Testamentary freedom versus testamentary duty: in search of a better balance

by | Sep 25, 2019 | ACTA, ACTA 2014

Testamentary freedom versus testamentary duty: in search of a better balance

Authors Karin Lehmann

ISSN: 1996-2088
Affiliations: Senior Lecturer, Faculty of Law, University of Cape Town
Source: Acta Juridica, 2014, p. 9 – 40

Abstract

This article has three objectives. The first is to demonstrate how restricted freedom of testation is in South Africa. The second is to provide a brief historical account of changing attitudes to freedom of testation in Roman, Roman-Dutch and English law, both in order to explain, and to serve as a counterpoint to, modern South African law. The third objective is to show that despite perceptions to the contrary, freedom of testation is in some senses arguably more restricted in South Africa than it is in our sister jurisdictions. These objectives have a common purpose. That purpose is to remind readers of the values that underpin freedom of testation and of the fact that it is difficult to design restrictions that promote the public interest in the ways intended, without also giving rise to unintended and undesirable consequences. The article sounds the caution that the existing and proposed restrictions may not be as reasonable, in an open and democratic society based on respect for human dignity, freedom and equality, as they first appear to be.

On the limits of cultural accommodation: KwaZulu-Natal MEC for Education v Pillay

by | Sep 25, 2019 | ACTA, ACTA 2015

On the limits of cultural accommodation: KwaZulu-Natal MEC for Education v Pillay

Authors Okyerebea Ampofo-Anti, Michael Bishop

ISSN: 1996-2088
Affiliations: Partner, Webber Wentzel; Attorney of the High Court of South Africa; Counsel, Constitutional Litigation Unit, Legal Resources Centre; Honorary Research Associate, University of Cape Town; Member of the Cape Bar
Source: Acta Juridica, 2015, p. 456 – 494

Abstract

In KwaZulu-Natal MEC for Education v Pillay, Chief Justice Langa held that it constituted unfair discrimination for a public school to prevent a learner from wearing a nose stud to school, because wearing the stud was a voluntary part of the learner’s religion and, more importantly, her culture. In this contribution we consider the limits of this type of cultural accommodation after Pillay by focusing on two questions: What types of beliefs and practices are "cultural"? And how should courts determine the burdens other must bear to accommodate cultural practices? First, we offer preliminary answers to three central questions that Pillay left unanswered: What is a culture? Who qualifies as a member of a culture? How do we determine which practices are part of a culture? Second, we discuss the role and meaning of "reasonable accommodation" and argue that Pillay mistakenly framed it as a balancing test between the interests of the learner and the school. In doing so, it obscured other important factors that should be considered.

Equality beyond dignity: Multi-dimensional equality and Justice Langa’s judgments

by | Sep 25, 2019 | ACTA, ACTA 2015

Equality beyond dignity: Multi-dimensional equality and Justice Langa’s judgments

Authors Catherine Albertyn, Sandra Fredman

ISSN: 1996-2088
Affiliations: Professor of Law, University of the Witwatersrand, Johannesburg; Attorney in the High Court of South Africa; Rhodes Professor of Laws of the British Commonwealth and the United States, University of Oxford
Source: Acta Juridica, 2015, p. 430 – 455

Abstract

The tendency for South African equality jurisprudence to reduce equality to a single value, namely dignity, has been much debated, especially around the relationship of dignity to disadvantage. In this article we argue for a multidimensional idea of equality that moves beyond a dignity/disadvantage paradigm to enable a fuller exploration of the complex harms and injuries that underlie equality claims, and greater elucidation of the multiple principles and purposes of equality. In particular, we argue that substantive equality should be understood in terms of a four-dimensional framework, which aims at addressing stigma, stereotyping, prejudice and violence; redressing socio-economic disadvantage; facilitating participation; and valuing and accommodating difference through structural change. We suggest that this enables a better exploration of the different principles that underlie equality and an open discussion of complementarities and tensions between them. We explore the benefits of this approach through an evaluation of three equality cases in which Justice Langa delivered the leading judgments. Although we do not claim that he fully adopted such an approach, we engage Justice Langa’s philosophy on equality as it emerges from these judgments, and evaluate the extent to which we can develop from this a more fully-fledged understanding of equality and its underlying values in the South African Constitution.

Constitutional protection of the right to privacy: The contribution of Chief Justice Langa to the law of search and seizure

by | Sep 25, 2019 | ACTA, ACTA 2015

Constitutional protection of the right to privacy: The contribution of Chief Justice Langa to the law of search and seizure

Authors Chuks Okpaluba

ISSN: 1996-2088
Affiliations: Adjunct Professor of Law, University of Fort Hare
Source: Acta Juridica, 2015, p. 407 – 429

Abstract

The right to privacy in s 14 of the Constitution includes the right not to have one’s person or home searched, one’s property searched, one’s possessions seized, or the privacy of one’s communications infringed. Chief Justice Langa wrote two landmark judgments of the Constitutional Court concerning constitutional protection of privacy in the context of search and seizure operations: Investigating Directorate: Serious Economic Offences v Hyundai Motors Distributors (Pty) Ltd concerning the constitutional validity of statutory provisions authorising the issue of search warrants to investigate serious crimes, and Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma and Another v National Director of Public Prosecutions, concerning the constitutional validity of applications for search warrants, their terms, and the manner of their execution. This contribution explains the significance of these judgments, placing them in the context of the common law and the Constitution’s protection of privacy more generally. In the final analysis, it becomes clear that Chief Justice Langa’s contributions to this branch of the law were enormous and his erudition epitomised clarity.