“Fit and proper” judges and free speech: A critical reflection

by | Mar 31, 2024 | SLR, SLR V34 I3

“Fit and proper” judges and free speech: A critical reflection

Author: Fareed Moosa

ISSN: 1996-2193
Affiliations: BProc (UWC) LLB (UWC) LLM (UCT) LLD (UWC), Associate Professor, Department of Mercantile and Labour Law, University of the Western Cape
Source: Stellenbosch Law Review, Volume 34 Issue 3, 2023, p. 429 – 450
https://doi.org/10.47348/SLR/2023/i3a4

Abstract

Against the backdrop of the silence by apartheid-era judges who refused to speak out against the inhumanity of apartheid, resulting in egregious human rights violations, this article explores what it means to be a “fit and proper” judge as envisaged by section 174(1) of the Constitution of the Republic of South Africa, 1996 read with the Judicial Service Commission Act 9 of 1994 and the Code of Judicial Conduct GN R 865 in GG 35802 of 18-10-2012 (“the Code”). The argument is that, in this context, the meaning of “fit and proper” has far greater depth and breadth than the same normative standard contemplated by the Legal Practice Act 28 of 2014 for lawyers as officers of the court. A “fit and proper” judge is a person with more than just absolute integrity, impeccable honesty, a high degree of professionalism, and unflinching incorruptibility. A judge is also a person who, at all times, scrupulously obeys the Constitution and its dictates, strictly respects the law and abides by the rule of law, always advances human rights and constitutional values, and faithfully discharges all duties embraced by the oath of judicial office and does so with courage.
This article argues that South Africa can only take its rightful place in the family of nations if its judges, through their extra-judicial words and deeds, help shape South African society, and others where needed. The Constitution and the oath of judicial office oblige judges to, inter alia, denounce apartheid in any of its current-day incarnations, and advocate for legal orders moulded by democratic values, human rights, freedom, equality, rule of law, and justice for all. A culture of judicial silence in the face of injustice and human rights violations, whether perpetrated on foreign or domestic soil, is an abdication of judicial responsibility and antithetical to the ethos underpinning the transformative notion of a “fit and proper” judge under the Constitution. This article reminds judges that while duties arising from the Constitution and their oath of office rank supreme over any in the Code, they are to be delicately balanced. Extra-curial speech must respect the separation of powers and not undermine the judiciary’s standing, integrity and independence.

The role of the recognition of the Customary Marriages Amendment Act 1 of 2021 and wills in determining the proprietary consequences of polygynous customary marriages [Discussion of Mshengu v Estate Late Mshengu (9223/2016P) 2021 ZAKZPHC 49 (6 August 2021)]

by | Mar 31, 2024 | SLR, SLR V34 I3

The role of the recognition of the Customary Marriages Amendment Act 1 of 2021 and wills in determining the proprietary consequences of polygynous customary marriages [Discussion of Mshengu v Estate Late Mshengu (9223/2016P) 2021 ZAKZPHC 49 (6 August 2021)]

Author: Tshepo Aubrey Manthwa

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Associate Professor, School of Law, University of South Africa
Source: Stellenbosch Law Review, Volume 34 Issue 3, 2023, p. 451 – 459
https://doi.org/10.47348/SLR/2023/i3a5

