Constitutional Dispensation Research Articles

EDITORS’ NOTE

You hold in your hands the very first edition of the Pretoria Student Law Journal. It has been a tremendous journey in completing the first edition, due largely to the process of finding our feet in everything from footnote styles to page sizing to the task of editing the articles(which in truth was made simple by the exceptional quality in contributions and contributors). The spirit with which the many who made this possible have worked has enabled the creation of a fantastic opportunity for us, as students, to publish our own concepts and ideas. Academic legal writing in South Africa has, with a few exceptions, traditionally been the domain of lecturers and practitioners. One result of this is that, as students, we tend to forget that law applies to the whole society. As citizens (and especially as legally trained citizens) we have a right – even a duty – to think critically about the laws which govern our society. We need to question and to analyse deeply whether the positive law as it stands necessarily meets its objectives. Where it doesn't, we must highlight its shortfalls precisely because we are part of a broader society. With our Constitutional dispensation and the prominence it gives to the rule of law, we must further determine whether our current law meets the demands that we, as society, set for it in 1993 and 1996. The PSLR represents a forum to students for at least a small portion of this debate. It has been started with two main aims – to stimulate critical legal thought amongst law students and to develop students’ writing and research skills. As a student-run journal for publication by students it is entirely dependant on student support. We appeal for, request, encourage – even demand – criticism, submissions, assistance and any other form of participation, because without it, this project will lack the richness it may otherwise have had it. The PSLR represents a student voice in a previously exclusive domain - it's up to you to use it and make it strong.

INEQUALITY, ETHNICITY AND THE FIGHT AGAINST CORRUPTION IN AFRICA: A KENYAN PERSPECTIVE

Perceptions of inequality among different ethnic groups have the power to shape the fortunes of nations by affecting the political and economic choices of both ruling elites and their voters. In ethnically heterogeneous African states with a tradition of political patronage economic inequality is manifested along ethnic and regional lines. This paper argues for a constitutional dispensation that includes both the diffusion of executive power and systematic action in regard to structural economic inequalities that have assumed an ethnic expression.

The right to safety as part of the human rights discourse

The South African constitutional dispensation, incorporating within it a very sophisticated and highly regarded human rights framework, has been central to the structural transformation of South African society. Against the backdrop of the South African Constitution, and in relation to the complexity of the threats to safety facing South Africans, this paper considers efforts to enhance the safety and security of individuals and communities as informed by South Africa's new rights framework. The paper concludes that safety is an integral part of understanding and constructing the rights discourse.

Kristin Henrard. Minority Protection in Post-Apartheid South Africa: Human Rights, Minority Rights, and Self-Determination. Westport Conn.: Praeger, 2002. xvi + 310 pp. Notes. Bibliography. Index. $ 69.95. Cloth.

Kristin Henrard. Minority Protection in Post-Apartheid South Africa: Human Rights, Minority Rights, and Self-Determination. Westport Conn.: Praeger, 2002. xvi + 310 pp. Notes. Bibliography. Index. $ 69.95. Cloth. One of the most remarkable features of South Africa's postapartheid constitutions is the elaborate accommodation of minority rights, especially with regard to language, religion, customary law, and the right to internal self-determination. Under apartheid, the discourse of group rights and the separate destinies of South Africa's diverse population groups was used as a divide-and-rule ideology to legitimize white domination. In reaction, the African National Congress (ANC) and its allies have emphasized the unitary nature of the South African state and the essential equality of all its citizens, regardless of race or ethnicity. The ANC's universalist concept of mankind, with its strong emphasis on egalitarianism, left little space for discussion about the status of customary law and chiefs (feudal relics and stooges of apartheid), the status of Afrikaans (the language of the oppressor), or ethnic identities (false consciousness). The liberation discourse stressed the concept of nonracialism, not multiracialism. The ANC also was clearly influenced by the ideology of its loyal ally, the South African Communist Party, in which class rather than race or ethnicity was seen as the fundamental organizing principle of society. Not surprisingly, the principle of equality in all its dimensions was the ANC's overriding concern for the new constitutional dispensation. But the former liberation movement proved amazingly willing to engage in attempts to reconcile the principle of racial, religious, and gender equality with the protection of ethnic and religious minorities. Ethnic minorities were irredeemably burdened by the apartheid legacy, but since their rebirth as cultural communities they have received a fairly generous deal. Customary law has been recognized (including polygamous marriages), chiefs have retained their official status and improved their salaries and stature, eleven South African languages have been recognized as official languages, and efforts have been made to accommodate Muslim personal law. Minonty Protection in Post-Apartheid South Africa explores the intriguing question of how to undo minority rule while protecting minority interests. Henrard describes in considerable detail the relevant sections of the 1993 interim constitution and the-slightly less generous-final constitution of 1996. …

