Towards a South African free-speech model

by | Oct 20, 2019 | SALJ, SALJ V134 I4 2017

Towards a South African free-speech model

Authors Joanna Botha

ISSN: 1996-2177
Affiliations: Lecturer, Department of Public Law, Nelson Mandela University
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 778 – 820

Abstract

The scope of the right to freedom of expression, including the regulation of hate speech and an appropriate threshold test for a legislated hate-speech offence, are contentious issues. In this article the legitimacy of hate-speech regulation in South Africa is explored from a jurisprudential perspective by examining the rationales justifying the constitutional entrenchment of freedom of expression. The aim is to establish a clear and meaningful standard to guide the discussion around the reform of South Africa’s hate-speech laws and to create a conceptual framework for the development of an appropriate threshold test for a criminal hate-speech regulator. The article demonstrates that the correct approach to South African free-speech theory is to emphasise the social dimension of freedom of expression and the impact its exercise has on the rights of others, including the dignity of target groups, and the advancement of social connection, cohesion and diversity. A communitarian model of free speech is recommended; one that is reflective of the transformative constitutional mandate and which provides an enabling framework to facilitate the enactment of constitutionally sound legislation for the regulation of hate speech in South Africa.

Exploring the relationship between the environmental right in the South African Constitution and protection for the interests of animals

by | Oct 20, 2019 | SALJ, SALJ V134 I4 2017

Exploring the relationship between the environmental right in the South African Constitution and protection for the interests of animals

Authors David Bilchitz

ISSN: 1996-2177
Affiliations: Professor, Fundamental Rights and Constitutional Law, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 740 – 777

Abstract

This article considers the relationship between the environmental right in the South African Constitution, 1996 and the protection of the interests of animals. The question is addressed through articulating two interpretive approaches to the terms ‘conservation’ and ‘sustainable use’. The ‘aggregative approach’ — which has been the dominant policy approach adopted by the legislature and executive — focuses on broad collective environmental goals such as the long-term survival of a species, the health of ecosystems, or conserving biodiversity. The ‘integrative’ approach, by contrast — which has recently been referenced with approval by the Constitutional Court — requires the adoption of an attitude of respect to the individuals that make up a species, an ecosystem or the components of biodiversity. The article makes several arguments as to why the integrative approach is preferable, and attempts to demonstrate that the aggregative approach is self-defeating in its own terms. The practical implications of the differences between these abstract approaches are illustrated by considering two recent controversies in interpreting environmental legislation. This article thus sets itself the ambitious purpose of connecting two sets of discourses that often talk past each other in developing the interpretation of the environmental right in the South African Constitution.

Notes: Perspectives on the juridical basis for taking (the value of) trust assets of alter-ego trusts into account for the purposes of accrual claims at divorce: REM v VM

by | Oct 20, 2019 | SALJ, SALJ V134 I4 2017

Notes: Perspectives on the juridical basis for taking (the value of) trust assets of alter-ego trusts into account for the purposes of accrual claims at divorce: REM v VM

Authors Bradley S Smith

ISSN: 1996-2177
Affiliations: Associate Professor, University of the Free State
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 715 – 728

Abstract

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