Pub Date : 2021-07-03DOI: 10.1080/02587203.2022.2035805
E. Fergus
Abstract Despite what is often said to be progressive constitutional and labour legislation in South Africa, inequality between employees who are affiliated with trade unions (especially registered and representative unions) and those who are not remains. While trade union density (particularly in the private sector) and collective bargaining coverage have declined in South Africa and many countries worldwide, this form of inequality continues to be passed over by the Labour Relations Act 66 of 1995. This article considers this form of inequality, with specific reference to the LRA’s approach to employees’ representation in the context of collective bargaining. If the imperatives of decent work and substantive equality are to be achieved, reform is desperately needed. In support of these arguments and in search of an apposite approach to reform premised on equality, the meaning of substantive equality in South Africa is considered. While dignity is found to be paramount in South African equality jurisprudence and judicial decisions, a more holistic and encompassing approach to substantive equality than dignity alone is needed to respond to the exigencies of employee representation in the context of collective bargaining. Catherine Albertyn and Sandra Fredman’s multidimensional framework for substantive equality is proposed as the most fitting model for this context, and it is applied to bargaining representation under the Labour Relations Act. Broad recommendations for change are then suggested. In conclusion, it is contended that the elements of substantive equality as outlined by Albertyn and Fredman provide a useful framework from which to recast and align the Act’s model of employee bargaining representation with both the pillars of decent work and its transformative role.
{"title":"Reimagining employee representation in the context of collective bargaining under the Labour Relations Act 66 of 1995: The imperative of substantive equality and decent work","authors":"E. Fergus","doi":"10.1080/02587203.2022.2035805","DOIUrl":"https://doi.org/10.1080/02587203.2022.2035805","url":null,"abstract":"Abstract Despite what is often said to be progressive constitutional and labour legislation in South Africa, inequality between employees who are affiliated with trade unions (especially registered and representative unions) and those who are not remains. While trade union density (particularly in the private sector) and collective bargaining coverage have declined in South Africa and many countries worldwide, this form of inequality continues to be passed over by the Labour Relations Act 66 of 1995. This article considers this form of inequality, with specific reference to the LRA’s approach to employees’ representation in the context of collective bargaining. If the imperatives of decent work and substantive equality are to be achieved, reform is desperately needed. In support of these arguments and in search of an apposite approach to reform premised on equality, the meaning of substantive equality in South Africa is considered. While dignity is found to be paramount in South African equality jurisprudence and judicial decisions, a more holistic and encompassing approach to substantive equality than dignity alone is needed to respond to the exigencies of employee representation in the context of collective bargaining. Catherine Albertyn and Sandra Fredman’s multidimensional framework for substantive equality is proposed as the most fitting model for this context, and it is applied to bargaining representation under the Labour Relations Act. Broad recommendations for change are then suggested. In conclusion, it is contended that the elements of substantive equality as outlined by Albertyn and Fredman provide a useful framework from which to recast and align the Act’s model of employee bargaining representation with both the pillars of decent work and its transformative role.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"313 - 333"},"PeriodicalIF":0.9,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47313356","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: 10.1080/02587203.2022.2043401
Busisiwe Kamolane-Kgadima, Thandeka Kathi, Tebogo Moloko, Zanele Malindi, Rudo T. Mhiribidi, Tshepo Skosana, Adelaide R. Chagopa
Abstract This note provides descriptive statistics on the Constitutional Court of South Africa’s (the Court) work in the year 2019. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of the South African Journal on Human Rights. Section 2 of this note covers those decisions in which the Court produced a written judgment, while section 3 covers applications that were considered in chambers and were dismissed without a judgment being given.
