South African Constitutional Law Research Articles

Addressing the Climate Emergency: The Untapped Potential of South African Constitutional Law

Addressing the Climate Emergency: The Untapped Potential of South African Constitutional Law

Does South Africa stand accused of paying lip service towards protection of children from violent behavior?

Tapping on International and regional law, the South African constitutional law places an obligation on the state and other duty-bearers to protect every child from violence. However, the extant literature and electronic media is awash with cases of violence against children which remains high in South Africa. This review gives a synopsis of why South Africa stands accused of paying lip service towards the protection of children from different forms of violence. Keywords:

Justice Ngcobo’s Rich Legacy at the Intersection of Federalism and Democracy

 This article aims to make a connection between the Tongoane judgment, which deals with ‘tagging’ legislation, and Justice Ngcobo’s innovative thinking in the Matatiele Municipality cases, which are about the demarcation of provincial boundaries. These cases are bound together by Justice Ngcobo’s powerful commitment to democracy at the sub-national level. The judgments build accountability at grassroots level and constrain authoritarian impulses. This article examines the political issues behind provincial demarcation disputes, including ethnic impulses. It argues that current democratic concepts in South African Constitutional law can never meet the popular sovereignty, self-determinative type of claim of communities who wish to determine their own futures in boundary disputes. These disputes raise specific democratic problems that need to be named, seen for what they are and theorised on their own terms.Â

Chief Justice Sandile Ngcobo’s Separation of Powers Jurisprudence

This article examines Justice Ngcobo’s profound contribution to the development of the foundational jurisprudence on separation of powers in South Africa. The article is premised on the fact that Ngcobo can be better understood in the context of his contribution to the foundational jurisprudence. In this way, we will better comprehend how Ngcobo’s jurisprudence fits into our contemporary understanding of the Constitution. The key question this article seeks to investigate is to what extent has Ngcobo’s jurisprudence on separation of powers has impacted or shaped South African constitutional law. The article specifically investigates whether, in his contribution to the constitutional jurisprudence on separation of powers, Ngcobo developed a political question doctrine theory for South Africa. I find that he did, and that while Justice Ngcobo’s political question jurisprudence was not clearly articulated or endorsed by the majority of the Justices while he was on the bench, the Constitutional Court has recently unanimously endorsed some of his political question doctrine theories and arguments thereby crystallising the political question theory in South Africa. The article examines Ngcobo’s contribution through the lens of the judgments that he penned as well as his academic commentaries

Remedial Principles and Meaningful Engagement in Education Rights Disputes

This article evaluates the meaningful engagement doctrine in the education rights jurisprudence of the Constitutional Court in the light of a set of normative principles developed by Susan Sturm for evaluating participatory public law remedies. It commences by identifying four principles for evaluating participatory remedies appropriate to South African constitutional law and jurisprudence. Thereafter the relevant jurisprudence is analysed and evaluated in the light of these principles. The article concludes by making proposals for the development of meaningful engagement as a participatory remedy in educational rights disputes. These proposals seek to ensure a better alignment between the meaningful engagement remedy and the four remedial principles identified. 
 

The Admission and Enrolment of Foreign Legal Practitioners in South Africa under the Legal Practice Act: International Trade Law and Constitutional Perspectives

