Constitutional Court Of South Africa Research Articles

When is discrimination unfair? A relational reconstruction of the Constitutional Court’s dignity-based approach

In this article, I examine the dignity-based test for unfair discrimination developed by the Constitutional Court of South Africa. First, I argue that the point of antidiscrimination rights is to protect equality. They seek to prevent a comparative wrong — wrongful disparities in treatment. Violating dignity appears, however, to be a non-comparative wrong — one that is independent of the treatment extended to others. Tying unfair discrimination to dignity violations therefore seems to miss the comparative concerns that underlie anti-discrimination rights. Adding that everyone is ‘equally’ entitled to be treated with dignity does not solve the problem. I respond to this apparent difficulty with the court’s approach by suggesting that the court is best understood as concerned with a distinctive kind of dignity — status dignity. I also argue that there is an attractive conception of equality — relational equality — that explains why violations of status dignity are violations of equality. This interpretation provides the requisite egalitarian foundation for the court’s approach. Secondly, I address the criticism that a dignity-based understanding of substantive equality is too limited to address systemic inequalities. I suggest that an understanding based in status dignity is suitably robust and requires far-reaching reforms and restructuring of social practices.

Nurturing Tomorrow’s Jurists: Rethinking the Indonesian Constitutional Court's Clerkship System through a Comparative Lens

This paper dives into the clerkship system at the Indonesian Constitutional Court (MK), an independent judicial organ that holds high importance as the guardian of the constitution. While the court’s nine justices benefit from the existence of a clerk’s office, its work is still very limited to administrative matters. The paper begins by questioning whether the current system is sufficient to assist justices in their work and fulfill the larger aims of judicial clerkship. Its ultimate objective as a follow-up to the question is to identify ways to improve MK’s clerkship system. In order to assess the Indonesian clerkship system, a comparative analysis study of three other countries’ courts that similarly act as guardians of their respective constitutions – namely the Supreme Court of the United States, Constitutional Court of South Africa, and Supreme Court of India – is conducted. It is found firstly that there is indeed a need to change the clerkship system in MK as there are multiple ways in which clerks can help the court and benefit from it. Consequently, the changes that should be made run deep into the very purposes and roles of clerks, the structure of the committee or program, and the expected qualifications and selection process. By drawing inspiration from the three aforementioned courts, a contextualized adoption can be identified by taking into account Indonesia’s own circumstances.

Intellectual Property and the Constitutional Court of South Africa: Lessons from the Deployment of Adjudicative Strategies

The Constitutional Court of South Africa recently handed down its fourth decision so far in the field of intellectual property. These decisions came against the backdrop of reforms and reform proposals concerning intellectual property rights in South Africa. These reforms and reform proposals were prompted by the need to establish intellectual property laws that are attuned to South Africa’s local context and needs, while complying with South Africa’s international treaty obligations. Parallel to South Africa’s policy and legislative agenda, this paper recognises these four decisions (referred to as the “IP quartet”) as the emergence of an intellectual property rights jurisprudence. The paper analyses the IP quartet and identifies a coherent narrative with respect to the intersection between intellectual property rights and constitutional rights and the appropriate approach to determining their real-life applications. The paper also explains this intellectual property rights jurisprudence and its contribution, and considers the adjudicative strategies employed by the Constitutional Court in applying constitutional provisions to dealing with issues involving intellectual property rights. An explanation of this jurisprudence arising from these cases will: (a) promote an understanding of the scope of intellectual property rights including the appropriate nature of their intersection with constitutional provisions (specifically fundamental rights expressed in Chapter 2 of the South African Constitution); and (b) offer some guidance to lower courts and the executive arm of government on the appropriate approach to the interpretation, conceptualization and application of the intellectual property legal framework.

