ISSN: 1996-2126
Affiliations: Professor in the School of Law, University of the Witwatersrand, Johannesburg
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 379 – 400
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ISSN: 1996-2126
Affiliations: Yale University graduate student
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 357 – 378
This article begins by taking up the theoretical proximity between scholar and attorney Wilmien Wicomb’s conception, drawn from a hybrid of Derridean thought and cybernetic theory, of customary law within South Africa as a ‘complex system’, and the complexity theory of founding neoliberal legal thinker Friedrich Hayek, for whom cybernetic complexity theory was a substantial intellectual influence. Wicomb’s theoretical frame raises the question of the role the market plays and ought to play in the creation and maintenance of spaces within which customary law can function as an independent, constitutionally recognised source of law within South Africa. This question is of pressing importance at a moment when neoliberalism, understood as a mode of governance, is an active and harmful paradigm in the lives of members of customary communities, as well as in the legal culture more broadly, in South Africa, as an analysis of the legal norms present in South Africa’s ‘vision for 2030’, the National Development Plan, will demonstrate. Wicomb’s work, it is argued, offers an occasion for a critical rethinking of the status of customary law, its boundaries, and the kinds of legal institutions capable of responding to it at the contemporary legal moment in South Africa.
ISSN: 1996-2126
Affiliations: Mellon Early Research Career Fellow, SERAJ, Stellenbosch University
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 330 – 356
The realisation of socio-economic rights constitutes a critical prerequisite in the struggle to eradicate poverty and inequality in South Africa. State resource allocation lies at the heart of the realisation of socio-economic rights. Courts will often be called upon to adjudicate complex, polycentric prioritisation decisions taken by the state. An appropriate review paradigm can aid courts in performing this onerous task. Capabilities, as the substantive freedom to choose the lives we have reason to value, resonate strongly with the socio-economic rights enshrined in the Constitution of the Republic of South Africa, 1996. The capabilities approach can therefore be developed to constitute a capabilities-based standard of review for the adjudication of state resource allocation decisions. The need for such a theoretically justified standard of review becomes apparent from the Constitutional Court’s insufficient focus on the content of socio-economic rights, and from the maintenance of a rigid distinction between the positive and negative duties imposed upon the state by socio-economic rights.
ISSN: 1996-2126
Affiliations: Marie Curie International Incoming Fellow at University of Lincoln, UK; Marie Curie Intra-European Fellow at University of Lincoln, UK; Professor in Higher Education, University of Lincoln, UK & Docent Professor in the Faculty of Education at the University of Oulu, Finland
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 315 – 329
This article expounds the Composite Theory to define the parameters for the exercise of academic freedom in Africa, informed by its political, historical and cultural circumstances and expressed in the Dar es Salaam Declaration on Academic Freedom and Social Responsibility of Academics and the Kampala Declaration on Intellectual Freedom and Social Responsibility. This approach follows in the line of the Special Theory and General Theory postulated to justify the exercise and application of academic freedom in Germany and the United States of America, respectively. The Composite Theory contends that academic freedom in the African context should not only be seen in the narrow prism of protecting the rights of academics on and off the university campus. It includes a commitment to recognise and contribute to promoting the rights of other key actors in the academic freedom equation, to wit, students and the society as a fulfilment of the academic’s social responsibility. This role can be fulfilled both within and outside the university campus. Internally, academics shall respect students’ right to academic freedom and immerse knowledge-sharing in a democratic ethos. This approach will likely instil in the students respect for democracy, human rights and the rule of law, which they will carry away with them from the university into life within the society. Extramurally, equipped with their knowledge, skills and experience, African academics should take advantage of their privileged positions in society to leave their ivory towers and, where necessary, solidarise with other civil society actors to promote social transformation and human emancipation. This is the guaranteed way to protect academic freedom on the campuses.
ISSN: 1996-2126
Affiliations: Lecturer in law at the University of the Witwatersrand; Professor of law at the University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 294 – 314
Given the spatial and economic inequalities inherent to South African towns and cities, which have been exacerbated by recent waves of urbanisation, this article aims to situate the provision of public transport in South Africa within a rights-based framework. This involves both an acknowledgement of the geographical components of human rights and of the human rights impacts of policies pertaining to transport provision and regulation. Relying upon urban theory on the ‘right to the city’, we illustrate how public transport, while not the subject of an independent constitutional right, is central to accessing the objects of most constitutionally ensconced socio-economic rights, and is also an integral element of exercising various civil and political rights. Drawing from examples in contemporary Johannesburg, we accordingly argue that executive policy choices in relation to the provision and regulation of public transport should be assessed through a rights-based prism and should be subjected to dialogic interaction with the judiciary, within a substantive, rights-based understanding of mobility and urban accessibility.