Pub Date : 2021-10-02DOI: 10.1080/02587203.2022.2090428
Justin Winchester
Abstract South Africa’s status as the most unequal country in the world unacceptably mocks the Constitution’s promise to achieve an equal society. Positing the introduction of a progressive, recurring, threshold-tested tax on private net wealth holding as a solution to this inequality, this article asks whether there is a constitutional imperative to introduce a wealth tax in South Africa. Arguing in the affirmative, the article situates the debate in the context of the shift in economic policy-making from a focus on labour income to wealth given global economic, political, and social concerns inherent in extremely wealth-unequal societies. The article shows that South Africa’s Constitution imports a substantive notion of equality that places a positive obligation on the state to remedy inequality through putting in place contextually appropriate measures. Wealth inequality is a disastrous hallmark of our context and racially demarcated wealth inequality has endured owing to wealth’s self-perpetuating value and intergenerational transferability. This deepens social injustices, undermines other redistribution efforts, and has created a poverty trap for Black South Africans hindering their achievement of equality in the substantive sense. A wealth tax that satisfies minimum thresholds of feasibility can be justifiably introduced given the severity of South Africa’s wealth inequality and the need for any available measure to prevent its worsening. Private persons may justifiably be affected by such redistribution policies, which should take the form of a wealth tax for symbolic and practical reasons and despite legitimate worries of corruption. Furthermore, a wealth tax would pass constitutional muster. The article concludes that there is an equality-laden imperative to introduce a wealth tax in South Africa, without which the Constitution’s promise of an equal society becomes increasingly impossible.
{"title":"Too taxing, too much taxing, or not progressive enough? The introduction of a wealth tax as an equality imperative in South Africa","authors":"Justin Winchester","doi":"10.1080/02587203.2022.2090428","DOIUrl":"https://doi.org/10.1080/02587203.2022.2090428","url":null,"abstract":"Abstract South Africa’s status as the most unequal country in the world unacceptably mocks the Constitution’s promise to achieve an equal society. Positing the introduction of a progressive, recurring, threshold-tested tax on private net wealth holding as a solution to this inequality, this article asks whether there is a constitutional imperative to introduce a wealth tax in South Africa. Arguing in the affirmative, the article situates the debate in the context of the shift in economic policy-making from a focus on labour income to wealth given global economic, political, and social concerns inherent in extremely wealth-unequal societies. The article shows that South Africa’s Constitution imports a substantive notion of equality that places a positive obligation on the state to remedy inequality through putting in place contextually appropriate measures. Wealth inequality is a disastrous hallmark of our context and racially demarcated wealth inequality has endured owing to wealth’s self-perpetuating value and intergenerational transferability. This deepens social injustices, undermines other redistribution efforts, and has created a poverty trap for Black South Africans hindering their achievement of equality in the substantive sense. A wealth tax that satisfies minimum thresholds of feasibility can be justifiably introduced given the severity of South Africa’s wealth inequality and the need for any available measure to prevent its worsening. Private persons may justifiably be affected by such redistribution policies, which should take the form of a wealth tax for symbolic and practical reasons and despite legitimate worries of corruption. Furthermore, a wealth tax would pass constitutional muster. The article concludes that there is an equality-laden imperative to introduce a wealth tax in South Africa, without which the Constitution’s promise of an equal society becomes increasingly impossible.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"512 - 534"},"PeriodicalIF":0.9,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45563489","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}
Pub Date : 2021-10-02DOI: 10.1080/02587203.2022.2094829
Judith Katzew
Abstract Insurance has the potential to make a positive impact on the financial stability and economic wellbeing of societies. However the Covid-19 pandemic has shone a harsh light on the consequences of both the insurance industry and the state’s failure to fully realise the right of ‘everyone’ to ‘appropriate social assistance’ in terms of s 27 of the Constitution of the Republic of South Africa, 1996. This was brought into sharp focus in the hospitality sector where the failure of insurers to pay business interruption policies resulted in business closures and job losses. An analysis of the business interruption court cases that followed highlights the progressive approach by the courts who applied a contextual and purposive interpretation of the insurance policies. I argue that this is in keeping with the objectives of insurance law set out in the Insurance Act 18 of 2017, which include the alignment of the insurance industry to the values of the Constitution.