Hard Cases Make Bad Law: Reflections on the South African Constitutional Court’s Jurisprudence on the Development of African Customary Law in South Africa

Judicial interpretation and adjudication are complex and controversial processes that the judiciary has been grappling with for centuries. This persists in modern constitutional judicial processes, particularly when adjudicating ‘hard cases.’ African customary law cases are indeed hard or difficult cases. This is especially so when it comes to the development of African customary law. This article reflects on the jurisprudence of the Constitutional Court of South Africa regarding the development of African customary law. It is concluded that although there were some commendable strides in the development of African customary law in a few cases at its inception, the court has in subsequent judgments faltered. In these ‘hard cases’ the court has, in many instances, adopted a conservative, formalistic, literalistic approach, often using technicalities to either avoid the development of African customary law or simply abdicate its judicial responsibility. This flies in the face of the project of transformative constitutionalism and produces bad law when it comes to the court’s jurisprudence on the development of customary law.

JUDICIAL REVIEW IN SOUTH AFRICA AND INDIA: ADVANCING CONSTITUTIONALISM OR UNDUE ACTIVISM?

The Supreme Court of India and the Constitutional Court of South Africa, as apex courts, also function as guardians of the constitutions of each respective country. This article seeks to establish the extent to which judicial review in India and South Africa can be said to be more aligned with constitutionalism or undue activism. An assessment of the aforesaid is determined with regard to the transformative and progressive constitutional interpretation approach adopted by the aforesaid courts which also gives impetus to the living tree doctrine, the role that dignity plays in giving substantive meaning to democracy, ineptitude, and or corruption on the part of the executive precluding the effective realisation of socio-economic rights as well as parliament’s failure to hold members of the executive to account. The extent to which constitutionalism, as opposed to undue activism, has been advanced by the aforesaid courts is demonstrated with reference to specific cases.

In defense of the horizontal application of the due process clause

The main objective of this paper is to answer the following research problem: is it possible to apply the constitutional clause of due process of law in a horizontal dimension, in the context of relationships between private subjects? The hypothesis is the understanding of due process as an adaptive guarantee of the rule of law, which must be responsibly extended to new contexts outside the individual-state relationship, based on a specific test. As a main result, the factual and theoretical premises that support the hypothesis inform that the promotion of constitutional liberties, empirically, depends not only on the State, but also on the conduct of other social agents. Therefore, the conclusion is that by failing to consider the relevance of the internal structure of society — and thus failing to distinguish asymmetrical forms of power exercise — the liberal doctrine of state action fails considerably. The theoretical grounds of the paper are provided by a comparative analysis, with emphasis on the precedents of foreign Constitutional Courts — such as the Supreme Court of the United States and the Constitutional Court of South Africa — and international courts. The method employed is the hypothetical-deductive approach.

MEANINGFUL ENGAGEMENT: SOUTH AFRICAN CONTRIBUTIONS TO STRUCTURAL LITIGATION IN BRAZIL

Objective: The purpose of this article is to analyze a structural remedy model developed by the Constitutional Court of South Africa, called Meaningful Engagement, which can minimize the impact of traditional objections to structural litigation, as it increases community participation and interinstitutional dialogue between the various actors responsible for the solution of the problem. Methodology: As a research methodology, in addition to the traditional bibliographic research around the doctrine developed on the subject, a more in-depth analysis of the two paradigmatic cases that served as the basis for the development of the South African institute, Olivia Road and Joe Slovo, was carried out. Results: It is concluded that are intrinsic and extrinsic reasons for seeking inspiration in the Meaningful Engagement model. The South African model, by valuing institutional dialogue and public participation, mitigates the usual criticisms to structural litigation. Contributions: From the results, it is observed that: a) in dialogic structural remedies, affected communities are treated with dignity and can influence the formulation of public policies that concern them.; b) public participation guarantees the structural injunctions transparency and, to the judges, greater technical capacity, since only with the inclusion of the social segments affected by the problem that is intended to be overcome will the judge be able to produce measures consistent with the real needs the concrete case; c) finally, public participation and institutional dialogue also collaborate to mitigate the criticisms usually made of structural processes.

