School of Law (Journal Articles)

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Adjudicating affirmative action within a normative framework of substantive equality and the Employment Equity Act – an opportunity missed?
(Juta and Co, 2015) Albertyn, Catherine
The development of a constitutionally informed legal standard to test employment equity plans and affirmative action measures will always be troubled in a country that has seen racial classification serve as the basis for oppression and subordination, and now seeks to use it in achieving a ‘non-racial’ democracy. Contestation over how to secure redress, restitution and substantive equality are inevitable. The Barnard judgment demonstrates a common commitment to restitution and transformation, and, indeed, a common outcome. However, between that commitment and the outcome lie important differences in philosophical and legal approaches to equality, to s 9 of the Constitution and s 6 of the Act (and the relationship between them), to the standard of justification for positive measures and to the need for courts to engage substantively with crucial issues in our democracy. In this case-note, after setting out the case history and judgments in some detail, I explore the contrasting ideas of equality that underpin the different approaches to positive measures and discuss which is best suited to our constitutional project. I then suggest how this normative framework can inform the adjudication of employment equity plans and affirmative action measures under the Employment Equity Act. No single judgment in Barnard achieves this.
Cartoon controversies: law student views about free speech and Zapiro’s satirisation of South Africa’s president
(Taylor & Francis, 2017-05-22) Bronstein, V.; Glaser, D.; Werbeloff, M.
Although the Constitutional Court has been a protector of freedom of expression, major controversies about speech illustrate deep divisions among South Africans. This article explores attitudes of law students at the University of the Witwatersrand to freedom of expression. The authors take the realist view that these students are future legal interpreters of the Constitution and their attitudes may well have an impact on future jurisprudence. They follow-up previous research which measured attitudes to political freedom of expression by asking students about their responses to a sample of Zapiro cartoons depicting President Zuma. After exploring the role of cartoons in a democracy, the article looks at new data obtained by questioning final year students about the same cartoons four years after the initial study. The new data substantially confirms earlier results which indicate that Wits students would not robustly support Zapiro’s right to create his more controversial caricatures. This result reinforces the view that supporters of freedom of expression in South Africa may not be able to call upon consistent or robust elite and popular support in resisting banning or criminalisation of speech.
Citizenship, xenophobic violence and law's dark side
(2010-02-08) Klaaren, Jonathan
This paper discusses xenophobic violence and the role of South African law.
Constitutional Authority to enforce the rights of Administrative Justice and access to Information
(Juta, 1997) Klaaren, Jonathan
Analysis of the constitutionality of two sections of the Bill of Rights.
Constitutional court statistics for the 1998 term
(Juta, 1999) Klaaren, Jonathan; Dagut, Helen; Mochaba, Khahliso; Phalane, Jack; Singh, Anushka
Descriptive statistics on the work of the Constitutional Court for the 1998 term.
Constitutional court statistics for the 2003 term
(Juta, 2004) Klaaren, Jonathan; Stein, Nikki; Madekurozwa, Bulewa Rudo; Xulu, Carolina Nomphumelelo
Descriptive statistics on the work of the Constitutional Court for the 2003 term.
Constitutional court statistics for the 2004 term
(2005) Klaaren, Jonathan; Stein, Nikki; Xulu, Carolina Nomphumelelo
Descriptive statistics on the work of the Constitutional Court for the 2004 term.
Developing the common law of breach of promise and universal partnerships: rights to property sharing for all cohabitants
(Juta Law, 2015) Bonthuys, Elsje
The Constitutional Court's 2005 judgment in Volks NO v Robinson' has been widely regarded as a setback for the extension of legal rights to opposite-sex cohabitants. The majority of the court held that an unmarried opposite-sex cohabitant is not a spouse under the Maintenance of Surviving Spouses Act 27 of 1990.2 According to Smith, this judgment 'effectively put paid to the judicial extension of matrimonial law to unmarried opposite-sex cohabiting life partners'
A duty of support for all South African unmarried intimate partners Part 2: developing customary and common law and circumventing the volks judgment
(Potchefstroom Electronic Law Journal, 2018-10-19) Bonthuys, Elsje
Part I of this two-part article argued that post-constitutional developments of the right to support have excluded the largest and most vulnerable sector of South African women – African women in invalid customary marriages and in intimate partnerships which do not resemble monogamous Western nuclear households. Part II explores the avenues to develop customary and common law to extend rights to support to these women. It argues that the current position discriminates against poor, rural African women on multiple intersecting grounds, which creates a duty for courts to develop the current legal rules. Customary law affords scope for development in relation to women in invalid customary marriages. Common law rights to support can be extended either ex contractu or ex lege. Because contractual support rights are of limited use to poor women, the legacy of the majority judgments in Volks v Robinson 2005 5 BCLR 446 (CC) (Volks) must be confronted to strengthen the legal basis for an automatic duty of support to all women in unmarried intimate relationships. The argument in Volks that, women choose to forego legal rights by not getting married is criticised. The minority judgment in Laubscher v Duplan 2017 2 SA 264 (CC) does, however, create potential for overturning this reasoning.
A duty of support for all South African unmarried intimate partners Part I: the limits of the cohabitation and marriage based models
(North-West University, 2018-10-19) Bonthuys, Elsje
The democratic Constitutional dispensation has led to the gradual extension of spousal duties of support to unmarried couples who hitherto could not legally claim support from their partners or from third parties who had unlawfully caused the death of their partners. The new recipients of rights to support can be divided into three groups: wives in Muslim religious marriages, partners in same-sex intimate relationships and unmarried opposite sex cohabitants whose relationships closely resemble civil marriage in both form and function. However, certain distinctive features of customary marriage, the continuing consequences of apartheid policies for African families and certain distinctive patrilineal features of traditional African families have largely excluded African women – who constitute the largest and most economically vulnerable group of women – from the benefits of these developments. Part one of this two-part article analyses the trajectory of the developing right to support intimate partnerships which appear to be based either on marriage (in the case of Muslim marriages) or relationships similar to marriage, including monogamy and permanent co-residence in the case of same-sex and opposite sex partners. This leaves no room to extend rights to unmarried intimate partners whose relationships do not fit the template of civil marriage and, in particular, excludes many disadvantaged African women from obtaining legal rights to support from their relationships.
