In the King case, the South African Constitutional Court adjudicated on a gender-based disinheritance under a testamentary fideicommissum. The court, in three judgments, found that the disinheritance violated public policy and was, moreover, unconstitutional and thus invalid. King was the Constitutional Court’s first pronouncement on a gender-based disinheritance in a purely private bequest. It therefore stands in contrast to earlier High Court and Supreme Court of Appeal judgments regarding the exclusion of potential beneficiaries under testamentary charitable bequests. This contribution provides three perspectives by commentators from three jurisdictions on the Constitutional Court’s judgment in King. The first perspective argues against an objection that can be raised against a judgment such as King, namely that it constitutes an unjustified judicial violation of personal autonomy, freedom of disposition and private property in the law of gifts and trusts. The first perspective posits that discriminatory goals such as those pursued through explicit gender-exclusive disinheritances are inherently worthless and the judicial invalidation of such disinheritances therefore have a negligible impact on personal autonomy, freedom of disposition and private property. The second perspective cautions against the Constitutional Court’s express rejection of the public/private divide in the law of gifts and trusts. It argues that the divide plays an important role in striking a balance between personal autonomy, freedom of disposition and private property on the one hand, and policy as well as constitutional imperatives regarding equality and non-discrimination on the other hand. The second perspective thus advocates that the public/private divide must be retained in the law of gifts and trusts. The third perspective evaluates the King case from a German viewpoint and argues that the Constitutional Court’s reasoning in this case undervalued freedom of testation. The third perspective advances a solution that strives to balance the arguments that underpin the first and second perspectives.
{"title":"King NNO V De Jager 2021 4 SA 1 (CC): Three Perspectives","authors":"François du Toit, M. Harding, A. Humm","doi":"10.47348/slr/2022/i3a8","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a8","url":null,"abstract":"In the King case, the South African Constitutional Court adjudicated on a gender-based disinheritance under a testamentary fideicommissum. The court, in three judgments, found that the disinheritance violated public policy and was, moreover, unconstitutional and thus invalid. King was the Constitutional Court’s first pronouncement on a gender-based disinheritance in a purely private bequest. It therefore stands in contrast to earlier High Court and Supreme Court of Appeal judgments regarding the exclusion of potential beneficiaries under testamentary charitable bequests. This contribution provides three perspectives by commentators from three jurisdictions on the Constitutional Court’s judgment in King. The first perspective argues against an objection that can be raised against a judgment such as King, namely that it constitutes an unjustified judicial violation of personal autonomy, freedom of disposition and private property in the law of gifts and trusts. The first perspective posits that discriminatory goals such as those pursued through explicit gender-exclusive disinheritances are inherently worthless and the judicial invalidation of such disinheritances therefore have a negligible impact on personal autonomy, freedom of disposition and private property. The second perspective cautions against the Constitutional Court’s express rejection of the public/private divide in the law of gifts and trusts. It argues that the divide plays an important role in striking a balance between personal autonomy, freedom of disposition and private property on the one hand, and policy as well as constitutional imperatives regarding equality and non-discrimination on the other hand. The second perspective thus advocates that the public/private divide must be retained in the law of gifts and trusts. The third perspective evaluates the King case from a German viewpoint and argues that the Constitutional Court’s reasoning in this case undervalued freedom of testation. The third perspective advances a solution that strives to balance the arguments that underpin the first and second perspectives.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116173158","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.
{"title":"Transforming the Law on Psychiatric Lesions","authors":"E. Zitzke","doi":"10.47348/slr/2021/i2a4","DOIUrl":"https://doi.org/10.47348/slr/2021/i2a4","url":null,"abstract":"In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125458916","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A completely new water law dispensation, amounting to a regime change, was introduced with the National Water Act 36 of 1998. The water regulatory framework changed from one that linked access to water to land ownership and differentiated between private and public water, to a framework that applies to “all water” in South Africa and that acknowledges that “water belongs to all people”. To facilitate the notion that water belongs to all people, the legislature formally introduced the concept of public trusteeship into the country’s water law. Since the promulgation of the Act, there has been no attempt in reported case law to provide a thorough exposition of the impact of the concept of public trusteeship in the water law context. This case note explores how the High Court for the first time deliberated on the impact on the nature, form, extent and limits of use rights that can be acquired in water as a natural resource in the new regulatory regime.
