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.

On the reciprocal relationship between the rule of law and civil society

by | Sep 25, 2019 | ACTA, ACTA 2015

On the reciprocal relationship between the rule of law and civil society

Authors Stu Woolman

ISSN: 1996-2088
Affiliations: Professor of Law and Elizabeth Bradley Chair of Ethics, Governance and Sustainable Development, University of the Witwatersrand, Johannesburg
Source: Acta Juridica, 2015, p. 374 – 406

Abstract

And I’m driving a stolen car, down on Eldridge Avenue. Each night I wait to get caught, but I never do. She asked if I remembered the letters I wrote, when our love was young and bold. She said last night she read those letters: and they made her feel one hundred years old. I’m driving a stolen car, on a pitch black night, and I’m telling myself — I’m gonna be alright. But I ride by night, and I travel in fear, that in this darkness, I will disappear. Bruce Springsteen ‘Stolen Car’ The River

Can we discard the doctrine of legal guilt?

by | Sep 25, 2019 | ACTA, ACTA 2015

Can we discard the doctrine of legal guilt?

Authors Pamela-Jane Schwikkard

ISSN: 1996-2088
Affiliations: Dean of the Faculty of Law, University of Cape Town
Source: Acta Juridica, 2015, p. 360 – 373

Abstract

The doctrine of legal guilt enjoys little popular support and there are systemic breaches of this doctrine in the criminal justice system. These breaches only occasionally attract public approbation and due process is frequently blamed in both popular and political discourse for the government’s inability significantly to reduce South Africa’s high crime rate. I argue that despite the unpopularity of the doctrine it would be dangerous and futile to discard it for short-term political gains.

S v Williams: A springboard for further debate about corporal punishment

by | Sep 25, 2019 | ACTA, ACTA 2015

S v Williams: A springboard for further debate about corporal punishment

Authors Ann Skelton

ISSN: 1996-2088
Affiliations: Professor and Director of the Centre for Child Law, University of Pretoria
Source: Acta Juridica, 2015, p. 336 – 359

Abstract

In an early judgment of the Constitutional Court, S v Williams, Justice Langa found that judicial whippings were unconstitutional because they violated young offenders’ rights to dignity and humane treatment. Former Chief Justice Langa was also a member of the unanimous court that found the law prohibiting corporal punishment in schools to be a reasonable and justifiable infringement of their parents’ right to religious freedom. However, s 12 of the South African Constitution guarantees everyone the right to be protected from all forms of violence, either from public or private sources. This contribution considers how the court might deal with a challenge to the constitutionality of the common-law defence of reasonable chastisement, which permits corporal punishment of children by their parents in their own homes.

State liability and accountability

by | Sep 25, 2019 | ACTA, ACTA 2015

State liability and accountability

Authors Alistair Price

ISSN: 1996-2088
Affiliations: Associate Professor, University of Cape Town; Advocate of the High Court of South Africa
Source: Acta Juridica, 2015, p. 313 – 335

Abstract

This contribution examines the relationship between two intersecting themes in Chief Justice Langa’s judgments: the need to hold the state accountable for its wrongdoing and the need to hold the state liable to pay a monetary sum to a victim of its wrongdoing. I argue that accountability is promoted by requiring the state to explain or to justify its actions and by holding it responsible for its actions. Responsibility for wrongdoing may and should take a variety of forms, both legal and political. Legal liability to pay money is but one of these. There are at least four distinct grounds to hold the state liable in South African law. Our courts have relied most heavily on one of these routes, namely the law of delict. Although in principle this is welcome, in future further attention should be given to the possibility that awarding ‘public law’ compensation as an alternative, whether constitutional damages or an award grounded in administrative law, may on occasion be a better means to hold the state accountable for failures to perform its distinctive obligations.

Contractual obligation and the journey from natural law to constitutional law

by | Sep 25, 2019 | ACTA, ACTA 2015

Contractual obligation and the journey from natural law to constitutional law

Authors François du Bois

ISSN: 1996-2088
Affiliations: Professor of Law and Head of School, University of Leicester; Honorary Research Associate, University of Cape Town
Source: Acta Juridica, 2015, p. 281 – 312

Abstract

The bold promise of the Constitutional Court’s first foray into the field of contract law during Langa CJ’s leadership remains unfulfilled. This paper takes issue with both the Supreme Court of Appeal’s reticent reaction to Barkhuizen v Napier and commentators’ criticism of the CC’s preference for indirect horizontal application of the Bill of Rights. Proposing an expansive understanding of the reach and force of indirect horizontal application, it argues that the Bill of Rights requires a new, constitutionally-informed, conception of the normative foundations of contractual obligation in place of the natural law approach of the Roman-Dutch tradition as articulated by Grotius. Such a conception does not treat the enforcement of contracts as tantamount to enforcing a duty to keep one’s word, a duty of virtue, but as supporting the consensual creation and vindication of interpersonal rights when it is in the public interest to do so. The SCA’s continued rejection of good faith, fairness and reasonableness as principles on which parties and courts can rely directly, as opposed to abstract values underlying operational rules and principles, are shown to rest on a conception of contractual obligation that is incompatible with the constitutionalisation of South African law.