Globalisation requires ever closer co-operation between legal professionals hailing from different national jurisdictions. This interactive global environment has fostered growing international training and mobility among legal practitioners and the internationalisation of legal education. Increasing numbers of law students get trained in other countries as part of their undergraduate degrees or even come to foreign shores to obtain law degrees. Many students hailing from other African countries study towardsLLBdegrees at South African universities. Major commercial law firms ensure that they can offer in-house expertise on major foreign legal systems and co-operate with partner firms in other parts of the globe.
 The General Agreement on Trade in Services (GATS), to which South Africa is a party, is a multilateral agreement focusing on the liberalisation of trade in services amongst member countries. Services under the GATS system include legal services. The commitments made by South Africa under this agreement require that South Africa allows foreign legal practitioners to establish a commercial presence or be transferred to South Africa. The Bill of Rights entrenched in Chapter 2 of the South African Constitution guarantees fundamental rights including the right to equality and freedom of trade, occupation and profession. With the coming into force of the new Legal Practice Act 28 of 2014, which provides a legislative framework for regulating the affairs of legal practitioners, including their admission and enrolment, it is necessary to assess the extent to which the Act complies with the GATS rules and the South African Constitution.
 This paper examines the new Legal Practice Act 28 of 2014, and examines whether the Act addresses the conflicts that have always existed between the regulation of the legal profession and the admission of legal practitioners in South Africa with South Africa's commitments under the GATS system. Using the doctrinal legal method, it analyses and evaluates the rules governing the admission of foreign attorneys in South Africa from two perspectives. First, it considers them in the light of the international law obligations of the country and second it evaluates whether or not they comply with the South African Constitution, and more specifically with the Bill of Rights entrenched in the South African Constitution. While the new legislation may assist in ensuring the compliance of South Africa with the relevant GATS rules, it will depend on the regulations which still have to be promulgated to what extent the new legal framework will achieve the full compliance of South Africa with all relevant GATS rules.
 The paper concludes with recommendations for the reform of the Legal Practice Act. It argues that while the requirement to be a South African permanent resident in order to qualify for admission as an attorney may be justifiable in terms of GATS and in terms of South African constitutional law, it is not in South Africa's best interest to retain it. Consequently, the paper calls for the repeal of the permanent residence requirement for admission as an attorney in the county.

To what extent should the Convention of Cabinet Secrecy still be recognised in South African constitutional law?

This note deals with the question whether, under the present-day South African constitutional law, members of the public are entitled to any information held by cabinet (the national executive). This question is considered with specific reference to the law of comparative jurisdictions. Two competing principles must be considered: on the one hand, the constitutional right of access to information held by the state (cabinet information in the present case) and, on the other hand, the convention of cabinet secrecy. The latter originated in English constitutional law, which might be argued to have been inherited by South Africa.

The South African Companies Act and the Realisation of Corporate Human Rights Responsibilities

The Companies Act 71 of 2008 (the Companies Act) was promulgated in April 2009 and came into effect on 1 April. The purpose of this Act is, among other things, to promote compliance with the Bill of Rights as provided for in the Constitution of the Republic of South Africa, 1996 (the Constitution), in the application of company law. This gives recognition to the constitutional imperative to bring company law within the South African constitutional law framework. This article argues that by including the promotion of compliance with the Bill of Rights as provided for in the Constitution in the application of company law, the Companies Act effectively reinforces a duty for companies to ensure that they should always seek to prevent violations of human rights, particularly those human rights that are directly linked to their operations. This article looks at certain provisions in the Companies Act and argues that the inclusion of these provisions if interpreted in a certain manner will reconcile the values and practices of company law with the related human rights concerns. It argues that the inclusion of the Bill of Rights in the application of company law ensures that human rights concerns are also considered within the functioning of the company. The article then looks at the various provisions in the Act which have the potential to ensure that this position is achieved in the application of company law.

The Ebb and Flow of the Separation of Powers in South African Constitutional Law – the Glenister Litigation Campaign

The Ebb and Flow of the Separation of Powers in South African Constitutional Law – the Glenister Litigation Campaign

The South African Common Law and the Constitution: Revisiting Horizontality

Despite an initial flurry of interest in the direct horizontality of human rights, the doctrine’s place in South African constitutional law is now accorded a diminishing importance in judgments and journals. I argue that this is a result of a misunderstanding, by both courts and academics, of what horizontality is for and how it works. Since direct horizontality, properly understood, is central to the coherent development of South Africa’s rights jurisprudence, I aim to reinvigorate debate about horizontality by offering a new and comprehensive account of its mechanics and purpose. The account turns on a distinction between ‘horizontality’ and ‘direct horizontal application’, the implications of which run counter to some of the most widely accepted views about the Constitution’s influence on the private law.

