Feasibility constraints and human rights: Does ‘ought’ imply ‘can’?

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

Feasibility constraints and human rights: Does ‘ought’ imply ‘can’?

Authors Nick Ferreira

ISSN: 1996-2126
Affiliations: Research Fellow, University of the Witwatersrand Centre for Ethics
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 483 – 505

Abstract

Most theorists of human rights believe that human rights are subject to a feasibility constraint. But they tend not to say much about what such a constraint means, or its consequences for a theory of human rights. This lack of clarity has allowed feasibility to become a rhetorical weapon in the hands of conservatives who oppose egalitarian conceptions of human rights. I analyse the concept of a feasibility constraint and argue that a strict feasibility constraint over theories of human rights is not justified. Arguments against egalitarian conceptions of human rights that depend on such a feasibility constraint are therefore flawed.

The right to the residual liberty of a person in incarceration: Constitutional and common law perspectives

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

The right to the residual liberty of a person in incarceration: Constitutional and common law perspectives

Authors Chuks Okpaluba

ISSN: 1996-2126
Affiliations: Adjunct Professor, Nelson Mandela School of Law, University of Fort Hare
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 458 – 482

Abstract

To what extent does the law protect the liberty of a person in lawful incarceration? This question arises at the backdrop of the importance the common law and modern constitutions attach to the right to personal liberty. Simply put, does a prisoner enjoy the right to residual liberty under the constitutional and common law systems where the prison authorities have imposed restraints not permitted by the law authorising incarceration in the first instance? The answers to these questions elicit a sharp division. Canadian and South African courts operating a Charter of Rights and Freedoms and a Bill of Rights respectively have held that the right to residual liberty exists. Yet, in spite of the emphasis English courts place on the right to personal liberties, they deny the existence of the right to residual liberty of a prisoner. Recent cases from the now defunct House of Lords and the Court of Appeal show that actions for damages based on the violation of that right fail in English courts unless the plaintiff can link the alleged wrongful act to an existing tort. That notwithstanding, a plaintiff who bases his claim on the tort of false imprisonment is bound to fail but if he alleges misfeasance in public office and goes further to prove the high threshold of that tort, his action might succeed.

Land rights that come with cut-off dates: A comparative reflection on restitution, aboriginal title, and historical injustice

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

Land rights that come with cut-off dates: A comparative reflection on restitution, aboriginal title, and historical injustice

Authors Edward Cavanagh

ISSN: 1996-2126
Affiliations: Trillium Foundation Scholar, Faculty of History, University of Ottawa
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 437 – 457

Abstract

The doctrine of aboriginal title allows for a distinct form of redress, empowering communities to use the judiciary to take action against the state for foundational acts of historical dispossession. It has not taken root in South Africa, yet in other former settler colonies of the British Empire, it remains important to this day. This article interrogates history and law to explain why this is the case. Such an approach allows for a critical reflection on the system of land restitution that developed in South Africa instead of aboriginal title. By exploring the past and present realities of ‘dispossession’ in South Africa, this article discredits the inclusion of cut-off dates in the Restitution of Land Rights Act. These dates have discriminated between claimant communities irrationally and insensitively — even racially. History should not be mobilised in statute law to obstruct the pathway to redress. It should, instead, be used positively to restore the rights of those formerly dispossessed, and to preserve the rights of those facing dispossessions pending, in South Africa.

The colour of law, power and knowledge: Introducing critical race theory in (post-) apartheid South Africa

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

The colour of law, power and knowledge: Introducing critical race theory in (post-) apartheid South Africa

Authors Joel M Modiri

ISSN: 1996-2126
Affiliations: Researcher, Department of Jurisprudence, University of Pretoria
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 405 – 436

Abstract

Many legal scholars, practitioners and judges have overlooked the ways in which racial identities and hierarchies have been woven into social systems like law, labour, social power, knowledge and ideology. This article suggests that this oversight can be addressed by developing a post-apartheid critical race theory that puts ‘race’ back on the agenda by situating it within legal, political and social discourses. Such a critical race theory is proposed as an alternative to, and critique of, traditional (liberal/conservative) approaches to race and racism that emphasise individual autonomy, colour-blind constitutionalism and race-neutrality. Critical Race Theory (CRT) seeks to examine, from a legal perspective, the ways in which prevailing conceptions of race (and to some extent, culture and identity) perpetuate relations of domination, oppression and injustice. In South Africa, the necessity of such a critical engagement with race and law is justified by a long history of institutionalised white supremacy and white racial privilege which today coexists with ongoing (and lingering) forms of anti-black racism and racial exclusion. The starting point will be a broad discussion of competing approaches to race and racialism that inform equality jurisprudence and socio-political discourse followed by a theoretical discussion of the conceptual tools of US CRT and an analysis of post-1994 constitutional jurisprudence. The main aim is to problematise the contradictions and tensions that characterise South African equality jurisprudence and human rights discourses by exposing and critiquing the racial ideologies embedded in them. The broader concern of this article, however, is to point to the significance of critical race perspectives in South African legal and interdisciplinary thinking in a way that might disclose possibilities for racial justice and equality.