{"title":"The role of insurance at the intersection of Covid-19 and inequality through the lens of the cases: Cafe Chameleon CC v Guardrisk Insurance Company Ltd and Ma-Afrika Hotels (Pty) Ltd v Santam Limited","authors":"Judith Katzew","doi":"10.1080/02587203.2022.2094829","DOIUrl":"https://doi.org/10.1080/02587203.2022.2094829","url":null,"abstract":"Abstract Insurance has the potential to make a positive impact on the financial stability and economic wellbeing of societies. However the Covid-19 pandemic has shone a harsh light on the consequences of both the insurance industry and the state’s failure to fully realise the right of ‘everyone’ to ‘appropriate social assistance’ in terms of s 27 of the Constitution of the Republic of South Africa, 1996. This was brought into sharp focus in the hospitality sector where the failure of insurers to pay business interruption policies resulted in business closures and job losses. An analysis of the business interruption court cases that followed highlights the progressive approach by the courts who applied a contextual and purposive interpretation of the insurance policies. I argue that this is in keeping with the objectives of insurance law set out in the Insurance Act 18 of 2017, which include the alignment of the insurance industry to the values of the Constitution.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"492 - 511"},"PeriodicalIF":0.9,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42441321","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}
Pub Date : 2021-10-02DOI: 10.1080/02587203.2022.2054467
J. Klaaren, Brian Ray
Abstract This paper assesses South Africa’s recent development and actual use of digital health surveillance tools from a comparative and human rights perspective. We first summarise the debate and emerging evidence regarding whether and how digital health surveillance tools could assist the public health response to the pandemic. Here, we develop a tentative integrated analysis of the intersecting human rights implications of these tools. Our assessment of South Africa’s actual use of digital health technologies to combat the pandemic then interweaves two themes. First, South Africa’s abrupt and still largely unexplained decision to abandon the original Tracing Database, while clearly in line with global trends in constraining the ambit of covid apps to preserve privacy, may have missed the opportunity to develop and deploy a more effective but still rights-protective model for digital health surveillance. Second, and conversely, South Africa’s approach to developing the Tracing Database, including its laudable and innovative oversight structure, reflects a troubling lack of engagement with relevant stakeholders, including human rights and community groups, as well as the private sector. It also reflects a limited public capacity to assess relevant technologies and to partner both with those stakeholders and the private sector in a genuine private/public space.
{"title":"South Africa’s technologies enhancing contact tracing for Covid-19: A human rights and techno-politics assessment","authors":"J. Klaaren, Brian Ray","doi":"10.1080/02587203.2022.2054467","DOIUrl":"https://doi.org/10.1080/02587203.2022.2054467","url":null,"abstract":"Abstract This paper assesses South Africa’s recent development and actual use of digital health surveillance tools from a comparative and human rights perspective. We first summarise the debate and emerging evidence regarding whether and how digital health surveillance tools could assist the public health response to the pandemic. Here, we develop a tentative integrated analysis of the intersecting human rights implications of these tools. Our assessment of South Africa’s actual use of digital health technologies to combat the pandemic then interweaves two themes. First, South Africa’s abrupt and still largely unexplained decision to abandon the original Tracing Database, while clearly in line with global trends in constraining the ambit of covid apps to preserve privacy, may have missed the opportunity to develop and deploy a more effective but still rights-protective model for digital health surveillance. Second, and conversely, South Africa’s approach to developing the Tracing Database, including its laudable and innovative oversight structure, reflects a troubling lack of engagement with relevant stakeholders, including human rights and community groups, as well as the private sector. It also reflects a limited public capacity to assess relevant technologies and to partner both with those stakeholders and the private sector in a genuine private/public space.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"535 - 557"},"PeriodicalIF":0.9,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43506792","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}
Pub Date : 2021-10-02DOI: 10.1080/02587203.2022.2047772
M. Olivier, A. Govindjee
Abstract This contribution interrogates selected social security law issues applicable to asylum-seekers. It does so from the perspective of among others the impact of Covid-19-related labour market and social security regulations and directives (issued in terms of the Disaster Management Act) and against the background of recent statutory and policy developments, and jurisprudential responses. The overarching objective of the article is to provide guidance as to the complex balance between, on the one hand, immigration law principles and, on the other, the imperatives embedded in a human rights-infused approach, with particular reference to the right to (access to) social security, other related fundamental rights, and the principles underlying the limitation of these rights. A set of guiding principles, responsive to Covid-19 regulatory realities, are developed and proposed.