{"title":"The transformed water regulatory regime of South Africa [Discussion of South African Association for Water User Associations v Minister of Water and Sanitation [2020] ZAGPPHC 252 (19 June 2020)]","authors":"Germarie Viljoen","doi":"10.47348/slr/2022/i2a8","DOIUrl":"https://doi.org/10.47348/slr/2022/i2a8","url":null,"abstract":"A completely new water law dispensation, amounting to a regime change, was introduced with the National Water Act 36 of 1998. The water regulatory framework changed from one that linked access to water to land ownership and differentiated between private and public water, to a framework that applies to “all water” in South Africa and that acknowledges that “water belongs to all people”. To facilitate the notion that water belongs to all people, the legislature formally introduced the concept of public trusteeship into the country’s water law. Since the promulgation of the Act, there has been no attempt in reported case law to provide a thorough exposition of the impact of the concept of public trusteeship in the water law context. This case note explores how the High Court for the first time deliberated on the impact on the nature, form, extent and limits of use rights that can be acquired in water as a natural resource in the new regulatory regime.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121913043","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is no doubt that the Constitution of the Republic of South Africa, 1996 is supreme. Thus, all laws and conduct should conform to it. However, the Constitution is constructed in such a manner that can lead to the questioning of its scope and therefore the extent of its supremacy. The provisions of the Constitution are crafted to focus on specific issues. This has led some to question its reach in matters that do not raise clear constitutional questions. This article is intended to provide a historical overview of the foundation of the Constitution and concomitantly to untangle its reach and scope. The analysis reveals that the scope of the Constitution extends far beyond the frontier of its provisions in the Bill of Rights. This then entails that matters of general public importance that do not raise clear constitutional questions could be decided through the application of constitutional standards.
{"title":"Deciding matters of general public importance: An analysis of the value-laden approach","authors":"Paul Nkoane","doi":"10.47348/slr/2022/i2a2","DOIUrl":"https://doi.org/10.47348/slr/2022/i2a2","url":null,"abstract":"There is no doubt that the Constitution of the Republic of South Africa, 1996 is supreme. Thus, all laws and conduct should conform to it. However, the Constitution is constructed in such a manner that can lead to the questioning of its scope and therefore the extent of its supremacy. The provisions of the Constitution are crafted to focus on specific issues. This has led some to question its reach in matters that do not raise clear constitutional questions. This article is intended to provide a historical overview of the foundation of the Constitution and concomitantly to untangle its reach and scope. The analysis reveals that the scope of the Constitution extends far beyond the frontier of its provisions in the Bill of Rights. This then entails that matters of general public importance that do not raise clear constitutional questions could be decided through the application of constitutional standards.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123171551","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The concept “homeowners’ association” falls within the description of fragmented property schemes. It is an entity that is the owner or manager of communal property and the land of an estate, consisting of individual properties owned by members of the association and communal areas used collectively by the individual owners. The individual properties and communal areas are managed in terms of conditions and rules, albeit with different purposes. A homeowners’ association is normally a juristic person incorporated as a non-profit company or by agreement between the individual owners as members to establish a common law juristic person. In terms of its management documents, it has the capacity to manage the estate and enforce the rules of the scheme. Therefore, the memorandum or constitution should contain specific management directions, which are discussed in this article. The rules of the scheme must be approved by the Ombud for Community Schemes before they may be enforced. The latter may also be approached to mediate disputes between members of the association or between members and the management. Initially the social-political need for urban fragmented property schemes is explained, followed by an analysis of the management of urban fragmented property. It is emphasised that ownership of immovable property is not only an individual right, but also fulfils an important community function. The legalities surrounding the establishment of a homeowners’ association is thereafter discussed. Essential matters to be included in the management documents are examined with specific reference to the enforceability and constitutionality of the rules of the association. Finally, the establishment of gated communities is reviewed with an emphasis on the constitutional viability of imposing limitations on the fundamental rights of owners, occupiers and third parties (like visitors and employees) who need access to the scheme or want to use communal areas in the scheme.
