Promoting rights through court-based ADR?

by | Oct 19, 2019 | SAJHR, SAJHR V28 I1

Promoting rights through court-based ADR?

Authors Laurence Boulle

ISSN: 1996-2126
Affiliations: Director of the Mandela Institute and Issy Wolfson Professor of Law, University of the Witwatersrand, Johannesburg
Source: South African Journal on Human Rights, Volume 28 Issue 1, 2012, p. 1 – 17

Abstract

This article examines the extent to which mediation and ADR can be used to modernise civil litigation in South Africa in line with comparable developments in other jurisdictions. It does so in the context of Amartya Sen’s theory of justice, based on individuals’ capacity to order their lives, and of contemporary access to justice notions relating to court procedures. Through a fictional case study on court-based ADR in a franchise dispute the article explores ways in which a regulatory framework can accommodate ADR in case management systems and delineates some of the institutional requirements for such an arrangement. It makes a proposal along these lines, and evaluates it in terms of Sen’s theory and other justice norms.

The right to basic sanitation: A human right in need of constitutional guarantee in Africa

by | Oct 19, 2019 | SAJHR, SAJHR V29 I3

The right to basic sanitation: A human right in need of constitutional guarantee in Africa

Authors Serges Djoyou Kamga

ISSN: 1996-2126
Affiliations: Researcher at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), a Centre of the University of Johannesburg
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 615 – 650

Abstract

In Africa, sanitation remains one of the most important developmental challenges that is not adequately addressed. In many countries, though sanitation is fundamental to human well-being, there is no recognition in the Constitution of a fundamental right to basic sanitation. Legislation and policies often govern the area and the question arises as to whether this offers sufficient protection for the interests involved. This article calls for an express constitutionalisation of the right to sanitation. This call is based first on the importance of the right; second, on the need to do justice to the historical context in many countries (with a particular focus on South Africa); third, for reasons related to a better enforcement of the right; and, fourth, because the prospect for successful monitoring by non-judicial bodies is enhanced. However, the article also recognises that it is unwise to meddle with the Bill of Rights of an existing constitution so to insert the right to sanitation expressly. In such situations, the right to sanitation can be recognised efficiently through developing the content of other rights that are expressly recognised. The article considers the link between the right to sanitation and a range of rights comprising the rights to housing, health, food, water, environment, education, freedom and security of persons, privacy and the right to life. The article concludes that sanitation deserves express recognition in constitutions, especially in countries undergoing constitutional reforms or adopting a new constitution.

The negative obligation of the housing right: An analysis of the duties to respect and protect

by | Oct 19, 2019 | SAJHR, SAJHR V29 I3

The negative obligation of the housing right: An analysis of the duties to respect and protect

Authors Michael Dafel

ISSN: 1996-2126
Affiliations: Researcher, South African Institute for Advanced Constitutional, Public, Human Rights, and International Law (SAIFAC), a Centre of the University of Johannesburg
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 591 – 614

Abstract

The extent to which non-state actors play a role in the realisation of socio-economic rights is a contentious issue. In South Africa, and in the context of housing rights, the Constitutional Court has, in part, employed the negative obligation of the s 26(1) right of access to adequate housing to define the role of non-state actors. Although the central feature of the negative obligation is to inhibit state and non-state actors from interfering with another’s housing resource, the negative obligation’s impact is far more complex. The court has utilised the three components of the negative obligation, namely the state’s duty to respect, the state’s duty to protect, and the non-state actor’s duty to respect to regulate the relations of non-state actors. First, the state’s duties require the establishment of a legal framework that allows for the judicial evaluation of competing private rights; and, second, the non-state actor’s duty, if it finds application, permits the courts to impose positive or financial obligations on non-state actors. This framework reveals that non-state actors are limited duty bearers and role-players in the realisation of another’s housing right.

The South African social housing sector: A critical comparative analysis

by | Oct 19, 2019 | SAJHR, SAJHR V29 I3

The South African social housing sector: A critical comparative analysis

Authors Sue-Mari Maass

ISSN: 1996-2126
Affiliations: Senior Lecturer, Department of Public, Constitutional and International Law, University of South Africa (UNISA)
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 571 – 590

Abstract

Tenure status is one of the core elements in the poverty cycle and insecurity of tenure exacerbates poverty. Policy-makers and the legislature should respond to this component of the poverty cycle through the introduction of secure housing options in order to ensure that all individuals can actively participate in society and live autonomous, dignified lives. In a number of jurisdictions, including Germany, the United States and England, legislatures have responded to the plight of the poor during emergency housing (and economic) conditions by introducing social housing sectors as part of the landlord-tenant framework. Key components of social housing is that it is a statutory mechanism that introduces affordable, secure housing options for the poor, which is provided by independent, private institutions and requires continuous state administration since the whole sector is state-driven. The South African social housing sector, which forms part of the landlord-tenant framework, is founded in the Social Housing Act. The operation and aims of the Act (and the current social housing sector, in general) requires critical analyses from a comparative law perspective. Innovative social housing options in the landlord-tenant framework are essential in contributing to the improvement of secure tenure rights for poor households and consequential eradication of poverty. Nevertheless, a paradigm shift regarding the contemporary use of rental housing to provide substantive tenure rights for poor tenants on private property is necessary at both public and private levels in order to, not only engage with this form of housing, but also identify plausible situations where it can be imposed.