{"title":"Asylum seekers in South Africa and Covid-19: A catalyst for social security law reform?","authors":"M. Olivier, A. Govindjee","doi":"10.1080/02587203.2022.2047772","DOIUrl":"https://doi.org/10.1080/02587203.2022.2047772","url":null,"abstract":"Abstract This contribution interrogates selected social security law issues applicable to asylum-seekers. It does so from the perspective of among others the impact of Covid-19-related labour market and social security regulations and directives (issued in terms of the Disaster Management Act) and against the background of recent statutory and policy developments, and jurisprudential responses. The overarching objective of the article is to provide guidance as to the complex balance between, on the one hand, immigration law principles and, on the other, the imperatives embedded in a human rights-infused approach, with particular reference to the right to (access to) social security, other related fundamental rights, and the principles underlying the limitation of these rights. A set of guiding principles, responsive to Covid-19 regulatory realities, are developed and proposed.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"442 - 465"},"PeriodicalIF":0.9,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43558144","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}
Pub Date : 2021-10-02DOI: 10.1080/02587203.2021.2099560
C. Albertyn, R. Adams
The South African Journal on Human Rights and the NRF South African Research Chair in Equality, Law and Social Justice are pleased to publish the second part of our special double issue on ‘ The Covid-19 Pandemic, Inequalities and Human Rights in South Africa ’ . We publish this in the wake of continuing evidence of the race, gender and class inequalities that were reflected, deepened and reproduced by the pandemic and by government responses to it. Research has continued to confirm the dire socio-economic and health consequences of the pandemic. Furthermore, it is increasingly argued that the deepening poverty and inequality under the epidemic 1 is, at least partly, due to the fact that successive lockdowns failed to account sufficiently for ‘ realities like poverty, food insecurity, gender-based violence and insecure housing ’ . 2 As we know, this tracks South Africa ’ s historic and deeply embedded lines of race, gender and class disadvantage. These high structural inequalities also shaped the increased risk of severe illness and death, arising out of Covid-19 infection, among black South Africans. 3 Since the start of the pandemic in early 2020, the publication of successive regulations under the Disaster Management Act 57 of 2002 and quite extensive litigation 4 has meant that the pandemic has been extensively regulated and governed through law.
{"title":"Introduction: Special issue on ‘The Covid-19 Pandemic, Inequalities and Human Rights in South Africa’, part 2","authors":"C. Albertyn, R. Adams","doi":"10.1080/02587203.2021.2099560","DOIUrl":"https://doi.org/10.1080/02587203.2021.2099560","url":null,"abstract":"The South African Journal on Human Rights and the NRF South African Research Chair in Equality, Law and Social Justice are pleased to publish the second part of our special double issue on ‘ The Covid-19 Pandemic, Inequalities and Human Rights in South Africa ’ . We publish this in the wake of continuing evidence of the race, gender and class inequalities that were reflected, deepened and reproduced by the pandemic and by government responses to it. Research has continued to confirm the dire socio-economic and health consequences of the pandemic. Furthermore, it is increasingly argued that the deepening poverty and inequality under the epidemic 1 is, at least partly, due to the fact that successive lockdowns failed to account sufficiently for ‘ realities like poverty, food insecurity, gender-based violence and insecure housing ’ . 2 As we know, this tracks South Africa ’ s historic and deeply embedded lines of race, gender and class disadvantage. These high structural inequalities also shaped the increased risk of severe illness and death, arising out of Covid-19 infection, among black South Africans. 3 Since the start of the pandemic in early 2020, the publication of successive regulations under the Disaster Management Act 57 of 2002 and quite extensive litigation 4 has meant that the pandemic has been extensively regulated and governed through law.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"437 - 441"},"PeriodicalIF":0.9,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44304548","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}