{"title":"Constitutional Court statistics for the 2019 term","authors":"Busisiwe Kamolane-Kgadima, Thandeka Kathi, Tebogo Moloko, Zanele Malindi, Rudo T. Mhiribidi, Tshepo Skosana, Adelaide R. Chagopa","doi":"10.1080/02587203.2022.2043401","DOIUrl":"https://doi.org/10.1080/02587203.2022.2043401","url":null,"abstract":"Abstract This note provides descriptive statistics on the Constitutional Court of South Africa’s (the Court) work in the year 2019. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of the South African Journal on Human Rights. Section 2 of this note covers those decisions in which the Court produced a written judgment, while section 3 covers applications that were considered in chambers and were dismissed without a judgment being given.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"423 - 436"},"PeriodicalIF":0.9,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42544396","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 : 2021-05-18DOI: 10.1080/02587203.2021.1925953
H. Nyane
In apartheid South Africa, the judiciary was relegated to obscurity by a combination of executive dominance and legislative supremacy. The courts of law had a very narrow function, which was to sea...
{"title":"The judicialisation of politics in South Africa: A critique of the emerging trend","authors":"H. Nyane","doi":"10.1080/02587203.2021.1925953","DOIUrl":"https://doi.org/10.1080/02587203.2021.1925953","url":null,"abstract":"In apartheid South Africa, the judiciary was relegated to obscurity by a combination of executive dominance and legislative supremacy. The courts of law had a very narrow function, which was to sea...","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"1 1","pages":"1-19"},"PeriodicalIF":0.9,"publicationDate":"2021-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2021.1925953","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48223185","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 : 2021-04-03DOI: 10.1080/02587203.2021.2004919
F. Veriava, Nurina Ally
Abstract Schools were the first public institutions in South Africa to be closed when the country recorded its initial cases of Covid-19. As a public health crisis quickly extended into an education crisis, government action and decision-making had an inevitable effect on the rights of learners, the impact of which was most severely felt by the poorest and most vulnerable children. While there were several varied responses to government actions, this article discusses three specific case studies that demonstrate the successful role that legal mobilisation by ‘repeat players’ within progressive civil society played in mitigating the impact of the pandemic on the rights of learners. The purpose of this is to catalogue the tactical repertoire employed and the lessons learnt in these legal mobilisation case-studies for further struggles for education reform or, indeed, for broader social reform.
{"title":"Legal mobilisation for education in the time of Covid-19","authors":"F. Veriava, Nurina Ally","doi":"10.1080/02587203.2021.2004919","DOIUrl":"https://doi.org/10.1080/02587203.2021.2004919","url":null,"abstract":"Abstract Schools were the first public institutions in South Africa to be closed when the country recorded its initial cases of Covid-19. As a public health crisis quickly extended into an education crisis, government action and decision-making had an inevitable effect on the rights of learners, the impact of which was most severely felt by the poorest and most vulnerable children. While there were several varied responses to government actions, this article discusses three specific case studies that demonstrate the successful role that legal mobilisation by ‘repeat players’ within progressive civil society played in mitigating the impact of the pandemic on the rights of learners. The purpose of this is to catalogue the tactical repertoire employed and the lessons learnt in these legal mobilisation case-studies for further struggles for education reform or, indeed, for broader social reform.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"230 - 254"},"PeriodicalIF":0.9,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42684982","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 : 2021-04-03DOI: 10.1080/02587203.2021.2022771
C. Albertyn, R. Adams
When the Covid-19 pandemic exploded in early 2020, much was unknown about the Severe Acute Respiratory Syndrome Coronavirus 2, or SARS-CoV-2, its pathways of transmission and treatment, how to contain it, and its effects. South Africa was praised for its decisive early action in declaring a state of disaster and instituting a national lockdown to flatten its infection curve, avoid deaths and a devastating burden on its health system, and buy time to contain the pandemic. From the outset, it was clear that the trade-off between public health and the economy was to have profound and deeply racialised, gendered and class-based consequences. Within a couple of months of lockdown, South Africa witnessed deepening hunger and food insecurity, loss of income and livelihoods, decreased access to education, increased violence at the hands of security forces, and illness and death. Women bore particular burdens of vulnerability, poverty, care for dependents, and heightened susceptibility to domestic violence. Across the country, Covid-19 tracked well-worn pathways of racialised, gendered and classbased inequality and poverty. In May 2020, the South African Journal on Human Rights (SAJHR), in