South African Journal on Human Rights最新文献

{"title":"Constitutional morality in South Africa: Is it the missing link?","authors":"Hoolo ‘Nyane","doi":"10.1080/02587203.2024.2318495","DOIUrl":"https://doi.org/10.1080/02587203.2024.2318495","url":null,"abstract":"The Constitution of South Africa is lauded worldwide for its progressiveness. This paean status notwithstanding, there is an increasing sense that the Constitution’s transformative ideals are gradu...","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140016730","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Human dignity and the human personality: Developing an ideological basis for the constitutionalisation of the common law of personality","authors":"C. J. Visser","doi":"10.1080/02587203.2023.2280639","DOIUrl":"https://doi.org/10.1080/02587203.2023.2280639","url":null,"abstract":"This article examines the multi-faceted nature of human dignity as a constitutional value, together with its interplay with other constitutional values, to provide an ideological basis for the cons...","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138532312","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Involving South Africa’s Human Rights Commission in environmental protection: South African Human Rights Commission v Msunduzi Local Municipality","authors":"Meeschka Diedericks, Felix Dube, Anél du Plessis","doi":"10.1080/02587203.2023.2277288","DOIUrl":"https://doi.org/10.1080/02587203.2023.2277288","url":null,"abstract":"Section 24 of the Constitution of the Republic of South Africa, 1996, provides that everyone has a right to an environment that is not harmful to their health or well-being. However, the protection...","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138532252","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"<i>South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku:</i> The rejection of the International Holocaust Remembrance Alliance definition","authors":"Jeremy Phillips","doi":"10.1080/02587203.2023.2275311","DOIUrl":"https://doi.org/10.1080/02587203.2023.2275311","url":null,"abstract":"AbstractThe International Holocaust Remembrance Alliance definition of antisemitism is routinely invoked to silence legitimate criticism of the State of Israel. According to the definition, comparisons of Israel to apartheid South Africa are antisemitic. Authoritative and compelling research and reports, which conclude that Israel is an apartheid state, are thus regularly disregarded as antisemitic hate speech. This has severely restricted principled pro-Palestine activism and a just resolution of the conflict. But, in South Africa, for no longer. In the 2022 case of SAHRC v Masuku, the South African Constitutional Court, the country’s apex court, considered whether comments accusing Israel of discriminatory apartheid practices constitute antisemitic hate speech. The Constitutional Court held that it does not. This essay discusses the judgment and its implications on the constitutional validity and political relevance of the Alliance definition.Keywords: IsraelZionismantisemitismanti-ZionismInternational Holocaust Remembrance Alliance Disclosure statementNo conflict of interest was declared by the author.Notes1 M Sfard ‘The Israeli occupation of the West Bank and the crime of apartheid: Legal opinion by Adv. Michael Sfard’ (June 2020) Yesh Din Position Paper 57.2 Briefly, the main arguments advanced as to why Israel constitutes an ‘apartheid state’ is that its existence as a ‘Jewish homeland’, with preferential policies and practices towards Jewish citizens and the Jewish diaspora, is that the consequence thereof is that Palestinian land is expropriated and Palestinians are displaced on a mass scale as a result, Palestinians are unlawfully killed, and Palestinians’ civil liberties are severely curtailed. For more detailed discussion, see Sfard (note 1 above).3 Human Rights Watch ‘A threshold crossed: Israeli authorities and the crimes of apartheid and persecution’ (2021).4 Amnesty International ‘Israel’s apartheid against Palestinians: Cruel system of domination and crime against humanity’(2022).5 See U Ram ‘Critical studies of ethnic nationalism in Israel’ (2007) 2 Middle East Studies Association Bulletin 164.6 R Greenstein ‘Colonialism, apartheid and the native question: The case of Israel/Palestine’ in V Satgar (ed) Racism After Apartheid: Challenges for Marxism and Anti-Racism (2019) 75.7 D Gakunzi ‘Anti-Zionism and anti-semitism – African style’ (2017) 3/4 Jewish Political Studies Review 46; J Judaken ‘So what's new? Rethinking the “new antisemitism” in a global age’ (2008) 4/5 Patterns of Prejudice 531, 555; L Topor ‘The covert war: From BDS to de-legitimization to antisemitism’ (2021) 1 Israel Affairs 168, 175–176. Also see, for example: Anti-Defamation League ‘Allegation: Israel is an apartheid state’ (7 August 2021); K Mokgomole ‘I’m South Africa: Calling Israel “apartheid” puts the BS in BDS’ (28 April 2022) Jewish Report; D Horovitz ‘Amnesty’s “apartheid Israel” calumny’ (3 February 2022) The Times of Israel; S Linde ‘No comparison bet","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135480291","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Is the automatic loss of South African citizenship for those acquiring other citizenships constitutional? Democratic Alliance v Minister of Home Affairs","authors":"David Bilchitz, R. Ziegler","doi":"10.1080/02587203.2022.2158925","DOIUrl":"https://doi.org/10.1080/02587203.2022.2158925","url":null,"abstract":"For