Reconsidering corruption as a violation of the rights to equality and non-discrimination based on poverty in South Africa

Many international organisations and national institutions such as, for example, the United Nations (UN) Human Rights Council, Transparency International, and the Constitutional Court of South Africa have agreed that corruption has a negative impact on the realisation and enjoyment of human rights. Vulnerable and marginalised groups are disproportionally impacted when it comes to the realisation of their socio-economic rights. This is especially the case where corruption limits access to quality and affordable social services essential for the realisation of rights such as the rights to adequate housing, sanitation, education, and healthcare. This article argues that the criminal law approach, traditionally employed to fight corruption, is not sufficient to address the social harm caused by corrupt acts and omissions. It is argued that a human rights-based approach, grounded in the principles of accountability, empowerment, participation, and non-discrimination, must be employed to provide adequate remedies to the victims of corruption. This article specifically explores the possible violation of the rights to equality and non-discrimination, where corrupt acts or omissions result in limited access to social services for one of the most vulnerable and marginalised groups in society, the poor. This argument is based on the recent judgment by the Equality Court in Social Justice Coalition v Minister of Police 2019 (4) SA 82 (WCC), where the Court found that poverty constitutes an unspecified ground for discrimination, as envisioned by the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. It is found that the state’s failure to adequately prevent corruption, particularly where corruption results in the limitation of access to quality and affordable social services such as education, housing, and healthcare, that are essential for the realisation of rights, impairs the fundamental human dignity of those living in poverty and adversely affects the realisation of their rights in a comparably serious manner. Thus, under a human rights-based approach, rights holders can hold the state accountable for violating duties, to which they are legally obliged under the human rights framework due to corrupt acts and omissions.

Constitutional Court statistics for the 2020 term

This note provides descriptive statistics on the work of the Constitutional Court of South Africa in 2020. The statistics are arranged in fifteen tables. The method of constructing each table is given in the text that follows it. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 and subsequent editions of the South African Journal on Human Rights. Section 1 covers those decisions in which the Court produced a written judgment, while Section 2 covers applications that were considered in chambers and dismissed without a judgment being given.

Is English becoming a threat to the existence of indigenous languages in institutions of higher learning in South Africa?

This article provides a critique of the judgment of the Constitutional Court of South Africa in Gelyke Kanse v Chairperson of the Senate of the University of Stellenbosch1 with specific reference to the concept of transformative constitutionalism and the use of indigenous languages in tertiary education. The discussion further highlights the significant role played by one's own language in his or her day-to-day life encounters and argues that the wait has been too long to have one of the indigenous languages fully utilised in one of the tertiary institutions, amongst others. Finally, the paper recommends that the use of indigenous languages at institutions of higher learning needs to be given urgent attention by all stakeholders and can no longer remain at the mercy of those who are tasked with language policies at tertiary institutions.

Constitutional Court statistics for the 2019 term

This note provides descriptive statistics on the Constitutional Court of South Africa’s (the Court) work in the year 2019. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of the South African Journal on Human Rights. Section 2 of this note covers those decisions in which the Court produced a written judgment, while section 3 covers applications that were considered in chambers and were dismissed without a judgment being given.

Corporal punishment in the home: Is there a legal duty on the medical doctor to report it?

The infliction of corporal punishment on children (in the home) was found to be unconstitutional by the Constitutional Court of South Africa (September 2019). Corporal punishment was historically permitted if exercised within reasonable grounds (moderate or reasonable chastisement). In reaching its judgment, the apex court found that the child's right to human dignity and to be free from all forms of violence was unjustifiably infringed by the exercising of this form of discipline. In addition, the child's best interests was not served. Importantly, there were other non-violent means available to parents to discipline their children. This article examines what this judgment means for medical doctors who reasonably suspect that a child has been the victim of corporal punishment. It is argued that medical doctors have a duty to report such incidents in terms of section 110(1) of the Children's Act 38 of 2005.

