmental Justice Organisations, Trade and Liabilities (EJOLT) initiative, University of KwaZulu-Natal Centre for Civil Society (CCS); School of Built Environment and Development Studies, University of KwaZulu-Natal Centre for Civil Society (CCS)
Source: South African Journal on Human Rights, Volume 29 Issue 1, 2013, p. 144 – 169

Abstract

Since the December 2011 United Nations Framework Convention on Climate Change Conference of the Parties 17 in Durban and the Rio+20 Summit on Sustainable Development, attention has turned to whether the ‘Green Economy’, the concept of ‘natural capital’ and ‘Payment for Ecosystem Services’ together facilitate the management of new environmentally-financialised markets whose aim is to price nature and its pollution, so as to achieve maximally efficient exploitation of resources (an example of which is carbon trading). Alternatively, if there are flaws in such markets, should society instead move towards retributive payments for ‘ecological debt’ based on both ‘loss and damage’ accounting (introduced at the UNFCCC COP18 in Doha) and environmental justice, in order that the valuing of nature is limited to fines for damages and then prohibitions on further pollution. These two countervailing philosophies play out in high-profile projects and pilot social-policy schemes in southern Africa, in ways that will teach the world foundational concepts surrounding ecological reparations.