ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 132 Issue 4, 2015, p. 979 – 981
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ISSN: 1996-2177
Affiliations: Justice of the Constitutional Court (2004–2009)
Source: South African Law Journal, Volume 132 Issue 4, 2015, p. 974 – 978
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ISSN: 1996-2177
Affiliations: Former Judge of the Supreme Court of Appeal
Source: South African Law Journal, Volume 132 Issue 4, 2015, p. 971 – 973
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ISSN: 1996-2177
Affiliations: Judge of the Supreme Court of Appeal
Source: South African Law Journal, Volume 132 Issue 4, 2015, p. 940 – 970
The article addresses the problem of reconciling the Constitution with the common law in the light of the decisions in Hubbard v Cool Ideas 1186 CC 2013 (5) SA 112 (SCA) and Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC) and proposes a structure within which to approach the common law from a constitutional perspective.
ISSN: 1996-2177
Affiliations: Reader in European Private Law, University of Edinburgh; Honorary Research Associate, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 132 Issue 4, 2015, p. 909 – 939
One remarkable feature of the South African law of defamation or iniuria is how it has retained a historical form of redress still known under its French name as amende honorable. After a long period of eclipse, the remedy has recently been revived (albeit to an extent which remains uncertain), at least in part under the influence of ideas of restorative justice and ubuntu. In that new context, it has been suggested that the remedy — a form of retraction of the offending words coupled with an apology for their utterance — could redress injuries to reputation, dignity or feelings better than monetary damages would, and also help mend relationships between the parties. This paper offers a sceptical note on those various counts. Tracing the history of amende honorable in Roman-Dutch law and beyond, it argues that the gist of the action, both historically and doctrinally, lies in a now largely overlooked dimension, namely, the public humiliation of the offender. It is this dimension, unpalatable though it might be to us, which accounts for the potency of the remedy; if we lose sight of it, we find ourselves left with a court-imposed retraction and apology which is incapable of meeting any of the hopes placed by the moderns in the revival of the ancient remedy.
ISSN: 1996-2177
Affiliations: Lecturer, Department of Public Law, University of Pretoria
Source: South African Law Journal, Volume 132 Issue 4, 2015, p. 875 – 908
This article explores the role of environmental justice as a transformative tool in litigation to enforce socio-economic rights in South Africa. Because environmental justice recognises the intrinsic links between the distribution of basic resources, and the environments in which poor people continue to find themselves in post-1994 South Africa, it has the ability to enhance and strengthen the enforcement of socio-economic rights. To demonstrate the transformative potential of environmental justice, I discuss its origins and its incorporation into South African law. I then demonstrate that, despite having been incorporated into our law, environmental justice has failed to capture the imagination of lawyers engaged in socio-economic rights litigation. Sustainable development and human rights discourses have been the dominant voices, at the expense of environmental justice, and its transformative potential. Through an analysis of Mazibuko v City of Johannesburg I point tohow linking environmental justice to the right to access to basic water could have encouraged the court to adopt a more redistributive and transformative approach. To conclude, I consider the potential of environmental justice in socio-economic rights litigation to challenge poverty and effect transformation in the lives of poor people in South Africa.