ItemA 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, ElsjePart 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. ItemA 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, ElsjeThe 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. ItemDeveloping the Common Law of Breach of Promise and Universal Partnerships: Rights to Property Sharing for All Cohabitants(Juta Law, 2015) Bonthuys, ElsjeThe 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'. ItemThe Rule That a Spouse Cannot Forfeit at Divorce What He Or She Has Contributed to the Marriage: An Argument for Chance(Juta Law, 2014) Bonthuys, ElsjeUnlike other systems of family law, South African law allows parties to choose their matrimonial property system by way of antenuptial contract. Although the financial consequences of the dissolution of marriage follow broadly from the chosen matrimonial property system, certain statutory and common-law mechanisms allow for a variation from the rigours of the applicable property regime. This article concerns one of these mechanisms, namely forfeiture of benefits in terms of s 9 of the Divorce Act 70 of 1979. ItemGuidelines for the Approval of Surrogate Motherhood Agreements:Ex Parte WH(Juta Law, 2013) Elsje, Bonthuys; Neil, BroedersIn 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. ItemThe South African Bill of Rights and the Development of Family Law(Juta Law, 2002) Bonthuys, ElsjeFamily law is probably the area of South African private law which has expanded and changed most rapidly in the past nine years. Many of these changes have come about as a result of the enactment of a Bill of Rights in both the interim and the final Constitution. 1 On the one hand, this is not surprising, since family law contains many legal rules which are overtly discriminatory on the bases of sex, gender, culture, religion and sexual orientation. On the other hand, legal rules in this area represent a codification of moral and social norms in the quotidian and 'private' lives of many people, which are often resistant to scrutiny and change. ItemCultural Diversity, 'Living Law' and Women's Rights in South Africa(Cambridge University Press, 2013) Albertyn, CatherineThis chapter considers the constitutional recognition of cultural diversity, especially as it is manifest through the recognition of customary law, and its relationship to the constitutional guarantee of gender equality. As the supreme law, the South African Constitution subjects all law (customary, common, and statutory) to the rights and values of the Constitution, including the primary democratic values of dignity, equality, and freedom. This chapter rejects the idea that the Constitution provides a “liberal democratic” framework that constitutes the basis for a “top-down” universalism that tests culture and custom against irretrievably external, liberal standards. Although the Constitution is capable of this, among other, interpretations, the chapter argues that the best – and most transformative – interpretation of the constitutional text is one that enables a deep respect for cultural identity and diversity and consequent recognition of positive cultural norms and practices, while also addressing cross-cutting, intragroup inequalities, such as gender. This interpretation recognizes that transformation under the South African Constitution requires courts to address multiple and intersecting inequalities, and that culture and custom – long ossified in official law – face particular challenges in adapting to contemporary political, economic, and social conditions. Although democratic and cultural values might be rooted in different contexts, South Africa’s history of colonialism, apartheid, and political struggles, as well as its socioeconomic development, mean that there is considerable common ground within and across communities for harmonizing customary law and the Constitution. ItemEquality beyond Dignity: Multi-dimensional equality and Justice Langa’s judgments(Juta and Co, 2015) Albertyn, Catherine; Fredman, Sandra ItemAdjudicating Affirmative Action Within a Normative Framework of Substantive Equality and The Employment Equity Act – An Opportunity Missed?(Juta and Co, 2015) Albertyn, CatherineThe 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. ItemGendered Transformation in South African Jurisprudence: Poor Women and the Constitutional Court(Juta and Co, 2011) Albertyn, CatherineCentral 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. ItemSubstantive Equality and Transformation in South Africa(Juta and Co, 2007) Albertyn, CatherineThis article considers whether ‘substantive equality’, as a transformative idea and legal mechanism in the South African Constitution, can generate legal solutions and court decisions that may result in transformative change. It does so by establishing a framework for analysing the ‘inclusionary’ or ‘transformatory’ effects of equality cases in relation to gender and sexual orientation. It argues that the idea of substantive equality is capable of addressing diverse forms of social and economic inequality, and that the legal form of substantive equality adopted by the Constitutional Court, emphasising context, impact, difference and values,has some potential for achieving meaningful social and economic change by and through courts. However, the manner is which the Court has engaged with this legal form suggests that the transformative possibilities of equality are constrained by a number of factors. These include institutional concerns, the capacity and willingness of judges to recognise and address the multiple systemic inequalities that still pervade our society as well as their ability to develop a consistently transformative jurisprudence that applies the ideas of substantive equality to the concepts and doctrines that underpin many equality claims. ItemLegal Realism, Transformation and the Legacy of Dugard(Juta and Co, 2010) Albertyn, Catherine; Davis, DennisJohn Dugard’s courageous inaugural lecture drew on American realism, modern natural law and South Africa’s liberal tradition to argue that judges might better serve the ends of justice if they recognised their creative role, and replaced their subconscious prejudices and preferences with liberal values of the common law. This turn to legal realism to understand South Africa law was a significant intellectual development. However, its implications remain undeveloped within the theory and practice of law in South Africa. (Critical )legal realism raises significant questions about the nature of law and its role in sustaining public and private power. The lessons of legal realism in relation to the dominant legal method (formalism) and the nature of private law were not really taken up by lawyers and legal academics under apartheid. This meant that South African lawyers were ill-prepared for the challenges of transformation in the legal system, especially in relation to legal method, the form and content of private law and the development of law under ss 8 and 39(2) of the Constitution. Moreover, while progressive lawyers have always recognised the political nature of law – especially under apartheid – this has not always translated into a deeper understanding of how the form and content of our democratic Constitution is contested, and how law and politics seep into one another. ItemCartoon 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. ItemConstitutional Authority to enforce the rights of Administrative Justice and access to Information(Juta, 1997) Klaaren, JonathanAnalysis of the constitutionality of two sections of the Bill of Rights. ItemOpen justice and beyond: Independent Newspapers v Minister for Intelligence Services: In re Masetlha(Juta, 2009) Klaaren, JonathanNotes on a constitutional court decision within the context of national security and openness. ItemPublic interest litigation in South Africa: special issue introduction(Juta, 2011) Klaaren, Jonathan; Dugard, Jackie; Handmaker, JeffPublic interest litigation in South Africa. Addresses a diverse range of topics which all fall within a broad definition of public interest litigation in South Africa: refugee rights, environmental rights, inner city as well as informal settlement housing rights, rights to basic services, decent prison conditions and the transnational arena of investor-state arbitrations.