ISSN: 1996-2126
Affiliations: None
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 237 – 240
None
ISSN: 1996-2126
Affiliations: None
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 234 – 236
None
ISSN: 1996-2126
Affiliations: Senior Researcher, Human Sciences Research Council (HSRC); Junior Researcher, HSRC; PhD student, School of Law, University of the Witwatersrand (Wits); Intern, Centre for Applied Legal Studies, Wits Bertha Foundation Intern; Intern, Centre for Applied Legal Studies, Wits; Research and Teaching Associate, School of Law, Wits; Candidate Attorney; Acting Director, Centre for Applied Legal Studies, Wits; Senior lecturer, School of Law, Wits
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 219 – 233
None
ISSN: 1996-2126
Affiliations: Junior Researcher, Human Sciences Research Council (HSRC); Candidate Attorney; Candidate Attorney, TGR Attorneys; Acting Director, Centre for Applied Legal Studies, Wits; Senior lecturer, School of Law, Wits
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 205 – 218
None
ISSN: 1996-2126
Affiliations: Lecturer, Department of Constitutional Law and Philosophy of Law, University of the Free State
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 185 – 204
None
ISSN: 1996-2126
Affiliations: Senior Lecturer in Law, Great Zimbabwe University
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 173 – 184
None
ISSN: 1996-2126
Affiliations: Senior Researcher, Institute for International and Comparative Law in Africa, University of Pretoria
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 151 – 172
No scholar currently defends the majority’s decision on voting rights in New National Party v Government of the Republic of South Africa. Its place in the South African canon is one of rejection: a classic mistake, or at least an illustration of the problems of excessive deference, technicality, and/or nervous political calculation. Against this, I argue that the decision is in fact eminently defensible. Its universal rejection is therefore very intriguing: why have so many scholars treated the decision as clearly wrong, and the dissent of O’Regan J as clearly right? One of the reasons is that the majority judgment of Yacoob J is standardly misread, in part because he, confronting issues that were brand new in 1999, uses terms other than those that would soon thereafter become settled in South African constitutional talk. But the deeper and more interesting reason is that currently dominant ways of understanding constitutionalism in South Africa — interlocking ideas about apartheid, about the ANC, about the Constitutional Court and about rights — prime us to view New National Party as a clear error. That it is not, in fact, a clear error, therefore, should lead us to reverse course and reconsider the canonical ideas that label it as such.
ISSN: 1996-2126
Affiliations: Department of Public, Constitutional and International Law, College of Law, University of South Africa
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 136 – 150
Amici curiae participation plays an important role in litigation and judicial decision-making. The public interest nature of these participations has become particularly important in representing the point of view of those who might be affected by a judgment which could influence the outcome of a decision. Employing amicus curiae participation as specific litigation strategy is of importance in promoting litigation from a feminist and gendered viewpoint allowing feminist method to be employed in constructing effective legal arguments.
ISSN: 1996-2126
Affiliations: Associate Professor, School of Law, University of the Witwatersrand; and Honorary Senior Researcher, Socio-Economic Rights Institute of South Africa (SERI)
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 112 – 135
Across the developing world one of the structural mechanisms adopted to facilitate access to courts is enabling direct access to the highest court. Recognising the role that direct access can play to advance access to justice, the South African Constitution allows direct access to the Constitutional Court when it is in the interests of justice. Somewhat surprisingly given this formal acknowledgment of the potential public interest served through direct access, there has been no comprehensive analysis of the Constitutional Court’s direct access practice. This article fills this gap by evaluating — from a pro-poor perspective — the court’s approach to direct access. It does so by first outlining the applicable rules and principles governing direct access applications. It then examines the court’s direct access record between 1995 and 2013 highlighting that, in stark contrast to the highest courts in other developing countries, the South African Constitutional Court has interpreted its direct access mandate conservatively, seeking to restrict rather than to expand direct access. Thereafter, the article analyses the arguments against and for direct access, before concluding that the court’s conservative approach weakens its position in terms of popularising the Constitution and acting as an institutional voice for the poor.
ISSN: 1996-2126
Affiliations: Professor, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC); and Secretary-General, International Association of Constitutional Law
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 86 – 111
This article focuses on a particular problem in South Africa — and that has arisen in many developing democracies around the world — concerning the frequent failures of representative institutions adequately to represent and address the interests of the poor. It explores some of the underlying reasons that have been advanced to explain this phenomenon. The article then focuses on the recognition of fully justiciable socio-economic rights in many modern constitutions and contends that part of their raison d’etre is to offer one means of correcting the flaw in representative democracy that leads to the under-representation of the interests of the poor. The article then seeks to illustrate the political dimension of socio-economic rights through an analysis of some of the case law on the subject in South Africa. It concludes by reflecting on the manner in which, at least partially, socio-economic rights can be seen as a species of political rights and how this contributes further to breaking down the division between different classes of rights.