Sale in execution of mortgaged homes may not result in arbitrary deprivation of property

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

Sale in execution of mortgaged homes may not result in arbitrary deprivation of property

Authors Reghard Brits

ISSN: 1996-2126
Affiliations: Postdoctoral Fellow, South African Research Chair in Property Law, Stellenbosch University
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 536 – 553

Abstract

The sale in execution of immovable residential property amounts to a deprivation of property in terms of s 25(1) of the Constitution. Since no law may permit arbitrary deprivation of property, it is necessary to ensure that the law of mortgage foreclosure also avoids this unconstitutional result. The principle is that a deprivation of property will be arbitrary if there is ‘no sufficient reason’ for such an interference with a debtor’s property. If residential property is sold in execution despite the fact that there are alternative ways to achieve the mortgagee’s purpose (namely, debt enforcement), the resultant deprivation will be arbitrary, since there is no sufficient nexus between the purpose of the deprivation and the effect that it has on the individual debtor. The need to scrutinise mortgage foreclosures on a case-by-case basis is especially important in the poverty and justice context, since the forced sale of and eventual eviction from the home will often cause or exacerbate the debtor’s socio-economic hardship. Based on the subsidiarity principles, it is argued that the requirements of s 25(1) can be fulfilled through the correct interpretation and application of the National Credit Act’s debt relief mechanisms — especially debt rearrangement — to the degree that they serve as viable alternatives to sales in execution.

Lived experiences of the choice on termination of Pregnancy Act 92 of 1996: Bridging the gap for women in need

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

Lived experiences of the choice on termination of Pregnancy Act 92 of 1996: Bridging the gap for women in need

Authors Camilla Pickles

ISSN: 1996-2126
Affiliations: LLD candidate and Academic Assistant at the Centre for Child Law, Department of Private Law, University of Pretoria
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 515 – 535

Abstract

The Choice on Termination of Pregnancy Act 92 of 1996 embodies a laudable and liberal ideal, namely that the course of a woman’s life does not have to be determined by her reproductive capacity. Instead, she has the right to free, non-therapeutic termination of pregnancy in a safe environment, a right which exists up to the end of the second trimester. Dignity, equality, and security of the person are therefore the foundation stones of the right. However, this is not the case for women with limited means who have no choice but to rely on the public provision of termination-of-pregnancy services. Studies of women’s lived experiences of the implementation of the Act show that there are barriers to accessing termination-of-pregnancy procedures that need to be removed if they are to enjoy this right fully. Not least of these barriers is the state’s failure to fulfil its s 27 obligations in terms of the Constitution of the Republic of South Africa, 1996, as well as its far-reaching inaction in engaging with the implementation of the Act. Numerous other barriers exist at the provider and community level. Only through the removal of such barriers and with the state’s fulfilment of its obligations will it be possible to translate the provisions of the Act into their envisaged implementation, thus guaranteeing all women in South Africa (regardless of socio-economic standing) the right to safe and quality termination of pregnancy that is accompanied by dignity, equality and security of the person.

When moral outrage determines a legal response: Surrogacy as labour

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

When moral outrage determines a legal response: Surrogacy as labour

Authors Caroline Nicholson

ISSN: 1996-2126
Affiliations: Department of Jurisprudence, Faculty of Law, University of Pretoria
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 496 – 514

Abstract

Surrogacy is a complex issue that evokes a strong moralistic response. In South Africa, commercial surrogacy is illegal and surrogacy agreements that contain financial incentives beyond expenses associated with the pregnancy and birth are unenforceable. Despite this, commercial surrogacy appears to remain a reality in South Africa. Further, given the pervasive poverty that exists in the country, the question arises, should commercial surrogacy be permitted as a means to alleviate the dire circumstances of poverty-stricken women and those dependent on them. I seek to answer this question by taking a close look at the nature of surrogacy, some of the arguments for and against it, and the Indian model of commercial surrogacy as a potential model for commercial surrogacy in South Africa.