Pub Date : 2021-07-03DOI: 10.1080/02587203.2022.2044377
Lisa Chamberlain
On 9 February 2021, the Western Cape High Court delivered an important victory for all human rights defenders (HRDs) working to challenge corporate and state power in South Africa. The case involves the consolidation of three separate claims of alleged defamation brought by Australian-based mining company Mineral Commodities Limited (MRC) and its affiliates (referred to collectively in this case note as ‘the mining company’), against six HRDs (referred to collectively here as ‘the activists’) who have been critical of two of the company’s controversial operations. These mining operations are in Xolobeni in the Eastern Cape and near Lutzville on the West Coast respectively. The case is a critically important development in the field of human rights and social justice as it has recognised these defamation claims as an attempt by the mining company to silence criticism of its operations and hence as the Strategic Litigation Against Public Participation (SLAPP) suit (discussed further below). The judgment, authored by Goliath DJP, will be referred to in this case note as ‘the Goliath judgment’. To fully appreciate the significance of the Goliath judgment, it is necessary to understand the broader context in which it is located. It is widely acknowledged that HRDs play a seminal role in furthering the realisation of human rights, and thereby in pro-
{"title":"SLAPPing back: A new legal remedy for targets of corporate bullying","authors":"Lisa Chamberlain","doi":"10.1080/02587203.2022.2044377","DOIUrl":"https://doi.org/10.1080/02587203.2022.2044377","url":null,"abstract":"On 9 February 2021, the Western Cape High Court delivered an important victory for all human rights defenders (HRDs) working to challenge corporate and state power in South Africa. The case involves the consolidation of three separate claims of alleged defamation brought by Australian-based mining company Mineral Commodities Limited (MRC) and its affiliates (referred to collectively in this case note as ‘the mining company’), against six HRDs (referred to collectively here as ‘the activists’) who have been critical of two of the company’s controversial operations. These mining operations are in Xolobeni in the Eastern Cape and near Lutzville on the West Coast respectively. The case is a critically important development in the field of human rights and social justice as it has recognised these defamation claims as an attempt by the mining company to silence criticism of its operations and hence as the Strategic Litigation Against Public Participation (SLAPP) suit (discussed further below). The judgment, authored by Goliath DJP, will be referred to in this case note as ‘the Goliath judgment’. To fully appreciate the significance of the Goliath judgment, it is necessary to understand the broader context in which it is located. It is widely acknowledged that HRDs play a seminal role in furthering the realisation of human rights, and thereby in pro-","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"410 - 422"},"PeriodicalIF":0.9,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48604579","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}
Pub Date : 2021-07-03DOI: 10.1080/02587203.2022.2041479
B. Tshehla
Abstract Section 12(1) of the Constitution of the Republic of South Africa, 1996, enshrines everyone’s ‘right to freedom and security of the person and this right ‘includes the right not to be deprived of freedom arbitrarily or without just cause’. Several cases emanating from actions of police officers in effecting arrest have come before the courts over time. The courts, therefore, had the opportunity to align the law of arrest with the constitutional injunction. However, the courts seem to restrict their focus to the (un)lawfulness of the arrest and hardly include ‘arbitrariness’ in analysis. It is argued that a proper approach is to go beyond the (un)lawfulness of the arrest by enquiring into its necessity, justifiability and proportionality. The use of the word ‘arbitrarily’ instead ‘unlawfully’ in the Constitution is not without significance. It signals that the Constitution requires more than just the lawfulness of the arrest. In this article, it is suggested that the current legal position that, in broad terms, holds that a lawful arrest cannot be arbitrary has to be revisited. The focus of the article is arrest without a warrant because, it appears, that is where most of the problems arise.