partnership with the NRF South African Research Chair in Equality, Law and Social Justice, issued a call for papers for a conference and special issue on ‘The Covid-19 Pandemic, Inequalities and Human Rights in South Africa’. We were overwhelmed by the response and are pleased to publish this first part of a two-part special issue in which emergent and established academics analyse and reflect upon Covid-19 and its multiple effects from a range of legal, socio-legal, constitutional and human rights perspectives. This is an introduction to the first of two parts of the special issue. Covid-19’s devastating effect on our economy and society was immediate, deep and visible, with particularly severe effects on multiple, intersectional, historically disadvantaged groups, including black persons, women (particularly women-headed households), young people, learners and students in low-income households, residents of rural areas, workers in the informal sector, migrants and asylum-seekers, and persons
{"title":"Introduction: Special issue on ‘The Covid-19 Pandemic, Inequalities and Human Rights in South Africa’, part 1","authors":"C. Albertyn, R. Adams","doi":"10.1080/02587203.2021.2022771","DOIUrl":"https://doi.org/10.1080/02587203.2021.2022771","url":null,"abstract":"When the Covid-19 pandemic exploded in early 2020, much was unknown about the Severe Acute Respiratory Syndrome Coronavirus 2, or SARS-CoV-2, its pathways of transmission and treatment, how to contain it, and its effects. South Africa was praised for its decisive early action in declaring a state of disaster and instituting a national lockdown to flatten its infection curve, avoid deaths and a devastating burden on its health system, and buy time to contain the pandemic. From the outset, it was clear that the trade-off between public health and the economy was to have profound and deeply racialised, gendered and class-based consequences. Within a couple of months of lockdown, South Africa witnessed deepening hunger and food insecurity, loss of income and livelihoods, decreased access to education, increased violence at the hands of security forces, and illness and death. Women bore particular burdens of vulnerability, poverty, care for dependents, and heightened susceptibility to domestic violence. Across the country, Covid-19 tracked well-worn pathways of racialised, gendered and classbased inequality and poverty. In May 2020, the South African Journal on Human Rights (SAJHR), in partnership with the NRF South African Research Chair in Equality, Law and Social Justice, issued a call for papers for a conference and special issue on ‘The Covid-19 Pandemic, Inequalities and Human Rights in South Africa’. We were overwhelmed by the response and are pleased to publish this first part of a two-part special issue in which emergent and established academics analyse and reflect upon Covid-19 and its multiple effects from a range of legal, socio-legal, constitutional and human rights perspectives. This is an introduction to the first of two parts of the special issue. Covid-19’s devastating effect on our economy and society was immediate, deep and visible, with particularly severe effects on multiple, intersectional, historically disadvantaged groups, including black persons, women (particularly women-headed households), young people, learners and students in low-income households, residents of rural areas, workers in the informal sector, migrants and asylum-seekers, and persons","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"147 - 153"},"PeriodicalIF":0.9,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49267026","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 : 2021-04-03DOI: 10.1080/02587203.2021.2009740
N. Bohler-Muller, B. Roberts, S. Gordon, Y. D. Davids
Abstract Twenty-five years into our constitutional democracy the Covid-19 pandemic led President Ramaphosa to declare a state of national disaster in terms of the Disaster Management Act 57 of 2002 (DMA). Strict lockdown regulations promulgated under the DMA had a clear bearing on human rights, such as the rights of religious observance, assembly and demonstration, association, movement, trade, and education. In the case of De Beer v Minister of Cooperative Governance and Traditional Affairs (2020), the High Court declared some of the regulations promulgated under lockdown levels four and three irrational and thus unconstitutional. Yet the question we ask is, do ordinary South Africans support the limitation of their rights? To provide insight we analyse data from the University of Johannesburg and Human Sciences Research Council (UJ/HSRC) Covid-19 Democracy Survey, which was administered using a data free mobile platform from April 2020 to January 2021. Over three survey rounds, the willingness to sacrifice human rights remained high. Throughout the pandemic, the role of public opinion has been largely overlooked. The Covid-19 Democracy Survey served as one way to facilitate democratic participation as it allowed people to express their views, opinions and concerns about the virus and living under lockdown. This article discusses human rights ‘sacrifice’ in the specific context of this pandemic. It is argued that limiting certain constitutionally protected freedoms discussed herein may be necessary during a national disaster to ‘flatten the curve’ and protect oneself and others, but that careful attention should be paid to non-discrimination, dignity and the temporary nature of rights limitations.