Die kerk en openbare beleidsvorming – ’n praktiese voorstel vir gereformeerde getuienis

Church and public policy – a practical model for reformed witness The transition to a new constitutional dispensation in South Africa during 1994 has fundamentally changed the relation between church and state. The main differences between the old and new dispensation that have a direct influence on the public role of the church as institution are, inter alia, the following: the change from parliamentary sovereignty to constitutional supremacy, the change from a theocracy to a neutral state, and from a representative form of democracy to a participative form of democracy. The crucial question at this stage is: How should the church as institution fulfil its prophetic task towards society within the new constitutional context? This article attempts to answer the question by focusing on constitutional guarantees of religious rights, main principles for prophetic witness within a neutral state and pluralist society, and existing church structures for public engagement. The hypothesis of this article is that reformed churches should become involved in the legislative processes of the country by establishing a reformed monitoring body of legislation. This will be the most effective way of influencing public policy.

Coming to Terms with Judicial Enforcement of Socio-Economic Rights

The debate about judicial involvement in socio-economic rights, inaugurated in the SAJHR in 1992 and still continuing, should be reconceptualised so that it can make a constructive contribution to contemporary discussions about an appropriate judicial role in a socially just constitutional dispensation. Many of the fears raised by participants in this debate about the legitimacy and competence of the judiciary in socio-economic rights matters are misplaced. The provisions of the 1996 Constitution require a dramatic reconceptualisation of both the operation of separation of powers generally and of the role played by the judiciary within the doctrine. However, the continuing influence of South Africa’s pre-constitutional legal culture means that judges remain uncomfortable with the role that the Constitution requires them to play. Post-1996 South African courts are not only permitted, but are constitutionally obliged to give meaning to socio-economic rights through interpretation, to evaluate government compliance with the duties they impose, to pronounce on the validity of legislation and policy in the socio-economic sphere and to remedy state non-compliance with socio-economic obligations. This article engages briefly with these obligations in an attempt to illustrate that it is possible to strike a balance between judicial vigilance and deference in every stage of socio-economic rights adjudication. It also notes that the Constitutional Court has carried out these obligations in a remarkably tentative manner in the socio-economic rights cases it has heard, despite its unequivocal affirmation of its authority in such cases.

A simulation of a proposed three-phase method for proportional representation in South Africa

In October 1922 the President's Council of the Republic of South Africa approved a report on a proportional polling system for the country in a new constitutional dispensation. A three-phase method is proposed to ensure that there is not only proportionality with respect to the electoral regions of the country, but also on a party basis with respect to the votes cast in the election. A lower house of parliament with 400 seats is proposed. In the first phase 300 of the seats are made available to the various regions in proportion to the number of eligible voters in the respective regions. In the election the various parties compete for these 300 seats in the different regions. The second phase consists of allocating the seats to the parties on the basis of the actual votes cast for them in the regions. Because of factors such as variable percentage polls and support for the parties in the separate regions, it could happen that a particular party's portion of the 300 seats is not in accordance with the votes that it receives nationally. In the third phase the remaining 100 seats are used to rectify such situations. On the basis of the votes cast, these 100 seats are used for compensatory purposes, so that the final allocation of the 400 seats to the parties should be proportional to the support for the parties in the election. Fixed regional party lists of candidates for the election and the Jefferson allocation method are used in the applicable phases. We translate the pose of the President's Council report into formal mathematical descriptions of the proposed methods. Several hypothetical examples are used to illustrate the methods and to point out possible problems. A computer program which implements the methods is described briefly and is used to simulate various elections. These simulations show that 100 compensatory seats should be sufficient for the purpose for which they were introduced. We hope that our descriptions and analyses will contribute to the debate on an acceptable and practical electoral system in a new South Africa.

The South African balance of payments in the 1990s

The most important development in South Africa in the 1990s was the adoption of a new constitutional dispensation. This impacted on every aspect of life in South Africa, including the economy in general and the balance of payments in particular. The democratisation in the political sphere was accompanied by the reintegration of the South African economy into the international economy. The experience was often traumatic, since the world economy itself had undergone radical changes since South Africa was isolated.

Gender Equality & Religious Family Laws in South Africa

South Africa has a multicultural, multi-ethnic and multi-religious society in which various communities live according to their own customs and usages. At present the law of South Africa generally does not recognize the validity of some of these customs and usages as law. The result is that adherents to religious legal systems live under state law in the public sphere, which is the common law and, with regard to their private life, according to non-state law, which is religious customs and usages. This article deals with the consequences of non-recognition of religious family laws in South Africa and, especially, its effect on the legal status of women adhering to certain religious legal systems within the new constitutional dispensation of South Africa.