{"title":"Arrest without a warrant: Is the current South African approach warranted?","authors":"B. Tshehla","doi":"10.1080/02587203.2022.2041479","DOIUrl":"https://doi.org/10.1080/02587203.2022.2041479","url":null,"abstract":"Abstract Section 12(1) of the Constitution of the Republic of South Africa, 1996, enshrines everyone’s ‘right to freedom and security of the person and this right ‘includes the right not to be deprived of freedom arbitrarily or without just cause’. Several cases emanating from actions of police officers in effecting arrest have come before the courts over time. The courts, therefore, had the opportunity to align the law of arrest with the constitutional injunction. However, the courts seem to restrict their focus to the (un)lawfulness of the arrest and hardly include ‘arbitrariness’ in analysis. It is argued that a proper approach is to go beyond the (un)lawfulness of the arrest by enquiring into its necessity, justifiability and proportionality. The use of the word ‘arbitrarily’ instead ‘unlawfully’ in the Constitution is not without significance. It signals that the Constitution requires more than just the lawfulness of the arrest. In this article, it is suggested that the current legal position that, in broad terms, holds that a lawful arrest cannot be arbitrary has to be revisited. The focus of the article is arrest without a warrant because, it appears, that is where most of the problems arise.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"355 - 371"},"PeriodicalIF":0.9,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49424934","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}
Pub Date : 2021-07-03DOI: 10.1080/02587203.2021.2012819
Theo Boshoff
Abstract Property valuations have always played an important role in the calculation of compensation for expropriation. The shift from market-based compensation towards just and equitable compensation prescribed by s 25 of the South African Constitution poses important questions as to the role of a valuation in calculating compensation for property expropriated for land reform purposes. The Property Valuation Act of 2014 established the Valuer-General to determine the value of these properties according to the formula reserved for the determination of just and equitable compensation, leading to contestation regarding its role in determining compensation. Recent case law clarified that the valuation does not prevent the Minister from paying compensation that differs from the value determined by the Valuer-General nor does it bind the courts when called on to determine compensation under s 42 D of the Restitution Act. The role of the Valuer-General remains unclear when expropriation proceedings are initiated by the state. This article analyses the function of statutory valuation bodies in Australian law to determine compensation for compulsory acquisition as persuasive authority to further guide the interpretation of the Property Valuation Act.
{"title":"The role of the Valuer-General in the calculation of compensation for expropriation: A comparative analysis between South African and Australian law","authors":"Theo Boshoff","doi":"10.1080/02587203.2021.2012819","DOIUrl":"https://doi.org/10.1080/02587203.2021.2012819","url":null,"abstract":"Abstract Property valuations have always played an important role in the calculation of compensation for expropriation. The shift from market-based compensation towards just and equitable compensation prescribed by s 25 of the South African Constitution poses important questions as to the role of a valuation in calculating compensation for property expropriated for land reform purposes. The Property Valuation Act of 2014 established the Valuer-General to determine the value of these properties according to the formula reserved for the determination of just and equitable compensation, leading to contestation regarding its role in determining compensation. Recent case law clarified that the valuation does not prevent the Minister from paying compensation that differs from the value determined by the Valuer-General nor does it bind the courts when called on to determine compensation under s 42 D of the Restitution Act. The role of the Valuer-General remains unclear when expropriation proceedings are initiated by the state. This article analyses the function of statutory valuation bodies in Australian law to determine compensation for compulsory acquisition as persuasive authority to further guide the interpretation of the Property Valuation Act.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"334 - 354"},"PeriodicalIF":0.9,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46872961","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}
Pub Date : 2021-07-03DOI: 10.1080/02587203.2022.2030651
J. Barnard-Naudé
Abstract This article proposes an aesthetic reading of the recent decision of the Western Cape High Court in the case of Adonisi v Minister for Transport and Public Works: Western Cape. The aesthetic reading pursued here is advanced through the work of Jacques Rancière on the aesthetics of politics. The article sets out to establish an understanding of Rancière’s key concept of the ‘distribution of the sensible’. It then proposes a theoretical alignment of the concept with Carl Schmitt’s concept of nomos. The purpose of such an alignment is to draw out the aesthetic relationship between space and law in the South African context – a relationship which is not only co-constitutive but also foundational. The article then proposes that an instance of Rancière’s version of politics occurs in the Adonisi case, by virtue primarily of the fact that Ms Adonisi asserted a presupposed equality in the dispute – an equality which was not available to her in the post-apartheid distribution of the sensible and an equality in which the court participated politically. The article concludes with a Rancièrian reconsideration of the subject of human rights in the context of recent expressions by Tshepo Madlingozi.