A pandemic anniversary: 40 years of HIV/AIDS

“In the period October 1980–May 1981, 5 young men, all active homosexuals, were treated for biopsy-confirmed Pneumocystis carinii pneumonia at 3 different hospitals in Los Angeles, California. Two of the patients died. All 5 patients had laboratory-confirmed previous or current cytomegalovirus (CMV) infection and candidal mucosal infection. Case reports of these patients follow.” The five patients described in this historic US Centers for Disease Control and Prevention (CDC) report on June 5, 1981, were previously healthy gay men aged 29–36 years. Their illnesses and deaths marked the dark dawn of the recognition of AIDS. The HIV/AIDS pandemic has now been with us for four decades and at least 32 million lives have been lost. There are many histories of HIV/AIDS. Countless stories of loss, of activism, of rage and resilience, of scientific triumph after years of futility and suffering. There are lessons about the essential role of investment in science. And all too many about equity, justice, discrimination, and stigma that we have yet to learn. And the pandemic continues, still expanding in eastern Europe and central Asia and the Middle East and north Africa, even before the setbacks caused by COVID-19. In June, 1981, when that CDC report was published, I had just graduated from college, with an uncertain interest in medicine, and a keen interest in men. I was dating a farmer who had spent the previous winter in San Francisco. We met up at a men's gathering in March, 1981. Around a campfire, Scott, my boyfriend, was being teased about the men he had been with in that past San Francisco winter. “Not this year”, he said. “There was something really awful going around, and it seemed to be only hitting gay guys.” Only a handful of the men around that fire would survive the years ahead. The 15 years between the emergence of AIDS and the development of effective antiretroviral therapy (ART) in 1996 were searing. It soon became clear that the disease was not restricted to gay and bisexual men, although that early association, and the stigma and shame attached to it, would limit the crucial early responses to its spread. In the USA, a cohort of people with haemophilia who received pooled plasma products were virtually all infected before HIV was identified and a test developed to screen blood products. This group included an Indiana schoolboy named Ryan White, whose struggle to attend school became a wake-up call to the potency of AIDS stigma. The retrovirus that was the causative agent was finally identified in 1983 in a landmark paper by virologist Françoise Barré-Sinoussi and colleagues. That discovery soon led to the first HIV test and the recognition, by 1985, that HIV infection could be asymptomatic. What seems obvious now was shocking then. I was a medical student in Brooklyn, New York, by 1985, terrified as so many were, and my then lover and I both got tested soon after that first test became available. My test was negative. My lover Ed's was not. He would succumb to pulmonary Kaposi sarcoma in 1991, 5 years before the advent of effective therapy. He was just 31 years old. Those early years were marked by heroism and despair. Ronald Reagan was the US President and the enduring association of AIDS and homosexuality meant that his administration was pitilessly slow to respond. At the first White House press conference on AIDS in 1982, aides made anti-gay jibes while noting that about a third of reported cases were fatal. The inadequate response, the absence of any effective therapy, and the slow pace of research generated a fierce wave of activism. Media savvy, passionate, and galvanised by watching friends and lovers die, AIDS activist movements brought potent new tools to the fight against HIV. Activists targeted entities that had rarely faced such public challenges, such as the US Food and Drug Administration, the pharmaceutical industry, and unresponsive or hostile governments, including, most infamously, the AIDS denialist administration of Thabo Mbeki in South Africa. Activists educated themselves about everything from trial designs to antiviral mechanisms. They fought for and gained seats at the table—and changed the way medical research has been done ever since. It would take hundreds of clinical trials of multiple agents and combinations to achieve effective treatment—the first triple-drug ART that worked. Some commentators