an increasing number of people, global mobility is a feature of their lives. Employment opportunities may arise in countries far removed from one’s place of birth; one may meet a significant other and seek to re-locate. For some, new citizenships may be acquired for instrumental reasons: ease of movement, as Covid-19 national restrictions have demonstrated, often requires not only applying for permission to reside indefinitely in another country but also naturalisation; for others, it may reflect a deeper significance, representing a stronger connection to a polity to which one wishes to belong and to participate politically. What acquisition of a new citizenship does not ipso facto mean is that an individual wishes to lose the citizenship of their country of origin, to which they may retain intense and deep ties. The legal consequences of the acquisition of foreign citizenship were the subject of Democratic Alliance v Minister of Home Affairs, a 2021 case in the High Court of South Africa (Gauteng division, Pretoria). The Democratic Alliance unsuccessfully challenged the constitutionality of s 6 of the Citizenship Act 68 of 1995. This provision stipulates that adult citizens automatically (de lege) lose their South African citizenship when they ‘freely and voluntarily’ acquire another citizenship (except through marriage) without first applying for and obtaining a ministerial certificate authorising its retention. The applicants argued this policy is irrational and that it violates several","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45838168","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cognitive liberty and the constitutionality of criminalising psilocybin mushrooms in South Africa","authors":"Sebastian William Foster","doi":"10.1080/02587203.2023.2202875","DOIUrl":"https://doi.org/10.1080/02587203.2023.2202875","url":null,"abstract":"Abstract The principle of cognitive liberty is assessed as a ground for challenging the constitutionality of the criminalisation of psilocybin mushrooms. To do so, s 12 of the Constitution of the Republic of South Africa, 1996, is analysed, determining that s 12(2) is not a numerus clausa and is capable of enforcing further protections and/or entitlements, such as cognitive liberty. Further, it is suggested that the interpretation of s 12(2)(b) offers protection to both body and mind, and as such, also protecting the cognitive liberty right. Having established that the Constitution protects the right afforded by the principle cognitive liberty, it is deduced that the current criminalisation of psilocybin mushrooms – a means through which an individual may exercise their cognitive liberty rights – in terms of the Drugs and Drug Trafficking Act and Medicines and Related Substances Act, conflict with the rights established in s 12 of the Constitution. A s 36 limitation of rights analysis is presented, detailing that the criminalisation of psilocybin mushrooms is not justifiable when the nature and importance of the limited right are weighed against the importance and purpose of the criminalisation. As such, this article concludes that the current criminalising legislation is not justifiable.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43053338","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Poverty discrimination under the Promotion of Equality and Prevention of Unfair Discrimination Act: A transformative substantive equality approach","authors":"Gideon Basson","doi":"10.1080/02587203.2023.2214373","DOIUrl":"https://doi.org/10.1080/02587203.2023.2214373","url":null,"abstract":"Abstract This article considers the implications of a transformative substantive equality interpretation of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) for the interpretation stage of a claim of poverty-based discrimination. It draws from the work of the critical social and global justice theorist, Nancy Fraser, to briefly develop and extend existing transformative accounts of substantive equality that are faithful to the constitutional text and its legislative expression in the Equality Act. The article shows that the Equality Act could be interpreted to capture poverty discrimination that manifests along three intersecting axes, namely ‘misrepresentation’, ‘maldistribution’, and ‘misrecognition’. These axes highlight the political marginalisation, material disadvantage and pervasive prejudices, violence and stigma that characterise the disadvantages of poverty. The article then proposes three inquiries of an unfair discrimination analysis under the Equality Act that provide adjudicators with a critical legal framework to interpret the various stages in line with a transformative substantive equality approach.