Abstract

The Recognition of Customary Marriages Amendment Act 1 of 2021 amends section 7(1) of the Recognition of Customary Marriages 120 of 1998 as a sequel to Gumede v President of the Republic of South Africa 2009 3 SA 152 (CC) and Ramuhovhi v President of the Republic of South Africa 2018 2 SA 1 (CC) in which this section was declared unconstitutional on the basis that it unfairly discriminated, on the basis of gender and race, against women married in terms of customary law before the commencement of the Act. According to the Constitutional Court, these women did not have the right to possess property in terms of customary law, which left them especially vulnerable in the absence of statutory protection if their marriages were dissolved for example.
The achievement of gender equality is an important transformative and social justice goal in South Africa. Over the years, the courts have reconstructed customary law to promote gender equality. Customary law traditionally did not discriminate against women and they were allowed to manage property. However, this changed after contact with colonialism where, through collaboration with African men, women were treated as minors. This was a distortion of the legal system. The problem is that all the focus, including that of the courts and the legislature, is on the distorted version of customary law, and the true version that did not discriminate against women is being ignored. Consequently, in reconstructing and creating gender equality, a new form of customary law is being created, namely constitutional customary law. The true form of customary law does not recognise private ownership of property, A person can only manage property, not own it, but through constitutional customary law, the court and legislature have imposed common law concepts such as joint and equal ownership of property. This has unfortunate consequences, such as the fact that a customary heir can alienate family property after divorce while disregarding any responsibility to the family.

Who believes black women? Applying the right to health framework to undo epistemic injustice

by | Mar 4, 2024 | SLR, SLR V34 I2

Who believes black women? Applying the right to health framework to undo epistemic injustice

Author: Tlaleng Mofokeng

ISSN: 1996-2193
Affiliations: United Nations Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 249 – 260
https://doi.org/10.47348/SLR/2023/i2a1

Abstract

Epistemic injustice has a significant impact on black women’s experiences of healthcare. The failure of medical professionals to consider the experience of black women impairs the realisation of their right to health. Moreover, it embeds the disadvantages that these women face, undermining the realisation of substantive equality. This lecture considers how the medical community’s failure to believe and listen to black women constitutes an example of epistemic injustice. First, it discusses the prevalence of so-called “sex testing” in sports and how it is often used to target black female athletes as an example of epistemic injustice. In particular, it focuses on the impact of sex testing on the career of Caster Semenya. Secondly, it addresses how the forced sterilisation of black women in South Africa is another example of epistemic injustice in healthcare, negatively impacting their rights. Finally, it considers the criminalisation of sex work in South Africa as a third example of epistemic injustice that has substantially affected the rights of mostly black women.

Medico-legal and bioethical implications of uterine transplants for trans women in South Africa

by | Mar 4, 2024 | SLR, SLR V34 I2

Medico-legal and bioethical implications of uterine transplants for trans women in South Africa

Author: Brigitte Clark

ISSN: 1996-2193
Affiliations: BA LLB (Rhodes) LLM (Cantab) PhD (Rhodes), Associate Professor, School of Law, University of KwaZulu-Natal, Honorary Visiting Researcher, Oxford Brookes University, Oxford
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 261 – 284
https://doi.org/10.47348/SLR/2023/i2a2

Abstract

Millions of women worldwide are affected by congenital or acquired uterine infertility, often requiring hysterectomy, and are thus unable to gestate their own children. This article provides an initial framework for assessing the feasibility of uterine transplantation against the backdrop of the best interests of the child and legal, ethical and societal notions of the family, focusing on the medical, ethical and legal position of women affected by uterine infertility, and particularly on the constitutional rights of trans women in this regard. The transplantation of organs was initially developed as a life-saving treatment and a last resort. By contrast, uterine transplantation falls into the non-life sustaining category, which raises complex ethical issues. Following a successful clinical trial investigating uterine transplantation in Sweden, uterine transplantation appears to be a viable therapeutic option for women with uterine infertility, known as absolute uterine factor infertility. For trans women, infertility has been a consequence of the realignment of a trans woman’s body by surgery with their gender identity. Medically, ethically and legally, the consideration of performing uterine transplantation in trans women would be primarily motivated by considerations of equality. Legally, in terms of the Constitution, transgender people are afforded explicit protection from both direct and indirect forms of discrimination. Subsequently, if uterine transplantation became an established treatment option for women with absolute uterine factor infertility, it might be constitutionally discriminatory to refuse to perform uterine transplantation on trans women solely because of their gender identity. In the context of the rights to equality, dignity and reproductive freedom, the article poses the question whether such rights could justifiably be limited in South African law in terms of section 36 of the Constitution, with particular reference to the right to reproductive freedom. After considering whether such rights could legitimately be limited, the article concludes that, in relation to advances in medical law and reproduction, South African legislation should scrutinise its hetero-normative concept of the family in this regard.