Bhe v Magistrate, Khayelitsha: A cultural conundrum, Fanonian alienation and an elusive constitutional oneness

by | Sep 25, 2019 | ACTA, ACTA 2015

Bhe v Magistrate, Khayelitsha: A cultural conundrum, Fanonian alienation and an elusive constitutional oneness

Authors Sanele Sibanda, Tshepo Bogosi Mosaka

ISSN: 1996-2088
Affiliations: Senior Lecturer, University of the Witwatersrand, Johannesburg
Source: Acta Juridica, 2015, p. 256 – 280

Abstract

With reference to Bhe v Magistrate, Khayelitsha, this article critically examines the interplay between customary and common law under the Constitution. More precisely, it questions the implications of judicial and legislative approaches that conceptualise customary law in cultural terms, whilst treating the common law as immune from similar characterisation. The article argues that such an approach results not only in the further entrenchment of misplaced notions of the cultural ascendancy of the common law over customary law, but also further cements a Fanonesque alienation of the adherents of both systems of law from each other and indeed themselves. This outcome, it is argued, has serious implications for the forging of a constitutionally inclusive citizenship. [H]istory teaches us that, in certain circumstances, it is easy for the foreigner to impose his domination on a people. But it also teaches us that, whatever the material aspect of this domination, it can be maintained only by the permanent, organized repression of the cultural life of the people concerned. . . . In fact to take up arms to dominate a people is, above all, to take up arms to destroy or at least to neutralize, to paralyze, its cultural life. For with a strong indigenous cultural life, foreign domination cannot be sure of its own perpetuation. (Emphasis added.) A Cabral ‘National liberation and culture’in Unity and Struggle: Speeches and Writings (1979) The advent of Western Culture has changed our outlook almost drastically. No more could we run our own affairs. We were required to fit in as people tolerated with great restraint in a western-type society. We were tolerated simply because our cheap labour is needed. Hence we are judged in terms of standards we are not responsible for. Whenever colonisation sets in with its dominant culture it devours the native culture and leaves behind a bastardised culture that can only thrive at the rate and pace allowed it by the dominant culture. This is what has happened to the African culture. (Emphasis added.) S Biko I Write What I Like (2004) The unilaterally decreed normative value of certain cultures deserves our careful attention. F Fanon ‘Racism and culture’ in Toward the African Revolution (1964)

Customary succession and the development of customary law: The Bhe legacy

by | Sep 25, 2019 | ACTA, ACTA 2015

Customary succession and the development of customary law: The Bhe legacy

Authors Sindiso Mnisi Weeks

ISSN: 1996-2088
Affiliations: Assistant Professor, School for Global Inclusion and Social Development, University of Massachusetts Boston
Source: Acta Juridica, 2015, p. 215 – 255

Abstract

The Bhe decision was an important intervention in customary succession and women’s ability to inherit under official customary law. It also had significant implications for the development of legislated customary law and the jurisprudence pertaining to it. This article explores the Constitutional Court’s findings in light of literature and empirical evidence of women’s rights to inherit under customary law both before and after the judgment with the goal of celebrating the legal successes that the judgment symbolises and critiquing it on its limited benefit to remotely placed, rural women on the ground. The article draws on a detailed empirical study of how Bhe minimally impacted the dispute resolution of rural traditional courts around women’s inheritance, substantially — but not entirely positively — impacted a rural magistrates’ court in Mpumalanga and, in turn, impacted the women who rely on these forums for access to justice. It also draws on data from the CommunityAgency for Social Enquiry’s 2010 survey on women, land and customary law to reflect the trends in inheritance practices that have emerged in customary communities from preto post-1994. The article is, in part, a commentary on the narrow interaction between formal and informal legal institutions as well as the need to review the tools possessed by the formal courts to develop vernacular (that is, living customary) law. The article concludes with suggestions on what further developments are needed if rural women are to be served by the law as it stands.