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45152560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Freedom of religion and places of worship during Covid-19","authors":"Waheeda Amien","doi":"10.1080/02587203.2022.2156919","DOIUrl":"https://doi.org/10.1080/02587203.2022.2156919","url":null,"abstract":"Abstract With reference to places of worship, this article considers the justifiable extent to which freedom of religion may be limited within the context of a global pandemic. While the article focuses on the 2020 South African case of Muhammed Bin Hassam Mohamed v The President of the Republic of South Africa, it also draws on five USA cases for comparative purposes. The article demonstrates that the judiciary in both jurisdictions relied on the jurisprudence of their domestic freedom of religion clauses to determine the outcome of their cases. During the earlier stages of the Covid-19 pandemic, it appears that the South African and USA judiciaries were inclined to sacrifice freedom of religion in the interests of the greater good. However, this was achieved at the cost of applying their jurisprudence on freedom of religion incorrectly. By doing so, they unjustifiably treated religious activities more harshly than secular activities. The later three US cases illustrate that, even during a global pandemic that has killed millions of people worldwide, the judiciary remains under an obligation to ensure that freedom of religion is protected, especially when less restrictive means are available to do so.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45930292","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ending Childhood Obesity: A Challenge at the Crossroads of International Economic and Human Rights Law","authors":"S. Lutchman, S. Lutchman","doi":"10.1080/02587203.2023.2173721","DOIUrl":"https://doi.org/10.1080/02587203.2023.2173721","url":null,"abstract":"This book is an important read for anyone interested in child rights and child health. It will prove useful for researchers and litigators alike. It explains in detail how childhood obesity cannot be classified simply as the result of poor eating habits – obesity stems from harmful commercial practices that leave children and their families with few alternatives. Importantly, the book illustrates how the tools of international human rights law can be used to end childhood obesity. The book stems from the work of the Law and Non-Communicable Diseases (NCD) Research Unit and its global partners at the University of Liverpool. The editors – Amandine Garde, Joshua Curtis (both at the University of Liverpool) and Olivier De Schutter (Catholic University of Louvain) – are experts in global health law, international economic law and international human rights law respectively. Notably, Schutter was the United Nations Special Rapporteur on the Right to Food and is the current Special Rapporteur on Extreme Poverty and Human Rights. The book follows the United Nations High Level meeting on NCDs in 2017 (WHO Montevideo Road Map 2018–2030 on NCDs as a Sustainable Development Priority) and the commitment made to take action to reduce by a third premature mortality caused by NCDs. Other relevant soft law instruments (such as the World Health Organisation (WHO) Global Action Plan for the Prevention and Control of Non-communicable Diseases 2013–2030) urge States to provide more information to consumers to enable healthy food choices and calls for measures to address the food environment to ensure the availability, accessibility and affordability of healthier food. Ending Childhood Obesity is an important contribution on the intersecting relationships between children’s rights, international economic law and global health law. One does not need to have expertise in all (or any) of these areas to understand the general premise of the arguments made. The book is easy to read and is written for a non-scientific audience. While the researchers are based in the Global North and write from such perspective, the book resonates with the complexities and challenges posed by childhood obesity in the Global South. Indeed, childhood obesity is on the rise in developing states, existing uncomfortably alongside childhood undernutrition. In this way, childhood obesity creates a double malnutrition burden on developing countries. South Africa is no exception. A recent report indicates that stunting (an indication of chronic undernutrition) is ‘exceptionally high’ in South Africa, while childhood obesity is causing a national increase in NCDs. The statistics are stark – one in four children under the age of five in South Africa are stunted, and","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45230082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Advancing early childhood development: The role of local government","authors":"Tess N. Peacock","doi":"10.1080/02587203.2023.2221451","DOIUrl":"https://doi.org/10.1080/02587203.2023.2221451","url":null,"abstract":"Abstract This article details various interpretations of local governments’ responsibilities relating to their ‘child care facilities’ function in the Constitution of the Republic of South Africa, 1996. It concludes that municipalities have historically had the primary function of ensuring a healthy and safe physical environment for young children, and this function must continue. There is room, however, for a broader interpretation of this function – to include building and providing facilities to advance access to early childhood development programmes. Given the importance of these programmes to a young child’s development, these responsibilities should be mandatory. Based on several rights in the Constitution and a child’s right to development, local governments arguably have positive obligations to provide these facilities, particularly in poor communities. This requires enabling legislation and committing capacity and budget. A ring-fenced conditional grant should be explored for the provision of childcare facilities, and the Department of Basic Education must monitor and support municipalities in carrying out this function.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42575100","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}