Preventing Mother-to-Child HIV Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action Campaign Case against the Minister of Health

This paper contextualises the litigation that challenged the South African government’s PMTCT policy and documents its causes and effects. It examines the resort to constitutional litigation by civil society organisations after being frustrated by what Cameron JA described in another context as ‘a pitiable saga of correspondence meetings calls appeals entreaties demands and pleas by public interest organisations’. More practically it describes a ‘contempt of people and process that does not befit an organ of government under our constitutional dispensation’. The TAC case is an interesting one both inside and outside of the legal proceedings. It raises important issues about the functional independence of the public service from the Executive on matters where there is political sensitivity and pressure. It suggests how human rights disputes might increasingly revolve around socio-economic rights and it demonstrates that skillful litigation can take advantage of constitutional promises. Finally the outcome of the case validates the Constitution and should confirm to those who still suffer marginalisation and deprivation that the Constitution can materially impact on and better their lives. It need not be as former Justice Minister Omar once suggested ‘a wonderful document’ but one which ‘because of the imbalances we have inherited . . . will be the sole preserve of the rich and powerful’. (excerpt)

Grondwetlike waardes, openbare administrasie en die reg op toegang tot omgewingsinligting

Constitutional values, public administration and the right of access to environmental information During the previous constitutional dispensation in South Africa the management of information tended to be excessively secretive. This position was changed by section 32 of the Constitution of the Republic of South Africa, 1996. According to the 1996 Constitution South Africa is a sovereign, democratic state founded on certain values such as human dignity, freedom and equality. The public administration is governed by democratic values and principles such as transparency. In this article the constitutional values and principles that underlie an open and democratic society are discussed. Thereafter the right of access to information and the legislation that gives content to this right are analysed. It is concluded that the right of access to information can provide opportunities to the public sector, the private sector and the general public to form partnerships in sharing environmental information in order to fulfil their constitutional obligations.

Some recent developments in the legal relationship between parent and child

This article is based on a paper read at the Oxford Round Table Sir William Blackstone Colloquium on Public School Law in Oxford in 2000. Living and working in the 18th century, Sir William Blackstone was one of the most prominent English lawyers of all time, his influence still enduring in England and in many other countries with historical links with England. Because Blackstone regarded the relationship between parent and child as very important, the author therefore traced it through three broad periods: Blackstone's own times, South Africa before 1994 and South Africa after 1994. In preparing the paper, the author realised that many changes had taken place in the legal relationship between parent and child in South Africa since 1994 and that their implications for education management need to be explored. Education law literature in South Africa is certainly still largely dominated by the law as it was before 1994; so are the management implications drawn from it. The article has four sections: first, aspects of the parent-child relationship in South African law before the new Constitutional dispensation; second, relevant developments in South African under the new Constitution(s) and finally, a conclusion.

Gender Equality, Constitutional Values and Religious Family Laws in South Africa

South Africa has a pluralistic society in which various religious and cultural groups, such as Muslims and Hindus, live according to their own customs and usages. At present the law of South Africa generally does not recognise the validity of some of these customs and usages, for example marriages concluded in terms of Islamic law or Hindu law are not recognised as valid marriages. The consequences of non-recognition have been particularly unfair to women. There have been calls for the recognition of other family law systems and, in particular, for the recognition of Islamic family law. The Constitution of the Republic of South Africa, 1996 recognises the cultural diversity of South Africa and provides for the enactment of legislation recognising other systems of law based on religion or culture. However, such legislative recognition must be consistent with the Bill of Rights and other provisions of the 1996 Constitution. All inequalities between men and women should therefore be dealt with before legislative recognition is given to family law systems that discriminate against women. In this paper the obvious tension between gender-equality and freedom of religion within the new constitutional dispensation is discussed. In doing so, the focus will be on Islamic law and the position of Muslim women with respect to inheritance laws.

The impact of the Constitution on the South African criminal law sphere

In this article the extent of the impact of the new constitutional dispensation on the South African criminal law sphere is discussed. The influence of the Constitution on certain criminal offences, sentencing, justifiable homicide and specific presumptions are focussed on. (J. for Juridical Science: 2001 26 (3): 116-135)

Its a ‘Black Thing’: Upholding Culture and Customary Law in a Society Founded on Non-Racialism

ABSTRACTThis article engages with the racial distinction inherent in legal dualism and the application of customary law, and questions the justification for upholding this distinction in a society founded on non-racialism. After exploring the theoretical foundations of racialism and the links between racialist and culturalist ideology, the article engages in a brief historical overview of legal dualism in South Africa before investigating the manifestation of racialist ideology in legislation and judicial decisions involving the recognition and application of customary law. Concluding that upholding legal dualism frustrates the constitutional founding value of non- racialism, the article then contemplates instances of unfair discrimination on the ground of race relating to various aspects of legal dualism, choice of law as well as customary rules themselves. Thereafter, the article discusses the importance of protecting cultural identity and cultural rights in the constitutional dispensation, and attempts to locate customary law within this realm of protection. Keeping in mind the constitutional imperative to develop the common law and customary law in accordance with the spirit, purport and object of the Bill of Rights, the article finally investigates ways in which cultural values and customary law could be accommodated in the South African legal system. In particular, the article argues for the harmonisation and integration of common law and customary law in a manner that allows for interaction between these systems without perpetuating legal dualism.