called it the “Lazarus effect” as people rose from their deathbeds. This was 1996. I was working in Chiang Mai, Thailand, on the severe HIV/AIDS epidemic underway across the region. HIV had spread initially among the region's injecting drug users, but quickly became an infection of young sexually active men and women—with devastating consequences for Thailand, Myanmar, Vietnam, and Cambodia. For people in the region, and, indeed, for most of humanity, the “Lazarus effect” was a distant rumour. The first successful trial results were presented at the 1996 International AIDS Conference in Vancouver. As the study outcomes were presented, with those beautiful survival curves showing real and sustained benefit, I sat in the audience and wept with relief. But we would have no treatment for most people living with HIV for years to come. A new reality quickly emerged. Most of the HIV patients on ART were in high-income countries. But most people living with HIV were in low-income and middle-income countries (LMICs). This painful period, from 1996 to 2003, was the height of the loss of lives from AIDS. Sub-Saharan Africa was by far the most affected region. AIDS care was then costly, complex, and challenging. Yet the idea that some would live, but most would die, based largely on geography, was morally and ethically unacceptable. It was at another International AIDS Society Conference, in Durban, South Africa, in 2000, that our movement was judged, fittingly, by a man living with HIV. Justice Edwin Cameron of the Constitutional Court of South Africa made a resounding case that the world had to act against this injustice to stop the needless dying. It was a profound call. And yet it seemed impossible that rich nations would invest the sums needed to make HIV treatment available worldwide. Few expected George W Bush's 2003 State of the Union Address to mark a pivotal change. Yet it was. Bush announced the US President's Emergency Plan for AIDS Relief (PEPFAR). By 2005, with the creation of The Global Fund to Fight AIDS, Tuberculosis and Malaria, and with PEPFAR, the needed billions began to flow. What followed was unprecedented. A global advocacy and political struggle to dramatically reduce the cost of ART. A commitment to treat, for life, millions of people. The annual cost of therapy in the USA or Europe was then some $22 000, and that eventually came down to $50 per year in LMICs, making treatment feasible on a vast scale. Death rates declined. Mother-to-child transmission slowed. New and better drugs, and eventually more potent preventive tools, were developed through a massive public sector investment in HIV research. Indeed, when the US National Institutes of Health sought trial sites for the COVID-19 vaccine trials in 2020, it turned to the HIV research networks and trial sites. Until COVID-19, the HIV research effort was the largest in history devoted to a single disease. Today, we find ourselves in a challenging period. The world's attention had already moved away from HIV/AIDS as the disease shifted from almost certain death to a chronic, manageable condition. Activism, having achieved so many of its demands, shifted to a broader focus on health-care access. Funding levels were sustained, but there was a growing sense that only more equitable health systems could manage the long-term burdens of millions on therapy. Universal health coverage became a focus in global health. And HIV increasingly became an infection of more marginalised communities: sex workers, men who have sex with men (MSM), transgender persons, people who inject drugs, adolescents, and prisoners and detainees. Indeed, in 2019, most new HIV infections worldwide were in these populations, and the stigma, human rights abuses, and limited access to HIV services that had plagued the emergence years continued to be stubborn obstacles to saving lives and pandemic control. After 40 years, we still cannot provide basic public health interventions like harm reduction, needle and syringe exchanges, and drug treatment for millions of opioid-dependent people. We still focus on police harassment and abuse of sex workers, when it has been clear for years that decriminalisation and empowerment of sex workers of all genders are effective for HIV prevention. And we still have too many places where it is difficult or impossible for MSM and trans persons to access HIV services in safety and dignity. These social and structural