{"title":"The ‘sacrifice’ of human rights during an unprecedented pandemic: Reflections on survey-based evidence","authors":"N. Bohler-Muller, B. Roberts, S. Gordon, Y. D. Davids","doi":"10.1080/02587203.2021.2009740","DOIUrl":"https://doi.org/10.1080/02587203.2021.2009740","url":null,"abstract":"Abstract Twenty-five years into our constitutional democracy the Covid-19 pandemic led President Ramaphosa to declare a state of national disaster in terms of the Disaster Management Act 57 of 2002 (DMA). Strict lockdown regulations promulgated under the DMA had a clear bearing on human rights, such as the rights of religious observance, assembly and demonstration, association, movement, trade, and education. In the case of De Beer v Minister of Cooperative Governance and Traditional Affairs (2020), the High Court declared some of the regulations promulgated under lockdown levels four and three irrational and thus unconstitutional. Yet the question we ask is, do ordinary South Africans support the limitation of their rights? To provide insight we analyse data from the University of Johannesburg and Human Sciences Research Council (UJ/HSRC) Covid-19 Democracy Survey, which was administered using a data free mobile platform from April 2020 to January 2021. Over three survey rounds, the willingness to sacrifice human rights remained high. Throughout the pandemic, the role of public opinion has been largely overlooked. The Covid-19 Democracy Survey served as one way to facilitate democratic participation as it allowed people to express their views, opinions and concerns about the virus and living under lockdown. This article discusses human rights ‘sacrifice’ in the specific context of this pandemic. It is argued that limiting certain constitutionally protected freedoms discussed herein may be necessary during a national disaster to ‘flatten the curve’ and protect oneself and others, but that careful attention should be paid to non-discrimination, dignity and the temporary nature of rights limitations.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"154 - 180"},"PeriodicalIF":0.9,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45475320","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 : 2021-04-03DOI: 10.1080/02587203.2021.2013733
Kgomotso Mufamadi, L. Koen
Abstract Since the Covid-19 virus arrived in South Africa, government has quite swiftly created a legislative framework to support its efforts to curb the rapid spread of the virus. For the most part the initiatives of government are commendable, but they very clearly leave out a great number of independent contractors and workers who may be currently incorrectly classified as such. The Department of Labour has created the TERS system (Temporary Employee/Employer Relief Scheme), geared at providing support to employers in the event that the business, as a result of the pandemic, may find that they need to retrench staff or close their business altogether in the foreseeable future. TERS is aimed at assisting employers to avoid these measures. However, the key word in all of these measures is employees. Who is an employee? There are some key differences between employees and independent contractors, the latter falling outside of the scope of the support structures set out above. However, what we know is that because of the downturn of many global economies we have seen an increased ‘uberisation’ of work. More and more companies are resorting to fixed term and independent contracts to perform work, as opposed to permanent employment. Uber drivers, domestic workers, consultants, waste pickers, performing artists, actors are all amongst the individuals who cannot claim from the UIF fund. The main criterion for access to TERS and the National Disaster Benefit is that you already contribute to the Fund through your employer. This contribution considers the challenges with the linking of social insurance to the definition of an employee, the possibility of expansion of the scope of the UIF Act as well the restructuring of tax contributions made by independent contractors to possibly allow them access to increased social protection.