{"title":"Adonisi v Minister for Transport and Public Works: Western Cape: An ‘aesthetic’ reading","authors":"J. Barnard-Naudé","doi":"10.1080/02587203.2022.2030651","DOIUrl":"https://doi.org/10.1080/02587203.2022.2030651","url":null,"abstract":"Abstract This article proposes an aesthetic reading of the recent decision of the Western Cape High Court in the case of Adonisi v Minister for Transport and Public Works: Western Cape. The aesthetic reading pursued here is advanced through the work of Jacques Rancière on the aesthetics of politics. The article sets out to establish an understanding of Rancière’s key concept of the ‘distribution of the sensible’. It then proposes a theoretical alignment of the concept with Carl Schmitt’s concept of nomos. The purpose of such an alignment is to draw out the aesthetic relationship between space and law in the South African context – a relationship which is not only co-constitutive but also foundational. The article then proposes that an instance of Rancière’s version of politics occurs in the Adonisi case, by virtue primarily of the fact that Ms Adonisi asserted a presupposed equality in the dispute – an equality which was not available to her in the post-apartheid distribution of the sensible and an equality in which the court participated politically. The article concludes with a Rancièrian reconsideration of the subject of human rights in the context of recent expressions by Tshepo Madlingozi.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"392 - 409"},"PeriodicalIF":0.9,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43787060","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}
Pub Date : 2021-07-03DOI: 10.1080/02587203.2022.2030249
Sophy Baird
Abstract While often lumped under the umbrella of the initialism LGBTQI+, issues pertaining to intersex individuals are often overlooked. Intersex people are the silent minority within a minority. While South African law, on the face of it, appears to offer infinite protections for those who are intersex, a culture of silence has allowed for a number of human rights abuses to be perpetrated against the intersex community. The impacts of these gross violations of human rights unfortunately begin at infancy. Children are subjected to non-essential, cosmetic surgery in order to comply with the cisnormative standard that sexual traits only belong within the binary construct of ‘male’ and ‘female’. These surgeries are performed without the consent of the child and often result in life-long medical complications and mental trauma. This article investigates the extent to which the rights of intersex children are being violated. It investigates whether harmful practices are in the best interests of the child in accordance with, inter alia, the South African Constitution. Furthermore, the article will examine the extent to which the incongruence of the Births and Deaths Registration Act, Children’s Act, National Health Act and Alterations of Sex Description and Sex Status Act further exacerbate the problem.
{"title":"The silence of the ‘I’: Legal and social implications of intersex genital mutilation of children","authors":"Sophy Baird","doi":"10.1080/02587203.2022.2030249","DOIUrl":"https://doi.org/10.1080/02587203.2022.2030249","url":null,"abstract":"Abstract While often lumped under the umbrella of the initialism LGBTQI+, issues pertaining to intersex individuals are often overlooked. Intersex people are the silent minority within a minority. While South African law, on the face of it, appears to offer infinite protections for those who are intersex, a culture of silence has allowed for a number of human rights abuses to be perpetrated against the intersex community. The impacts of these gross violations of human rights unfortunately begin at infancy. Children are subjected to non-essential, cosmetic surgery in order to comply with the cisnormative standard that sexual traits only belong within the binary construct of ‘male’ and ‘female’. These surgeries are performed without the consent of the child and often result in life-long medical complications and mental trauma. This article investigates the extent to which the rights of intersex children are being violated. It investigates whether harmful practices are in the best interests of the child in accordance with, inter alia, the South African Constitution. Furthermore, the article will examine the extent to which the incongruence of the Births and Deaths Registration Act, Children’s Act, National Health Act and Alterations of Sex Description and Sex Status Act further exacerbate the problem.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"372 - 391"},"PeriodicalIF":0.9,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47821906","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}
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