Evaluating remedial empowerment as a missing link in administrative justice

by | Mar 4, 2024 | SLR, SLR V34 I2

Evaluating remedial empowerment as a missing link in administrative justice

Authors: Ernst Heydenrych and Geo Quinot

ISSN: 1996-2193
Affiliations: LLB (cum laude) LLM (cum laude) LLD (Stell), Junior Lecturer, Department of Mercantile Law, University of Stellenbosch; BA (Law) LLB (Stell) LLM (Virginia) MA (UFS) MPA (Birmingham) LLD (Stell), Professor, Department of Public Law, University of Stellenbosch
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 285 – 309
https://doi.org/10.47348/SLR/2023/i2a3

Abstract

The Constitution of the Republic of South Africa, 1996 frames the project of addressing South Africa’s past and current challenges as one of justice, in what has generally become known as transformative constitutionalism. However, South Africa’s justice system (the formal judicial mechanisms to extract justice) remains largely inaccessible to the poor due to its high costs, prolonged time-periods, and technical nature. Furthermore, South Africa does not currently have a uniform system of administrative, internal controls, and it also does not currently recognise an enforceable duty against the state to implement such a system.
Within this context, the central argument of this contribution is that South Africa should, alongside section 7(2) of the Promotion of Administrative Justice Act 3 of 2000, recognise a duty to create internal remedies and establish a comprehensive system of administrative, internal remedies that would allow the public administration to correct or review its own decisions. The development of such a system would enable the public administration to deal with its decisions and actions on a first-hand basis and, in principle, broaden access to administrative justice for the poor and marginalised. It will also keep the promise of constitutional transformation as a matter of justice alive. We aim to set out the rationale for the creation and implementation of a uniform system of internal controls in this contribution.

Transformative constitutionalism and the framework of the common law of personality

by | Mar 4, 2024 | SLR, SLR V34 I2

Transformative constitutionalism and the framework of the common law of personality

Author: CJ Visser

ISSN: 1996-2193
Affiliations: LLB (UJ) LLM PhD (Wits), Senior Lecturer, School of Law, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 310 – 332
https://doi.org/10.47348/SLR/2023/i2a4

Abstract

This article interrogates the constitutionalisation of the framework of the common law of personality – its substance and method – against the transformative constitutionalism paradigm. The transformative constitutionalism paradigm requires greater reflexivity as to the balancing of individualistic and collectivist values in common law frameworks. Such a constitutionalisation process must be influenced by legal culture and ideology as an overarching ideological concern. The Constitutional Court in Le Roux v Dey 2011 3 SA 274 ostensibly attempted to align the framework of the common law of personality with the Constitution of the Republic, 1996 (the “Constitution”). However, the court failed to articulate the human personality as a composite legal interest consisting of various personality rights, underscored by human dignity, due to a superseding preoccupation with subjective feelings of self-worth. This reduced the composite nature of the human personality and the multifaceted nature of human dignity. The same preoccupation also prevented the separate and distinct application of the requirements of the actio iniuriarum to articulate the human personality as a composite legal interest. This article refers to the court’s judicial line of reasoning as “the iniuria approach”. This approach gives rise to an inadequate alignment between the common law and the Constitution, resulting in a substantive mismatch. Such a substantive mismatch is a “defective conversion”, of which the underlying cause is an underpinning ideology of pre-constitutional notions of (classical) liberalism) concealed through a conservative legal culture with attendant formalistic modes of legal reasoning. This causes an imbalance between individualistic and collectivist values permeating the common law’s framework in contradiction to the transformative constitutionalism paradigm. This imbalance frustrates the development of the framework of the common law of personality in line with constitutional values and necessitates the rejection of the iniuria approach in favour of a more transformative approach.