realities have perpetuated the pandemic, not addressed its drivers, and on these vital fronts we have made far too little progress in 2021. And now we will be long unpacking the impacts of the COVID-19 pandemic on HIV. It is clear that 2020 saw global declines in HIV testing, prevention, STI services, and increases in unplanned pregnancies, gender-based violence, and so many of the social determinants that we know impact HIV outcomes. Yet, four decades of HIV experience have benefited the COVID-19 response. First, many leading scientists in HIV pivoted swiftly to COVID-19 work and helped lead their countries' efforts. Second, the HIV clinical trial infrastructures were rapidly engaged in research on COVID-19 vaccines and therapeutics. Third, the precedent in the efforts to make ART available globally, including in the lowest income and most fragile states, is also vital for ensuring equitable access to COVID-19 vaccines. The AIDS movement too saw that geography was destiny, and pushed back hard against the structures, including trade agreements and intellectual property rights, that were limiting life-saving access to too few. The HIV/AIDS pandemic is far from over. Like many who survived those terrible early decades, I've found my commitment to addressing HIV/AIDS sustained by the enduring love of those I lost. And now we are in a new pandemic, also far from controlled. Perhaps two shared lessons can be gleaned from the suffering caused by both. We know we needed sustained investment in science to develop effective therapies and prevention tools. But without global human solidarity, we would never have made HIV treatment accessible for most people living with the virus. The science of COVID-19 vaccines has been spectacular, but we will need that solidarity, and the passionate global advocacy that marked the HIV response, if we are to reach global vaccine equity and access and defeat this next pandemic. Time has not lessened the sting of the early decades of AIDS. But what was achieved in fighting HIV/AIDS was truly remarkable. And we will need that wisdom and heart in this, yet another, pandemic year. For the Lancet's collection of content to mark the 40th anniversary of the first description of patients with AIDS see https://www.thelancet.com/hiv-40This work was supported by the Desmond M Tutu Endowment at The Johns Hopkins University. I have current US National Institutes of Health (NIH) funding for HIV training and HIV research and this work is supported, in part, by the Johns Hopkins Center for AIDS Research , CFAR (NIH, NIAID, P30AI094189 ). For the Lancet's collection of content to mark the 40th anniversary of the first description of patients with AIDS see https://www.thelancet.com/hiv-40 This work was supported by the Desmond M Tutu Endowment at The Johns Hopkins University. I have current US National Institutes of Health (NIH) funding for HIV training and HIV research and this work is supported, in part, by the Johns Hopkins Center for AIDS Research , CFAR (NIH, NIAID, P30AI094189 ). HIV services in sub-Saharan Africa: the greatest gap is men40 years ago the first cases of what would become known as AIDS were reported by the US Centers for Disease Control and Prevention.1 Since then, millions of lives have been lost, but gradually remarkable progress has been made across the HIV continuum of care. By 2019, 81% of people living with HIV (PLHIV) worldwide knew their status, 82% of these were on antiretroviral therapy (ART), and 88% of individuals on ART were virologically suppressed.2 These averages, however, mask substantial variability between and within regions. Full-Text PDF 40 years of HIV/AIDS: an interview with Peter PiotJune 5, 2021, marks 40 years since the first reports of what was later known to be AIDS. Udani Samarasekera spoke with Peter Piot about the past, present, and future of the HIV/AIDS response. Full-Text PDF 40 years of HIV/AIDS: a painful anniversary40 years ago , on June 5, 1981, the US Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report included a report of a cluster of pneumocystis pneumonia cases among gay men in Los Angeles. Rare life-threatening conditions among men, women, and children were also being seen outside the USA but had not yet been reported—precursors to the coming HIV/AIDS pandemic. Since then, UNAIDS estimates that HIV/AIDS has killed 32·7 million people, with 75·7 million HIV infections globally. Full-Text PDF

