Current Development and Case Note: The rhetoric of rape: An extended note on apologism, depoliticisation and the male gaze in Ndou v S

Current Development and Case Note: The rhetoric of rape: An extended note on apologism, depoliticisation and the male gaze in Ndou v S

Authors Joel M Modri

ISSN: 1996-2126
Affiliations: Researcher and Lecturer in Jurisprudence, Faculty of Law, University of Pretoria
Source: South African Journal on Human Rights, Volume 30 Issue 1, 2014, p. 134 – 158

Abstract

None

Domestic violence and gendered socio-economic rights: An agenda for research and activism?

Domestic violence and gendered socio-economic rights: An agenda for research and activism?

Authors Elsje Bonthuys

ISSN: 1996-2126
Affiliations: Professor of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 30 Issue 1, 2014, p. 111 – 133

Abstract

In South Africa, as elsewhere, intimate partner violence is legally addressed through a specific statute, the Domestic Violence Act. Although this legislation is progressive in recognising the socio-economic antecedents to and consequences of gendered violence, the implementation of the Act has been particularly ineffective in this area. Moreover, courts tend to assume that intimate partner violence would have been adequately dealt with in terms of the Act and thus to ignore its impact on other legal issues. This restricts the development of legal remedies for violence in other areas of the law, even as the remedies available under the Domestic Violence Act fail to be implemented. The South African Constitution is progressive in its commitment to gender equality, and also includes a wide range of socio-economic rights. Drawing on international literature, this article will focus on some of the socio-economic rights of the survivors of violence, such as rights to housing and employment, social security and health in order to shift the current paradigms of intimate partner violence, focused primarily on gender. It argues that such a shift can lead to a range of new remedies for survivors of gendered violence, whilst simultaneously strengthening the argument for improved implementation of the socio-economic elements already contained in the Act.

Extreme elective or cosmetic surgery and controversial patient choice: A Constitutional analysis

Extreme elective or cosmetic surgery and controversial patient choice: A Constitutional analysis

Authors Hanneke Verwey, Pieter A Carstens

ISSN: 1996-2126
Affiliations: MacRobert Attorneys, Department of Professional Indemnity Law; Department of Public Law, University of Pretoria
Source: South African Journal on Human Rights, Volume 30 Issue 1, 2014, p. 89 – 110

Abstract

The specific fundamental human rights protected in the Bill of Rights that come into play when patients make controversial requests for extreme forms of cosmetic surgery are discussed. The meaning of human dignity in South African constitutional law forms the focus of the first part of this article. By applying a constitutional conception of human dignity, the question is answered whether extreme forms of cosmetic surgery most likely promotes or impedes human dignity. In this regard, the relationship between autonomy and dignity and the question whether autonomous individuals should be prevented from participating in activities that might limit their dignity is addressed. The same enquiry is made concerning the other fundamental human rights that are applicable to extreme forms of cosmetic surgery. This includes the right to bodily integrity and the right to privacy. The limitation of these fundamental human rights in terms of s 36 of the Constitution is then addressed.

The South African common law and the Constitution: Revisiting horizontality

The South African common law and the Constitution: Revisiting horizontality

Authors Nick Friedman

ISSN: 1996-2126
Affiliations: DPhil Candidate, Faculty of Law, University of Oxford
Source: South African Journal on Human Rights, Volume 30 Issue 1, 2014, p. 63 – 88

Abstract

Despite an initial flurry of interest in the direct horizontality of human rights, the doctrine’s place in South African constitutional law is now accorded a diminishing importance in judgments and journals. I argue that this is a result of a misunderstanding, by both courts and academics, of what horizontality is for and how it works. Since direct horizontality, properly understood, is central to the coherent development of South Africa’s rights jurisprudence, I aim to reinvigorate debate about horizontality by offering a new and comprehensive account of its mechanics and purpose. The account turns on a distinction between ‘horizontality’ and ‘direct horizontal application’, the implications of which run counter to some of the most widely accepted views about the Constitution’s influence on the private law.

On considering alternative accommodation and the rights and needs of vulnerable people

On considering alternative accommodation and the rights and needs of vulnerable people

Authors Gustav Muller

ISSN: 1996-2126
Affiliations: Lecturer, Faculty of Law, Rhodes University
Source: South African Journal on Human Rights, Volume 30 Issue 1, 2014, p. 41 – 62

Abstract

Courts have recently been at pains to incorporate detailed descriptions of the squalid conditions that prevail in informal settlements and inner-city buildings that have been abandoned by their owners. It has also become customary for courts to include a detailed overview of the history of the occupation to highlight the daily struggles of these unlawful occupiers. Despite this acknowledgment of the realities of the accommodation of impoverished groups, the courts have continued to issue eviction orders that are sought in the name of health and safety considerations or development without any serious regard to the disastrous impact that the evictions and subsequent relocations to distant accommodation will have on the livelihoods of the unlawful occupiers. It is therefore regrettable that the courts do not use the social and historical context of the unlawful occupation that they narrate at the beginning of these judgments to craft context-sensitive eviction orders in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). This lack of real engagement with the intolerable conditions that unlawful occupiers live in significantly reduces the impact that the availability of alternative accommodation has as a consideration. This is furthermore at odds with the principle that courts should be reluctant to evict relatively settled occupiers unless it is satisfied that alternative accommodation is available. This article proposes an organising framework for considering the suitability of alternative accommodation as part of the just and equitable eviction order that a court must grant in terms of s 4(8) and (9) of PIE. This organising framework is based on the categories of people that PIE explicitly requires courts to have regard to in ss 4(7) and 6(3) when considering whether it is just and equitable to evict the unlawful occupiers.