{"title":"Homeowners’ Associations as Urban Property Management Entities","authors":"G. Pienaar, JG Horn","doi":"10.47348/slr/2022/i3a5","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a5","url":null,"abstract":"The concept “homeowners’ association” falls within the description of fragmented property schemes. It is an entity that is the owner or manager of communal property and the land of an estate, consisting of individual properties owned by members of the association and communal areas used collectively by the individual owners. The individual properties and communal areas are managed in terms of conditions and rules, albeit with different purposes. A homeowners’ association is normally a juristic person incorporated as a non-profit company or by agreement between the individual owners as members to establish a common law juristic person. In terms of its management documents, it has the capacity to manage the estate and enforce the rules of the scheme. Therefore, the memorandum or constitution should contain specific management directions, which are discussed in this article. The rules of the scheme must be approved by the Ombud for Community Schemes before they may be enforced. The latter may also be approached to mediate disputes between members of the association or between members and the management. Initially the social-political need for urban fragmented property schemes is explained, followed by an analysis of the management of urban fragmented property. It is emphasised that ownership of immovable property is not only an individual right, but also fulfils an important community function. The legalities surrounding the establishment of a homeowners’ association is thereafter discussed. Essential matters to be included in the management documents are examined with specific reference to the enforceability and constitutionality of the rules of the association. Finally, the establishment of gated communities is reviewed with an emphasis on the constitutional viability of imposing limitations on the fundamental rights of owners, occupiers and third parties (like visitors and employees) who need access to the scheme or want to use communal areas in the scheme.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116278743","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Broad-Based Black Economic Empowerment is critical in establishing an inclusive South African economy based on social and economic justice. However, since its inception in 2003 with the promulgation of the Broad-Based Black Economic Empowerment Act 53 of 2003, misrepresentations intended to improve an enterprise’s compliance status – fronting – have been ever-present. From 2003 to 2013, there was no clear approach to dealing with fronting, which, at least in part, led to increases in the incidence and complexity of this practice. In an attempt to deal more decisively with the issue, the 2013 amendment to the Broad-Based Black Economic Empowerment Act introduced two specific measures to combat this problem. The first was criminalising fronting practices, and the second was establishing a monitoring body, the Broad-Based Black Economic Empowerment Commission. This article briefly sketches the policy and legislative framework for implementing the Broad-Based Black Economic initiative and past practices of combatting fronting practices. This is followed by a discussion of the two measures introduced by the amendment to the Act, with a specific focus on the Commission’s role since its inception to monitor and combat fronting practices. There will also be a discussion of the various activities that the Commission reports on concerning its dealing with fronting. The article concludes with suggestions for changes to the regulatory environment that could improve the efficacy of the fight against fronting.
基础广泛的黑人经济赋权对于建立一个以社会和经济正义为基础的包容性南非经济至关重要。然而，自2003年《广泛的黑人经济赋权法案》颁布以来，旨在改善企业合规状况的虚假陈述(即“正面”)一直存在。从2003年到2013年，没有明确的方法来处理这种做法，这至少在一定程度上导致了这种做法的发生率和复杂性的增加。为了更果断地解决这一问题，2013年《基础广泛的黑人经济赋权法案》(Broad-Based Black Economic Empowerment Act)的修正案引入了两项具体措施来解决这一问题。第一个是将幌子行为定为犯罪，第二个是建立一个监测机构，即基础广泛的黑人经济赋权委员会。本文简要概述了实施“基础广泛的黑人经济倡议”的政策和立法框架以及过去打击对抗做法的做法。随后讨论了该法案修正案所提出的两项措施，特别侧重于委员会自成立以来在监测和打击对抗做法方面的作用。会议还将讨论委员会所报告的与应付前线问题有关的各种活动。文章最后提出了改变监管环境的建议，以提高打击假冒伪劣产品的效率。
{"title":"The Legal Combatting of B-BBEE Fronting Practices in South Africa – Past and Present","authors":"Adri Du Plessis","doi":"10.47348/slr/2022/i3a3","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a3","url":null,"abstract":"Broad-Based Black Economic Empowerment is critical in establishing an inclusive South African economy based on social and economic justice. However, since its inception in 2003 with the promulgation of the Broad-Based Black Economic Empowerment Act 53 of 2003, misrepresentations intended to improve an enterprise’s compliance status – fronting – have been ever-present. From 2003 to 2013, there was no clear approach to dealing with fronting, which, at least in part, led to increases in the incidence and complexity of this practice. In an attempt to deal more decisively with the issue, the 2013 amendment to the Broad-Based Black Economic Empowerment Act introduced two specific measures to combat this problem. The first was criminalising fronting practices, and the second was establishing a monitoring body, the Broad-Based Black Economic Empowerment Commission. This article briefly sketches the policy and legislative framework for implementing the Broad-Based Black Economic initiative and past practices of combatting fronting practices. This is followed by a discussion of the two measures introduced by the amendment to the Act, with a specific focus on the Commission’s role since its inception to monitor and combat fronting practices. There will also be a discussion of the various activities that the Commission reports on concerning its dealing with fronting. The article concludes with suggestions for changes to the regulatory environment that could improve the efficacy of the fight against fronting.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116066241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 20 March 2020 the President of South Africa, Cyril Ramaphosa, announced a national lockdown as an interim response by the South African Government to the COVID-19 pandemic. This followed a declaration of a state of national disaster by the Minister for Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma. As part of the 21-day national lockdown, the Minister issued regulations aimed at stemming the rise in infections across the country. Part of the restrictions imposed by the regulations was to limit free movement which included regulating crossprovincial travel without a permit. In CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020), the High Court of South Africa was confronted with an application in which the parents of two minors requested permission to travel across provinces to fetch their minor children and return them to their place of residence. The issue before the court was whether the regulations permitted the movement of children between parents and their caregiver.