From consent to coercive circumstances: Rape law reform on trial

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

From consent to coercive circumstances: Rape law reform on trial

Authors Louise du Toit

ISSN: 1996-2126
Affiliations: Senior Lecturer in the Department of Philosophy, University of Stellenbosch
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 380 – 404

Abstract

When South Africa’s rape law of 1957 was amended in 2007, consent was retained as a key element in the definition of the crime of rape, in contrast with the Law Reform Commission’s recommendation that the criterion of consent be replaced with the notion of coercive circumstances that would determine whether an act of sexual penetration should be deemed prima facie unlawful. The most salient aspect of the reformed law is its ostensible gender neutrality. However, this apparent neutrality is belied by, firstly, the preamble’s mention of ‘vulnerable persons’, explicitly understood as women and children, whose protection against sexual violence forms a main focus of the reformed rape law, and secondly, by the law’s retention of the notion of consent whose meanings are deeply embedded in modernity’s contradictory view of women’s sexual autonomy. Instead of the current (consent) approach in rape law which assumes even as it undermines the sexual autonomy of persons classified as feminine, an approach should rather be adopted which focuses on the material and symbolic conditions of meaningful consent. By asking about the possibilities for dissent from and refusal of sexual advances, and by focusing on a range of coercive circumstances which would undermine such possibilities, rape law has a better chance of protecting those most vulnerable to sexual violence, because it would help to equally protect everybody’s conditions for sexual autonomy rather than assume such autonomy to be always already in place.

Procedural relief, constitutional citizenship and socio-economic rights as legitimate expectations

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

Procedural relief, constitutional citizenship and socio-economic rights as legitimate expectations

Authors Marius Pieterse

ISSN: 1996-2126
Affiliations: Professor of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 359 – 379

Abstract

It is often argued that the Constitutional Court adopts an ‘administrative law approach’ in deciding socio-economic rights matters. Following from this, this article considers the methodology inherent to the so-called ‘second wave’ of the Court’s socio-economic rights jurisprudence. It argues that several features of this methodology correspond to the logic and method inherent to the doctrine of legitimate expectation in South African administrative law. While welcoming the extent to which this method of adjudication appears to have deepened participative democracy and enhanced accountability in the formulation and implementation of socio-economic policy, the article also points to the limits inherent to the Court’s approach. First, as with the conventional application of the doctrine which it appears to reflect, the Court’s method appears capable of yielding only procedural relief. Secondly (and more worryingly), in reflecting the liberal foundations of the legal culture from which it was adapted, the method appears to hinge on a neo-liberal concept of market-citizenship, which foregrounds entrepreneurial conduct and individual payment for public services in deciding whether a particular socio-economic rights claim is worthy of vindication. The article therefore argues, first, for the modification of the Court’s approach so that it may be capable, in appropriate circumstances, of yielding more tangible relief and, secondly, for the realignment of the notion of citizenship informing the approach with the concept of social citizenship evident from a purposive reading of the Bill of Rights.

Case Note: Defences under the protection of State Information Bill: Justifications and the demands of certainty

by | Oct 19, 2019 | SAJHR, SAJHR V28 I2

Case Note: Defences under the protection of State Information Bill: Justifications and the demands of certainty

Authors James Grant

ISSN: 1996-2126
Affiliations: Advocate of the High Court of South Africa and Senior Lecturer, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 328 – 350

Abstract

None

Why courts should not sanction unfair discrimination in the private sphere: A reply

by | Oct 19, 2019 | SAJHR, SAJHR V28 I2

Why courts should not sanction unfair discrimination in the private sphere: A reply

Authors David Bilchitz

ISSN: 1996-2126
Affiliations: Associate Professor, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 296 – 315

Abstract

This article addresses the question as to whether religious associations should be granted an exemption from legal anti-discrimination provisions relating to their employment practices. It focuses on responding to criticisms mainly by Patrick Lenta of my position that, in general, no such exemptions should be granted. The key issues I address are the following. Firstly, I shall consider the relationship between South Africa’s particular context and the approach to be adopted towards interpreting and balancing fundamental rights in South African constitutional law. Secondly, I shall contend that religious associations do violate liberal reciprocity when seeking such an exemption and respond to Lenta’s argument in this regard. Thirdly, I shall consider the harms of discrimination by religious communities upon the equal citizenship of vulnerable groups and distinguish these from the distress caused by refusing members of religious associations exemptions from anti-discrimination legislation. Finally, I shall discuss the question of remedies and the possibilities they allow for encouraging religious associations to act in ways that are consonant with South Africa’s constitutional democracy.