CONSTITUTIONAL COURT REVIEW
VOLUME 2 • CONFERENCE PAPERS
CONFERENCE SCHEDULE
DRAFT PAPERS
- A new approach to remedies in socio-economic rights adjudication: Occupiers
of 51 Olivia Road and Others v City of Johannesburg and Others
Lilian Chenwi
Abstract
This case note examines the case of Occupiers of 51 Olivia Road and Others v City of Johannesburg and Others in the context of existing constitutional jurisprudence and its contribution to the development of effective remedies for socio-economic rights violations and to promoting the transformative promise of the South African Constitution as well as democracy. It is argued that the meaningful engagement remedy is a progressive and effective remedy that is capable of promoting social transformation and enhances participatory democracy. However, the transformative potential of Olivia is limited by the Constitutional Court’s avoidance - which I characterise as sheer unwillingness as opposed to judicious avoidance or minimalism - to deal with some key issues that the parties could not agree on.
- The decisions in Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009 (1) SA 337 (CC): Be wary of these holdings
Nico Steytler
Abstract
At the centre of the private dispute in Wary v Stalwo lies a contested vision of the new local government dispensation. Wary, the seller of a portion of farm, can escape from an unprofitable sale if the national Minister responsible for agriculture is still in charge of the subdivision of agricultural land and not the municipality. If the buyer can hold the reluctant seller to the sale, the powers of local government would have significantly increased at the expense of the Minister. The case is not only important for the development of South Africa’s decentralised system of government, but also for the way in which the Constitutional Court approaches statutory interpretation. The split Constitutional Court decision not only reflects different visions of local government but also how to resolve division of powers questions through statutory interpretation.
- Distinction Without Difference: The Constitutional Protection Of Customary Law And Cultural Linguistic And Religious Communities- A Comment On Shilubana & Others V Nwamitwa
Enyinna Nwauche
Abstract
Even though the decision of the South African Constitutional Court in Shilubana & Others v Nwamitwais commendable because `it promotes gender equality in the succession of traditional leadership, in accordance with the Constitution´ this comment is primarily concerned with the how this case recognizes communal norms ordered by a cultural community through its customary law. This case therefore draws attention to the constitutional recognition of customary law and the protection offered members of cultural linguistic and religious communities. I argue that the exclusive association of customary law with the `Black´ community is not justifiable as other biologically distinct communities such as the `White` and `Colored´ communities are also entitled to a recognition of their customary law. It also appears that because of the association of customary law with the black community the group rights of other cultural linguistic and religious communities are imagined and protected in terms of FC 30 & 31. More importantly a reading of relevant cases before Shilubana does not indicate any significant difference in the constitutional recognition of customary law and protection offered by FC 30 &31 and that both streams of interpretations are not only inadequate but insensitive to the rights of all cultural linguistic and religious communities.
- The flight from rights: Rule aversion in dealing with the criminal process
Molimi, Zuma, Thint (Holdings), Shaik and Zealand
[ REVISED VERSION ]
Frank Snyckers
Abstract
In an adversarial criminal justice system, rules tend to favour the accused. Rules, when applied strictly, create rights. The fewer the rules, the more likely the conviction. The longer the view taken by a justice system, the more generous the system to those at its barrel-end. Due process intrudes upon the immediate desire to punish with an appeal to the perennial need to be humane. It arrives at the critical moment, embodying the conscience of society, to spoil the quenching of the bloodlust at the hanging party. Woe betide the accused whose case is considered with regard only to its own facts, to the crime he stands accused of committing, and to the need to do something about it. More often than not, his salvation will lie in the extent to which he is able to invoke rules, rights and principles that were created for the benefit of others, for other situations than his, and for the long-term benefit of society. He will want the judge to apply an ancient rule uncritically, instead of asking whether, in the case at hand, society’s interests in fighting crime outweigh the merits of whatever complaint he has raised about the way the trial is being conducted. Such balancing exercises will tend, in the nature of things, to end badly for him.
- Marking the path of the law
[ REVISED VERSION ]
Stephen Ellmann
Abstract
In 15 years, South Africa’s Constitutional Court – and the judges of the Supreme Court of Appeal and the High Courts – have traversed most of the history of US constitutional law, a history that took us two centuries to compile, and have marked out new ground of their own. The death penalty; free speech; foreign relations; administrative justice; equal rights under law for blacks and whites, gays and straights, men and women; rights of public participation in legislative processes; and socioeconomic rights – to an American observer it is a remarkable list, and to an American liberal observer, not much short of miraculous. We meet today at an important moment in this already illustrious constitutional tradition. Four distinguished justices are about to leave the Constitutional Court, and the President who will appoint their replacements came to office amidst controversy and litigation that certainly raised concerns about the future position of the judiciary. It seems right for us to use this moment to consider what it is that South Africans (and Americans) should seek and value in constitutional judges, and how we, as law professors, can contribute to finding what we seek.
- Vampire or Prince?
The Listening Constitution and Merafong Demarcation Forum & Others v President of the Republic of South Africa & Others
Michael Bishop
Abstract
The interesting thing about Merafong is that there are two ways to read it. It can be read as sucking the lifeblood out of the duty to facilitate public involvement and the ideal of public deliberation till all that is left of either is a hollow shell. Alternatively, we can read Merafong as giving dormant citizenship the kiss of life by focusing attention on alternative forms of participation. Neither reading is entirely satisfactory, and which you prefer will probably depend on your prior commitments about the place of participatory democracy and deliberation in a primarily representative government. However, I hope my musings on Merafong will achieve three things. First, I want to connect participation and deliberation as committed to the same ideal: listening. Second, I intend to show that the seemingly disparate elements of Merafong can be understood as speaking to that ideal. Last, I hope to expand and enrich our conception of participation and deliberation by unveiling some of the many moving parts that make it work, or fail.
- Principled Calm Amidst A Shameless Storm : Testing The Limits Of The Judicial Regulation Of Legislative And Executive Power
Hugh Corder
Abstract
This article broadly seeks to analyse some of the judgments handed down in 2008 which directly or indirectly impact on the relationships between the judiciary on the one hand and the legislature and executive on the other. The organising theme is the doctrine of the separation of powers, as required by Constitutional Principle VI of the transitional Constitution of 1993, compliance with which in the final Constitution was certified by the Constitutional Court (CC) in the Certification judgments of 1996, and as endorsed in the Western Cape Exec case and frequently since then. I seek through close reading of the cases to determine the extent to which the judgments impact on the health of the doctrine in South African constitutional law, in the sense of mutual respect by each branch of government for each other’s lawful domain of authority under the Constitution. Ultimately, prospects for substantial compliance with the rule of law will be directly affected by the current health and future viability of the doctrine.
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Equality (and Culture)
Cathi Albertyn
Abstract
The Constitutional Court handed down four equality related judgments in 2008, one on section 9(1) and three on issues broadly relating to culture. MEC for Education, Kwazulu Natal v Pillay was the first time that the Court had considered the application of equality legislation, the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000, (the Equality Act) as well as the issue of discrimination on the basis of culture. Gumede v President of the RSA and Shilubana v Nwamitwa both concerned aspects of gender equality within customary law and practice, and thus raise interesting questions about how to negotiate the relationship between equality and culture in situations of ‘intra-group’ (gender) discrimination.
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