The role of administrative law in enforcing socio-economic rights: Revisiting Joseph

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

The role of administrative law in enforcing socio-economic rights: Revisiting Joseph

Authors Melanie Murcott

ISSN: 1996-2126
Affiliations: Lecturer, Department of Public Law, University of Pretoria
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 481 – 495

Abstract

Joseph v City of Johannesburg has been both applauded by administrative lawyers, as a case in which formalism was rejected and a substantive model of administrative law adjudication was embraced, and condemned by human rights lawyers, as a case that focused on procedural fairness rather than ‘the hard rights of citizens and their plight’. I argue that because Joseph concerned a group of poor and vulnerable occupiers of an inner-city building deprived of their electricity, resulting in an inability to meet their basic needs: to cook, refrigerate their food, heat their homes, do homework, operate medical equipment, etc, Joseph is primarily a socio-economic rights case in which a requirement of the administrative law, procedural fairness, was invoked so as to protect and enforce a right to electricity. I critique the administrative law strategy invoked on behalf of the occupiers in Joseph to enforce the occupiers’ claim to have their electricity reconnected; the courts’ treatment of that strategy; and whether it is an effective and, if so, desirable tool for the enforcement of socio-economic rights in the future.

Of Dorothy’s dog, ‘poststructural’ fairy tales … and the real: Power, Poverty and the General Principles of the South African Law of Contract

by | Oct 18, 2019 | SAJHR, SAJHR V29 I3

Of Dorothy’s dog, ‘poststructural’ fairy tales … and the real: Power, Poverty and the General Principles of the South African Law of Contract

Authors Jaco Barnard-Naudé

ISSN: 1996-2126
Affiliations: Professor, Department of Private Law, University of Cape Town
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 467 – 480

Abstract

South African precedent does not allow for the consideration of the validity or enforceability of a contract in terms of the good faith principle. Yet, the principle of good faith permeates the foundational ideals and the spirit of South Africa’s post-apartheid Constitution. After re-emphasising the by now trite point that all legal rules have distributive consequences and that the common law represents a set of political choices, the article discusses the philosophical history of good faith and defends it as the primary transformative ethical device of the general principles of contract law, arguing that an elevated status for good faith in contract is implicit in the post-liberal reading of the Constitution and the ills that such a reading seeks to address. With reference to the work of Michel Foucault, the article concludes that curial consideration of the question whether a party to a contract has abused her bargaining power, forms a critical part of the transformative work that contract law is (also) constitutionally mandated to do.

In defence of the right of religious associations to discriminate: A reply to Bilchitz and De Freitas

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

In defence of the right of religious associations to discriminate: A reply to Bilchitz and De Freitas

Authors Patrick Lenta

ISSN: 1996-2126
Affiliations: Associate Professor, School of Philosophy and Ethics, University of KwaZulu-Natal
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 429 – 447

Abstract

In a recent Special Issue of the South African Journal on Human Rights (SAJHR) devoted to the theme ‘religion and human rights’, David Bilchitz and Shaun de Freitas reply to arguments advanced by me in support of according religious associations a right to discriminate on grounds such as gender, sexual orientation and race in their employment practices relating to positions sufficiently close to the religion’s doctrinal core. Bilchitz continues to think that I allow too much discrimination on the part of religious associations. He rehearses arguments in defence of his view that religious associations should not be allowed to discriminate in employment practices on otherwise prohibited grounds and presses new objections to the position I favour. By contrast, De Freitas is of the view that I do not afford religious associations enough opportunity to discriminate. Between them, Bilchitz and De Freitas charge that I ‘owe’ several arguments. I offer here a final reply to Bilchitz and De Freitas in defence of the right of religious associations to discriminate, as I understand it. Although I respond towards the end to a criticism of my position by De Freitas, most of this article is given over to a reply to Bilchitz, whose arguments represent the more drastic challenge to my claim that religious groups should be permitted sometimes to discriminate. My purpose is to show that, although he contends adroitly in support of denying to religious associations a right to discriminate, Bilchitz’s efforts are unavailing. His arguments are not nearly strong enough to justify denying to religious associations a right sometimes to discriminate.

Access to safe abortion as a human right in the African region: Lessons from emerging jurisprudence of un treaty-monitoring bodies

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

Access to safe abortion as a human right in the African region: Lessons from emerging jurisprudence of un treaty-monitoring bodies

Authors Charles Ngwena

ISSN: 1996-2126
Affiliations: Professor, Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 399 – 428

Abstract

Each year, unsafe abortion causes the death of thousands of women, rendering them seriously ill and disabling many more in the African region. Highly restrictive abortion law is a major causative factor. Among United Nations (UN) treaty-monitoring bodies, there is a growing, albeit incremental, recognition of access to safe abortion services as a human right. Against the backdrop of abortion regimes that impede access to safe abortion in the African region, this article takes critical stock of the contribution that UN treaty-monitoring bodies are making towards the development of jurisprudence that conceives access to abortion as a human right. Its main focus is on critically appraising three decisions made by UN treaty-monitoring bodies, namely, KL v Peru; LMR v Argentina; and LC v Peru under Optional Protocols and drawing lessons for the African region.