The Constitutional Right to Just Administrative Action—Are Political Parties Bound?

ABSTRACTThree fundamental issues are examined in order to answer the question whether political parties are bound by the constitutional right to just administrative action:1. Multi-party democracy is a founding value of the South African constitutional dispensation. Political parties are given a special role and occupy an important if not critical position in this dispensation. They are protected, supported and their interests are promoted by the Constitution and by national legislation. They are recognised as an essential part of government.2. A constitutional right to just administrative action is unique. However, that right in the South African Constitution does not stand alone, but is buttressed by various provisions which emphasize open, fair, responsive and accountable government. That the right and the notions of open, fair, responsive and accountable government are important to our new constitutional democracy is clear.3. The application provisions of the Constitution are specific and expansive. The Constitution specifically applies not only to the legislature and the executive, but also to the judiciary as well as specifically defined organs of state. It also applies to natural and juristic persons, but only in certain circumstances.The conclusion reached is that, in certain circumstances, political parties are bound by the right to just administrative action because they are considered organs of state in some of those circumstances and in others because the Constitution is applicable to them as juristic persons.

The 1993 Constitution of the Republic of South Africa - The Constitutional Court

The South African interim constitution (Act 200 of 1993) provides inter alia for a supposedly independent Constitutional Court which is mandated to act as the guardian of the post-apartheid constitutional dispensation.This Court is granted extensive powers of judicial review by the interim constitution. In an attempt to make a distinct break from the previous political and constitutional dispensation, a centralized constitutional court model has been chosen. This has been done in spite of the country's common-law tradition and a general preference for a decentralized model which existed in the early periods of the 1990-93 transition period.The appointment process spelt out in the interim constitution appears unlikely to guarantee a politically independent court. This is borne out by the initial composition of the court which is strongly biased in favour of the majority party in the Government of National Unity, the African National Congress. A high degree of judicial activism and the politicization of the court and South African constitutional law appears likely.

The new constitutional dispensation: what type of system?

The Constitution is a product of negotiation and compromise. This is a consequence of the nature of the transition (no single victor) and a divided society. Part of the compromise concerns the crea...

The basic needs approach to development: The question of health care for black people in Natal1

Health care is an important facet of the basic needs approach. Health care for black people in Natal is fragmented both with regard to the responsible authority (Department of National Health and Population Development, Natal Provincial Administration, Development Services Board, local authorities and welfare clinics) and spatially (since there is an overlap with KwaZulu health services). Access to health facilities (permanent and mobile), although adequate in some areas, is insufficient in others: the deficiency is most marked in rural areas and with regard to permanent health facilities. Crucial statistical data pertaining to health status are inadequate partly because of the aforementioned fragmentation and partly because they are collected for administrative rather than monitoring purposes. Questions are posed regarding future access to health care in the light of the new constitutional dispensation, privatisation and the inadequate attention being given to primary health care.

Paradigmaverskuiwing in Afrikanerdenke

Abstract The question of a possible shift of paradigm in the mainstream of Afrikaner thought is raised in the light of the political reforms which started with the 1977 constitutional proposals of the National Party and which were given concrete shape with the new constitutional dispensation in 1983. Following an investigation of the concept of paradigm and its original formulation in philosophy of science the use of the term in the field of political thought is explored. The possibility of a shift in the paradigmatic core structure in the mainstream of Afrikaner thought is investigated from the basis of the distinction between paradigmatic core structure (ideology), paradigm formulation (official policy) and paradigm applications (execution of policy). An important insight which becomes possible through the distinction amongst these three levels is that shifts in the latter two levels do not necessarily mean a shift on the former level. Through an explanation of the paradigmatic core structure of Afrikaner thought in terms of experiential awareness of Afrikaner identity, three patterns of identification are distinguished which correlate with three policy alternatives with regard to power sharing. Cultural identity and political power remain inextricably linked in the first two patterns of identification and the concomitant correlating policy viewpoints. Therefore only a transition to the third pattern of identification (a differentiated experiential awareness of Afrikaner identity) and policy alternative (true power sharing) would constitute a real shift in the paradigmatic core structure. The possibility of such a new paradigmatic core structure having already reared its head within the ruling Afrikaner elite does not exclude the continued existence of the old paradigmatic core structure, but can serve, amongst others, as an explanation for the “ideological struggle” which is raging in the National Party.