{"title":"The best interests of the child in the face of COVID-19 travel restrictions: Analysing the rights of children and parents [Discussion of CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020)]","authors":"Angelo Dube","doi":"10.47348/slr/2022/i2a10","DOIUrl":"https://doi.org/10.47348/slr/2022/i2a10","url":null,"abstract":"On 20 March 2020 the President of South Africa, Cyril Ramaphosa, announced a national lockdown as an interim response by the South African Government to the COVID-19 pandemic. This followed a declaration of a state of national disaster by the Minister for Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma. As part of the 21-day national lockdown, the Minister issued regulations aimed at stemming the rise in infections across the country. Part of the restrictions imposed by the regulations was to limit free movement which included regulating crossprovincial travel without a permit. In CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020), the High Court of South Africa was confronted with an application in which the parents of two minors requested permission to travel across provinces to fetch their minor children and return them to their place of residence. The issue before the court was whether the regulations permitted the movement of children between parents and their caregiver.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115376467","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article considers “the right to deletion” enacted under the Protection of Personal Information Act 4 of 2013 and uses the right as a lens through which to contemplate (1) memory, identity, and forgetting in the digital age; (2) the erosion of the privacies of life and the notion of “home” in the context of ubiquitous technologies; and (3) a new form of instrumentarian power created by surveillance capitalist regimes that aims to make individuals into known and knowable entities for economic ends as well as the implications of this form of power for the values of dignity, democracy and privacy. It is suggested that the reclaiming of forgetting is necessary for human growth and agency and that the reclaiming of “home” is required as a shelter for the privacies of life, intimacy, and freedom. The argument is also made that the right to deletion should be understood within the context of the increasing loss of privacy within societies under techno-capitalist control.
{"title":"The Right to Deletion: Identity, Memory, and Surveillance Capitalism","authors":"Y. Jooste","doi":"10.47348/slr/2022/i3a6","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a6","url":null,"abstract":"This article considers “the right to deletion” enacted under the Protection of Personal Information Act 4 of 2013 and uses the right as a lens through which to contemplate (1) memory, identity, and forgetting in the digital age; (2) the erosion of the privacies of life and the notion of “home” in the context of ubiquitous technologies; and (3) a new form of instrumentarian power created by surveillance capitalist regimes that aims to make individuals into known and knowable entities for economic ends as well as the implications of this form of power for the values of dignity, democracy and privacy. It is suggested that the reclaiming of forgetting is necessary for human growth and agency and that the reclaiming of “home” is required as a shelter for the privacies of life, intimacy, and freedom. The argument is also made that the right to deletion should be understood within the context of the increasing loss of privacy within societies under techno-capitalist control.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"106 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117118041","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Bound by the 2013 Constitution of Zimbabwe (“Zimbabwean Constitution”), as informed by regional human rights law, Zimbabwean police should facilitate access to justice for everyone. This article interrogates the lived realities of diverse women in terms of how the police in Zimbabwe respond when they report cases of sexual and gender-based violence (“SGBV”). Using qualitative data this article also interrogates institutional practices questioning the alignment of laws and actions to the Zimbabwean Constitution. The findings show that the reluctance of the police to efficiently and appropriately engage with SGBV cases reported by diverse women is encouraged by the homophobic context in which these take place. The ability of the police to provide justice to diverse women who experience SGBV can be strengthened by repealing the laws that criminalise same-sex relations and sodomy and by implementing regional human rights law as interpreted through Resolution 275 of the African Commission on Human and People’s Rights.