Extreme Elective or Cosmetic Surgery and Controversial Patient Choice: A Constitutional Analysis

The specific fundamental human rights protected in the Bill of Rights that come into play when patients make controversial requests for extreme forms of cosmetic surgery are discussed. The meaning of human dignity in South African constitutional law forms the focus of the first part of this article. By applying a constitutional conception of human dignity, the question is answered whether extreme forms of cosmetic surgery most likely promotes or impedes human dignity. In this regard, the relationship between autonomy and dignity and the question whether autonomous individuals should be prevented from participating in activities that might limit their dignity is addressed. The same enquiry is made concerning the other fundamental human rights that are applicable to extreme forms of cosmetic surgery. This includes the right to bodily integrity and the right to privacy. The limitation of these fundamental human rights in terms of s 36 of the Constitution is then addressed.

Sandra Liebenberg. Socio-Economic Rights. Adjudication under a Transformative Constitution

Writing in 2001 shortly after the South African Constitutional Court decided the celebrated housing-rights case Grootboom, Cass Sunstein hailed the Court's decision as establishing novel and promising approach to judicial protection . . . for each person whose socio-economic needs are at risk. Sunstein referring to the Court's application of what it called reasonableness review to issue an order requiring future modification of the challenged housing policies rather than a direct injunction providing housing for the plaintiffs in Grootboom who were facing eviction. For Sunstein - who only eight years earlier had argued strongly against inclusion of social rights in the constitutions of developing East European democracies - the distinctive virtue of the Grootboom approach that it suggests that such rights can serve, not to preempt democratic deliberation, but to ensure democratic attention to important interests that might otherwise be neglected in ordinary debate. In a short response, Theunis Roux wrote that Grootboom's limited remedy was not extraordinary enough because the Court's failure to, at a minimum, oversee compliance with even the very general terms of its order (much less provide any direct relief to the plaintiffs) fell far short of the expectations of advocates for the poor in South Africa and South African constitutional law experts more generally.

The right to basic education, the South African constitution and the Juma Musjid case : an unqualified human right and a minimum core standard

The 2011 decision by the Constitutional Court (CC) in Governing Body of the Juma Musjid Primary School and others v Essay NO and others, which dealt with the right to basic education in the context of an application for the authorisation of the effective eviction of a public school conducted on private property, provides us with telling insight about the possible scope and content of the right to basic education guaranteed in section 29(1) of the South African Constitution (Constitution). More than 16 years after the enactment of the CC has not had an opportunity to provide clarity on the scope and content of the right to basic education. Although the CC did not (and was not required to) provide full clarity on this issue in the Juma Musjid case, Justice Nkabinde provided pointers to assist with understanding the scope and content of the right to basic education guaranteed in section 29(1) (a) of the Bill of Rights, affirming that the right - unlike some of the other socio-economic rights - is immediately realisable. The CC confirmed that because there is no internal limitation in section 29 (1) (a) requiring access to the right, that the right be progressively realised within available resources subject to reasonable legislative measures, the right to a basic education in section 29 (1) (a) may be limited only in terms of a law of general application which is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Indeed, while all socio-economic rights in the Constitution provide for negative and positive obligations, the right to education is unique in that it includes the right to basic education, which unlike the right to housing and the right to water has no internal qualifiers. That recognition of the fundamental difference between the obligations engendered by section 29 (1) (a) and the obligation engendered by other social and economic rights protected in the Constitution forms the basis of the analysis in this article. In this article the author advances the argument that basic education is not only an unqualified human right but that section 29 imposes an obligation on the state to provide a minimum core of that right to everyone. It must be conceded that the CC has indeed previously stated that the international law concept that social and economic rights place a minimum core obligation on the state cannot be uncritically imported into South African constitutional law and that, at best, it can be used to assist the CC to determine whether or not the state had acted reasonably. However, the contention in this paper is that the recognition by the court judgment in the Juma Musjid case of the unique formulation of section 29 (1) (a) when compared and contrasted with other socio-economic rights already interpreted by the CC, should consequently lead the CC to accept that the minimum core concept applies to the interpretation of section 29 and section 29 (1) (a) which is that the right to basic education should be regarded as the minimum core standard of the right to education in South Africa.

