Substantive equality for disabled learners in state provision of basic education: A commentary on Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa

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

Substantive equality for disabled learners in state provision of basic education: A commentary on Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa

Authors Charles Ngwena, Loot Pretorius

ISSN: 1996-2126
Affiliations: Professor of Law, University of the Free State
Source: South African Journal on Human Rights, Volume 28 Issue 1, 2012, p. 81 – 115

Abstract

Disabled learners are a protected group with rights to equality and basic education under the Constitution. Taking substantive equality and the right to basic education seriously requires the state, especially, to commit significant resources and take positive measures to ensure that the education system adequately accommodates the needs of disabled learners. However, the historical exclusion and marginalisation of disabled people from the education system, the finite nature of economic resources and the fact that socio-economic rights are generally realisable incrementally, can easily provide the state with excuses rather than valid justifications for not meeting the learning needs of disabled learners. This is even more so, if disability is understood as something intrinsic to the disabled learner rather than something that also implicates the larger education system and socio-economic environment. The aim of this article is two-fold. Firstly, it uses the decision of the Western Cape High Court in Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa (2010) as an opportunity for interrogating the relationship between substantive equality and socio-economic rights as well as the relationship between the state and its obligations towards private ‘partners’ in the discharge of its socio-economic obligations through the use of so-called state ‘subsidies’. Secondly, and more broadly, the article uses the education policy that was challenged in Western Cape Forum to highlight that disability is a severe site of discrimination. Even in post-apartheid South Africa, where the Constitution protects the equality rights of disabled people, it is easy for state policy that claims to be advancing a transformative agenda to paradoxically become an instrument for giving legitimacy to a disabling discourse. Ultimately, it is argued that when dealing with disability, equality jurisprudence needs a transformative theory of difference in order to guarantee inclusive citizenship.

Law students and freedom of expression: An empirical case study

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

Law students and freedom of expression: An empirical case study

Authors Victoria Bronstein, Daryl Glaser, Merle Werbeloff

ISSN: 1996-2126
Affiliations: University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 28 Issue 1, 2012, p. 55 – 80

Abstract

Against a background of rhetorical and potential legal assaults on freedom of information and media freedom in South Africa, the authors set out to investigate levels of support for freedom of expression amongst law students at the University of the Witwatersrand. The findings were mixed, with evidence that students strongly support generic pro-freedom of expression statements but that their support buckles when confronted with hard cases, such as satirical Zapiro cartoons. While students give weak support to political freedom of expression directed at the government, they are outrightly hostile to citizen-on-citizen offensive speech, many being willing to contemplate bans. Final-year students show up as somewhat more supportive of political freedom of expression than first-year students, while white students across both years are somewhat more supportive of freedom of expression than black students. There is however considerable diversity of views amongst black students and some evidence that racial differences in support for freedom of expression are influenced by attitudes to the current government. The results add to other evidence suggesting that supporters of freedom of expression in South Africa may not be able to call upon consistent or robust elite and popular support in resisting repressive government moves.

Autologous stem cell therapy: An analysis of the South African regulatory regime

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

Autologous stem cell therapy: An analysis of the South African regulatory regime

Authors Donrich W Jordaan

ISSN: 1996-2126
Affiliations: Co-founder and managing director of Sylvean Biotech; Research Associate, Intellectual Property Law Research Unit, University of Cape Town
Source: South African Journal on Human Rights, Volume 28 Issue 1, 2012, p. 31 – 54

Abstract

This article analyses the regulation of autologous stem cell (ASC) therapy in South Africa. The analysis is structured in three parts: In the first part of the analysis it is argued that ASC preparations qualify qua registrable medicine in the subclass of biological medicine within the regulatory framework established by the Medicines and Related Substances Control Act (Medicines Act). In the second part of the analysis it is argued that ASC therapy is indeed subject to regulation, primarily in terms of the regulatory framework established by the Medicines Act that effectively requires an ASC therapy to pass the rigorous test of clinical trials before it may be prescribed or supplied to a patient. It is further argued that there exist various layers of additional regulatory rules — some from the regulatory framework established by the Medicines Act and some from the regulatory framework established by the Human Tissue Act — pertaining to the harvesting, storage and preparation activities of the ASC therapy process. In the third part of the analysis a possible human rights challenge to the regulation of ASC therapy is explored: an argument is developed that employs the right to control one’s own body to argue for special exemption of ASC therapy based on its autologous nature that differentiates it from mass-produced medicine. With reference to case law, it is argued that such challenge will fail. Finally, it is argued that the system of clinical trials that is core to the current regulation of medicine in general and ASC therapy in particular is aligned with human dignity. It is therefore concluded that ASC therapy is not only comprehensively regulated in South Africa, but also that the current regulatory regime is for the public good and aligned with our country’s commitment to human rights.

Towards an ethical relation to the nonhuman other: Deconstruction, veganism and the law

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

Towards an ethical relation to the nonhuman other: Deconstruction, veganism and the law

Authors Jan-Harm De Villiers

ISSN: 1996-2126
Affiliations: University of Pretoria
Source: South African Journal on Human Rights, Volume 28 Issue 1, 2012, p. 18 – 30

Abstract

This article explores the ethical significance of deconstruction for law and advances veganism as a form of deconstruction that exposes and resists the anthropocentric character of social and legal configurations. The article engages with Jacques Derrida’s project of deconstructing the (human) subject and draws on Drucilla Cornell’s reconception of deconstruction as the philosophy of the limit. By examining the philosophical foundations of justice and deconstruction, the article exposes justice as the limit to a system of law and investigates the capacity of deconstruction to advance the ethical relation (to the nonhuman Other).

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.

Developing the law of joinder in the context of evictions of people from their homes

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

Developing the law of joinder in the context of evictions of people from their homes

Authors Gustav Muller, Sandra Liebenberg

ISSN: 1996-2126
Affiliations: Lecturer, Faculty of Law, Rhodes University; Professor and HF Oppenheimer Chair in Human Rights Law, Faculty of Law, Stellenbosch University
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 554 – 570

Abstract

There are circumstances in which it is essential to join a party because of the interest that party has in the matter. The underlying principle is that interested parties should be afforded an opportunity to be heard in matters in which it has a direct and substantial interest. Applications for the eviction of unlawful occupiers from private land in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) has been framed in a particular manner since 2004 that created a ‘stalemate’ between the rights of private owners and the rights of unlawful occupiers. The only way to move beyond the stalemate is to join the municipality in whose jurisdiction the land falls. However, the high courts, in a series of six reported judgments, have not adopted a uniform approach in their reasoning for this joinder. They have relied on a combination of arguments founded on the cumulative force of the notice requirement in s 4(2) of PIE, the requirement to attempt mediation in s 7(1) of PIE, and finally, the constitutional and statutory obligations of municipalities. The overall impact of this reasoning is not convincing. This article revisits the legal framework that the Supreme Court of Appeal and the Constitutional Court have employed in the five judgments it handed down on the issue of joinder in PIE eviction cases. In so doing this article identities more clearly the constitutive requirements for necessary joinder within a constitutional matrix. The directness of the interest will be explored with reference to the statutory obligations that flow from the Housing Act 107 of 1997 and the Local Government: Municipal Systems Act 32 of 2000. The substantial nature of the interest will be explored with reference to the filing of reports flowing from the joinder.