{"title":"Role of the police in access to justice for sexual and gender-based violence perpetrated against diverse women in Zimbabwe","authors":"Munatsi Shoko, K. Vermaak, Annika Rudman","doi":"10.47348/slr/2022/i1a6","DOIUrl":"https://doi.org/10.47348/slr/2022/i1a6","url":null,"abstract":"Bound by the 2013 Constitution of Zimbabwe (“Zimbabwean Constitution”), as informed by regional human rights law, Zimbabwean police should facilitate access to justice for everyone. This article interrogates the lived realities of diverse women in terms of how the police in Zimbabwe respond when they report cases of sexual and gender-based violence (“SGBV”). Using qualitative data this article also interrogates institutional practices questioning the alignment of laws and actions to the Zimbabwean Constitution. The findings show that the reluctance of the police to efficiently and appropriately engage with SGBV cases reported by diverse women is encouraged by the homophobic context in which these take place. The ability of the police to provide justice to diverse women who experience SGBV can be strengthened by repealing the laws that criminalise same-sex relations and sodomy and by implementing regional human rights law as interpreted through Resolution 275 of the African Commission on Human and People’s Rights.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125059225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Local government’s autonomy in post-apartheid South Africa is constitutionally guaranteed. A reading of the Constitution of the Republic of South Africa, 1996 shows that local government, made up of 257 municipalities, has a wide range of powers and functions. However, confusion over the scope of constitutional distribution of powers and functions vis-à-vis other spheres of government often constrains the ability of municipalities to take action over a function not expressly assigned to local government in Schedules 4B and 5B of the Constitution. The squabbles between the City of Tshwane and the Gauteng Health Department over the power to provide ambulance services in March 2021 show how some municipalities may be hamstrung from taking action that seeks to operationalise and deliver a function that is not expressly conferred on local government in terms of Schedules 4 and 5 of the Constitution. This article discusses why and how municipalities with the requisite capacity should be able to provide ambulance services, although this is listed in Schedule 5A of the Constitution as a functional area of exclusive provincial legislative competence. I argue that three features in the Constitution give the power to provide ambulance services to municipalities that have the requisite capacity: the framing of health rights and concomitant obligations; the incidental powers of municipalities; and the principle of allocative subsidiarity. It is argued that, given the mandatory wording of the principle of allocative subsidiarity in sections 156(4) of the Constitution and 32(2) of the National Health Act 61 of 2003, where a provincial health department is averse to assigning the provision of ambulance services to a municipality that has the requisite capacity, such a municipality can approach the High Court for an order compelling the department to assign this function.
{"title":"Local Government and the Conundrum of Constitutional Competencies in South Africa: The Tussle Between City of Tshwane Municipality and the Gauteng Health Department Over Ambulance Services","authors":"Oliver Fuo","doi":"10.47348/slr/2022/i3a7","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a7","url":null,"abstract":"Local government’s autonomy in post-apartheid South Africa is constitutionally guaranteed. A reading of the Constitution of the Republic of South Africa, 1996 shows that local government, made up of 257 municipalities, has a wide range of powers and functions. However, confusion over the scope of constitutional distribution of powers and functions vis-à-vis other spheres of government often constrains the ability of municipalities to take action over a function not expressly assigned to local government in Schedules 4B and 5B of the Constitution. The squabbles between the City of Tshwane and the Gauteng Health Department over the power to provide ambulance services in March 2021 show how some municipalities may be hamstrung from taking action that seeks to operationalise and deliver a function that is not expressly conferred on local government in terms of Schedules 4 and 5 of the Constitution. This article discusses why and how municipalities with the requisite capacity should be able to provide ambulance services, although this is listed in Schedule 5A of the Constitution as a functional area of exclusive provincial legislative competence. I argue that three features in the Constitution give the power to provide ambulance services to municipalities that have the requisite capacity: the framing of health rights and concomitant obligations; the incidental powers of municipalities; and the principle of allocative subsidiarity. It is argued that, given the mandatory wording of the principle of allocative subsidiarity in sections 156(4) of the Constitution and 32(2) of the National Health Act 61 of 2003, where a provincial health department is averse to assigning the provision of ambulance services to a municipality that has the requisite capacity, such a municipality can approach the High Court for an order compelling the department to assign this function.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124367675","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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