Enforcing access to information and privacy rights: evaluating proposals for an information protection regulator for SA
(Juta, 2007) Currie, Iain; Allan, Kate
Note on current developments, the necessity for a proposed statutory regime for the protection of privacy rights.
Equality beyond dignity: multi-dimensional equality and Justice Langa’s judgments
(Juta and Co, 2015) Albertyn, Catherine; Fredman, Sandra
The tendency for South African equality jurisprudence to reduce equality to a single value, namely dignity, has been much debated, especially around the relationship of dignity to disadvantage. In this article we argue for a multidimensional idea of equality that moves beyond a dignity/disadvantage paradigm to enable a fuller exploration of the complex harms and injuries that underlie equality claims, and greater elucidation of the multiple principles and purposes of equality. In particular, we argue that substantive equality should be understood in terms of a four-dimensional framework, which aims at addressing stigma, stereotyping, prejudice and violence; redressing socio-economic disadvantage; facilitating participation; and valuing and accommodating difference through structural change. We suggest that this enables a better exploration of the different principles that underlie equality and an open discussion of complementarities and tensions between them. We explore the benefits of this approach through an evaluation of three equality cases in which Justice Langa delivered the leading judgments. Although we do not claim that he fully adopted such an approach, we engage Justice Langa’s philosophy on equality as it emerges from these judgments, and evaluate the extent to which we can develop from this a more fully-fledged understanding of equality and its underlying values in the South African Constitution.
Gendered transformation in South African jurisprudence: poor women and the Constitutional Court
(Juta and Co, 2011) Albertyn, Catherine
Central to the transformative project of the South African Constitution, although not always recognised as such, is the need to address the distinctive forms of poverty and inequality experienced by women. This article explores the extent to which, and how, poor women have been included within the constitutional project, firstly, by describing the complexity of poor women's lives and then through a brief analysis of cases and jurisprudence on equality and socio-economic rights. Underlying these two facets of the article are two key questions: What does the experience of poor women tell us about the meaning of transformation and a transformative Constitution? How can we seek a more transformative (and gendered) understanding of equality and socio-economic rights jurisprudence? The article argues that the lived realities of poor women remind us that the kind of transformation - and transformative legal strategies - that are necessary to generate meaningful change require attention to structure and agency, to redistribution and recognition, to individual and community, to public and private (especially care-giving roles in families), to inequality and poverty. To achieve this through equality and socio-economic rights jurisprudence entails greater care in the choices made by lawyers in selecting and arguing cases, and in advancing critical arguments that push the boundaries of progressive and strongly egalitarian forms of liberalism. It also requires a more gendered jurisprudence in courts where attention to women's socio-economic context is combined with a conscious attempt give meaningful content to the values informing constitutional rights, the gendered interests at stake and the manner in which the application of legal principles, such as reasonableness and fairness, can be shaped to include women. In the end transformation requires the construction of a society in which women and men are afforded equivalent, substantive conditions for exercising the choices that matter to them about how to live their lives, maintain their relationships, raise their children and pursue their aspirations.
Guidelines for the approval of surrogate motherhood agreements: Ex Parte WH
(Juta Law, 2013) Elsje, Bonthuys; Neil, Broeders
In 2011 the North and South Gauteng High Courts were approached to confirm surrogate motherhood agreements in accordance with the provisions of chapter 19 of the Children's Act 38 of 2005. The judgments were reported as In Re-Confirmation of Three Surrogate motherhood Agreements 2011 (6) SA22 (GSJ) and Ex parte 14FI2011 (6) SA514 (GNP). This note concerns the latter judgment.
Hlophe JP and the current politics of the South African Judiciary
(2009-10-05) Klaaren, Jonathan
The aims of this paper is to provide an overview of judicial politics and an understanding of these politics.
Indirect horizontal application of the right to have access to health care services
(Juta, 2007) Pieterse, Marius
Apart from their direct application against the state, the justiciability of socio-economic rights also requires the transformation of those aspects of private law that regulate relationships which are crucial for their effective enjoyment. This is acknowledged by the Constitution of the Republic of South Africa, 1996, which determines that rights may sometimes bind private parties and requires courts to develop the common law in accordance with spirit, purport and objects of the rights in the Bill of Rights.
Indirect horizontal application of the right to have access to health care services
(Juta, 2007) Pieterse, Marius
Apart from their direct application against the state, the justiciability of socio-economic rights also requires the transformation of those aspects of private law that regulate relationships which are crucial for their effective enjoyment. This is acknowledged by the Constitution of the Republic of South Africa, 1996, which determines that rights may sometimes bind private parties and requires courts to develop the common law in accordance with the spirit, purport and objects of the rights in the Bill of Rights.
Introducing the the Gauteng Scrutiny of Subordinate Legislation Act
(Juta, 2009) Klaaren, Jonathan; Sibanda, Sanele
Notes and comments on the Gauteng Scrutiny of Subordinate Legislation Act 5 of 2008.
Judicial independence and the Constitution Fourteenth Amendment Bill
(Juta, 2006) Albertyn, Catherine
Discussion of judicial independence and the Constitution Fourteenth Amendment Bill
Judicial independence and the Constitution Fourteenth Amendment Bill
(Juta, 2006) Albertyn, Catherine

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