Why Courts Should not Sanction Unfair Discrimination in the Private Sphere: A Reply

This article addresses the question as to whether religious associations should be granted an exemption from legal anti-discrimination provisions relating to their employment practices. It focuses on responding to criticisms mainly by Patrick Lenta of my position that, in general, no such exemptions should be granted. The key issues I address are the following. Firstly, I shall consider the relationship between South Africa’s particular context and the approach to be adopted towards interpreting and balancing fundamental rights in South African constitutional law. Secondly, I shall contend that religious associations do violate liberal reciprocity when seeking such an exemption and respond to Lenta’s argument in this regard. Thirdly, I shall consider the harms of discrimination by religious communities upon the equal citizenship of vulnerable groups and distinguish these from the distress caused by refusing members of religious associations exemptions from anti-discrimination legislation. Finally, I shall discuss the question of remedies and the possibilities they allow for encouraging religious associations to act in ways that are consonant with South Africa’s constitutional democracy.

The role of transboundary dialogue : a response to Stephen Ellmann

The novelty of Ellmann's paper derives primarily from the fact that it moves beyond the separation of powers and counter-majoritarian based critiques and analyses that have dominated academic discourse about South African constitutional law. For instance, in the second edition of the Constitutional law of South Africa, Woolman and Botha outline the multi-part structure of the fundamental rights analysis. The authors describe interpretation as characterised by a two-fold process: determining the meaning or the scope of a fundamental right followed by a determination of whether the right has been infringed. In most instances, a finding that the right has been limited leads to a third stage: limitations analysis. Under section 36, courts are, quite 'controversially', given the power to decide whether a democratically conceived law's infringement of a fundamental right indeed violates the Constitution or whether, in fact, the infringement of a right can be justified.

Dignity and Equality

Inequality remains one of the most challenging issues on the global human rights agenda. It is widely recognised that a formal approach to the assessment of inequality has failed to eliminate entrenched structural social and economic inequality and that a different approach is required in order to tackle the roots of inequality and achieve substantive equality. In seeking to implement an approach to equality that addresses the history of apartheid and the social and economic inequality endemic in South African society, the South African Constitutional Court has rejected formal equality, and is in the process of developing a substantive interpretation of equality based on the protection of human dignity. Critics of this approach have argued that the concept of human dignity is too indeterminate to provide a stable foundation for equality law and that it promotes an excessively individualistic conception of equality. Focussing on key developments in defining human dignity in German and South African constitutional law, this article argues that the concept of dignity is rooted in a rich tradition which is capable of underpinning an approach to equality which avoids excessive individualism and fully recognises the interplay between individual and community needs. A detailed exploration of the equality jurisprudence of the South African Constitutional Court reveals how the dignity-based approach has been developed in order to provide a framework within which the actual experience of victims of discrimination can be explored. It is concluded that this approach has the potential to engage with the realities of the wide range of divisions within South African society and their effects in order to address not only the legacy of apartheid but also to contribute to the creation of a society in which every person is valued equally.

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.

South African Constitutional Law. By Dion Basson and Henning Viljoen. [Cape Town: Juta & Co.1988. xv, 347, (Appendix) 50, (Bibliography) 7 and (Indexes) 12 pp. R68–00 net.

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The Transkeian constitution: manifestation of diffusion and rediffusion of constitutional technology or Westminster transplanted?

Abstract With the written constitution now nearly universal, it's effectiveness is gravely doubted. Today the state as an institution stands supreme and although the function of a constitution in the life of the state is uncertain, it is regarded as an almost inseparable part thereof. Constitution and constitutionalism has parted, disowning numerous westernised institutional traditions. The Transkei constitution is to a large extent a borrowed one, and therefore it should be seen against the background of British and South African Constitutional law and theory. However, the failure of Westminster systems in the rest of Africa cannot be ignored. The constitutional development of Transkei differs considerably from that of colonies elsewhere in Africa. The phenomenon of constitutional autochthony which their independence brought to the fore, poses the question whether this also obtains in the birth of a new state such as Transkei. Whether measured in terms of legal continuity in the constitution‐making proce...