When Politics Prevail Over the Rule of Law: The Demise of the sadc Tribunal

Abstract The article questions whether the Tribunal of the Southern Africa Development Community (sadc) ought to have entertained human rights cases given that the sadc Treaty does not endow it with such jurisdiction. It then analyses its demise in 2010, which was prompted by several rulings against Zimbabwe, whose policy of expropriating land without compensation was held to violate human rights. The pertinent aspects of these cases are reviewed, and the significance of Zimbabwe’s land reform programme is explained. The article elucidates why sadc leaders were prepared to suspend the Tribunal’s operation. This was a combination of alarm that it could evolve into a quasi-regional human rights court but also solidarity with the then President Mugabe, a hero of Africa’s liberation struggle. Finally, the pronouncements of the Constitutional Court of South Africa and the High Court of Tanzania on the lawfulness of the sadc Tribunal’s suspension are considered.

The Constitutional Court of South Africa: Thoughts on its 25-Year-Long Legacy of Judicial Activism

After almost 25 years of what could justifiably be called transformative change in South Africa, a truism is that the country’s new legal order, established by the Constitution in 1993 and 1996, provides the critical foundation of peace and security upon which its freedom has been built. The Constitutional Court was one of the most important of the new democratic institutions in the shaping of the country’s position as a constitutional democracy, upholding the values for which millions of people, black and white, had fought. This article is a brief reflection on the role of the Court in establishing the meaning of this democracy and giving it effect. The main goal of the article is to understand how the Court’s new jurisprudence works in particular contexts, how its work is related to crime and punishment, and what it means for the rights of marginalised groups in society. Using the examples of the Court’s decision in Makwanyane on the death penalty, and the Court’s decision on the findings of the Public Protector’s report on Nkandla, the article finds that the Court’s new jurisprudence takes quite a different view of legal developments in South Africa, insofar as the jurisprudence entrusts broad discretion to the Court and emphasises the need for sustained leadership of the Court to advance the battle for fundamental human rights, the rule of law, and democratic accountability.

‘Guardian of the Solemn Pact’ – The Role of the Constitutional Court in South Africa’s Constitutional Transition

The Constitutional Court of South Africa has played a unique role in the country’s constitutional transition. This paper starts by detailing the historical and political context of the Interim Constitution which created the Constitutional Court and the constitutional principles. The article describes the approach of the Court in the First Certification Judgment (1996), analysing the impact of the Constitutional Court’s decision on the drafting of the final Constitution and the public more generally, before briefly outlining the role that the Court continues to play in protecting constitutional democracy as a ‘Guardian of the Solemn Pact’.

The Long Road to Compensation for Silicosis Sufferers in South Africa

Silicosis has troubled the South African mining industry since the 1880s. Since 1902, several commissions of inquiry have investigated this problem but none of them recommended common-law liability as an appropriate mechanism for compensating victims. Instead, workers’ compensation has always been preferred. There is no consensus among employers, workers and governments on the model for compensation; however, a large body of literature reveals the disappointing results of common law as a compensation mechanism. Therefore, in March 2011 – when the Constitutional Court of South Africa made the celebrated decision, Thembekile Mankayi v. AngloGold Ashanti Ltd, that mine workers who contract diseases at work can sue their employers for damages – it marked the beginning of a new era in the quest for fair and just compensation for silicosis sufferers. In this article, I trace the developments around compensation for silicosis victims. I further argue that the trust settlement agreed in July 2019 may not significantly improve the situation of silicosis claimants, if at all. Contrary to the popular view that trusts represent a victory for mine workers, these institutions come with problems of their own. The article relies on evidence from local and other jurisdictions to illustrate the actual and potential problems associated with trusts as a mechanism for compensating mass claimants.

From the Campbell Case to a Recent Ruling of the Constitutional Court of South Africa: Is There Any Hope to Revive the Tribunal of the Southern African Development Community?

This article provides a critical analysis of the judgments delivered by the Regional High Court of Pretoria in the case Law Society of South Africa et al. v. President of the Republic of South Africa, the Minister of Justice and Constitutional Development, the Minister of International Relations and Co-operation and the Constitutional Court of South Africa in Law Society of South Africa and Others v. President of the Republic of South Africa and Others in order to investigate to what extent they can contribute to discuss the revival of the SADC Tribunal with all its original powers. After providing an overview of the SADC Tribunal's legal structure and the judgment delivered in 2008 in the Mike Campbell v. Zimbabwe case, the present contribution will consider the legal reasoning of the Regional High Court of Pretoria and the Constitutional Court of South Africa respectively. It will also develop some considerations of the role played by civil society groups in other SADC member states.

11 Constitutional Court of South Africa, Association of Mineworkers and Construction Union and Others v Royal Bafokeng Platinum Limited and Others [2020] zacc 1, 23 January 2020

11 Constitutional Court of South Africa, Association of Mineworkers and Construction Union and Others v Royal Bafokeng Platinum Limited and Others [2020] zacc 1, 23 January 2020

Constitutional Court statistics for the 2018 term

This note provides descriptive statistics on the work of the Constitutional Court of South Africa (the Court) in 2018, organised in a number of tables. The method of constructing each table is given in the text that follows it. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of the South African Journal on Human Rights. “ Judgments delivered” section covers those decisions in which the Court produced a written judgment while “Applications dismissed in chambers” section covers applications that were considered in chambers and dismissed without a judgment being given.