{"title":"Independent contractors and Covid-19 relief: Tax and social insurance legislative reform to extend protection to independent contractors","authors":"Kgomotso Mufamadi, L. Koen","doi":"10.1080/02587203.2021.2013733","DOIUrl":"https://doi.org/10.1080/02587203.2021.2013733","url":null,"abstract":"Abstract Since the Covid-19 virus arrived in South Africa, government has quite swiftly created a legislative framework to support its efforts to curb the rapid spread of the virus. For the most part the initiatives of government are commendable, but they very clearly leave out a great number of independent contractors and workers who may be currently incorrectly classified as such. The Department of Labour has created the TERS system (Temporary Employee/Employer Relief Scheme), geared at providing support to employers in the event that the business, as a result of the pandemic, may find that they need to retrench staff or close their business altogether in the foreseeable future. TERS is aimed at assisting employers to avoid these measures. However, the key word in all of these measures is employees. Who is an employee? There are some key differences between employees and independent contractors, the latter falling outside of the scope of the support structures set out above. However, what we know is that because of the downturn of many global economies we have seen an increased ‘uberisation’ of work. More and more companies are resorting to fixed term and independent contracts to perform work, as opposed to permanent employment. Uber drivers, domestic workers, consultants, waste pickers, performing artists, actors are all amongst the individuals who cannot claim from the UIF fund. The main criterion for access to TERS and the National Disaster Benefit is that you already contribute to the Fund through your employer. This contribution considers the challenges with the linking of social insurance to the definition of an employee, the possibility of expansion of the scope of the UIF Act as well the restructuring of tax contributions made by independent contractors to possibly allow them access to increased social protection.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"277 - 301"},"PeriodicalIF":0.9,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47178559","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 : 2021-04-03DOI: 10.1080/02587203.2021.2010592
Carin Runciman
Abstract This article traces how the South African state responded to protect workers in the formal sector during the first year of the Covid Covid-19 pandemic. It argues that the protections that the state sought to offer, in the form of the income relief from the Covid-19 Temporary Employer/Employee Relief Scheme and its limited attempts to ensure occupational health and safety are grounded in neoliberal logics. These logics, however, are not new and were cemented into post-apartheid labour law through the Labour Relations Act and the Basic Conditions of Employment Act, which enabled ‘regulated flexibility’. The ‘techniques of neoliberalism’ have also played an important role in shaping the institutions responsible for protecting and enforcing worker rights, the Commission for Conciliation, Mediation and Arbitration and the Department of Employment and Labour. The article details how neoliberal logics have shaped the operation of these institutions and, in turn, conditioned the state’s pandemic responses with long-term consequences for deepening inequality, access to justice and worker rights.
{"title":"Worker rights and the neoliberal state under Covid-19","authors":"Carin Runciman","doi":"10.1080/02587203.2021.2010592","DOIUrl":"https://doi.org/10.1080/02587203.2021.2010592","url":null,"abstract":"Abstract This article traces how the South African state responded to protect workers in the formal sector during the first year of the Covid Covid-19 pandemic. It argues that the protections that the state sought to offer, in the form of the income relief from the Covid-19 Temporary Employer/Employee Relief Scheme and its limited attempts to ensure occupational health and safety are grounded in neoliberal logics. These logics, however, are not new and were cemented into post-apartheid labour law through the Labour Relations Act and the Basic Conditions of Employment Act, which enabled ‘regulated flexibility’. The ‘techniques of neoliberalism’ have also played an important role in shaping the institutions responsible for protecting and enforcing worker rights, the Commission for Conciliation, Mediation and Arbitration and the Department of Employment and Labour. The article details how neoliberal logics have shaped the operation of these institutions and, in turn, conditioned the state’s pandemic responses with long-term consequences for deepening inequality, access to justice and worker rights.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"255 - 276"},"PeriodicalIF":0.9,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46603246","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 : 2021-04-03DOI: 10.1080/02587203.2021.1972331
S. Liebenberg
Abstract This article examines the potential of the socio-economic rights doctrine of non-retrogression to hold the state accountable for policies of fiscal consolidation (‘austerity measures’) in South Africa. These policies threaten to erode many programmes and institutions critical to the delivery of the socio-economic rights recognised in the Constitution. The article provides a contextual analysis of fiscal consolidation policies in South Africa both in the lead up to and during the Covid-19 pandemic. It examines the nature of the doctrine of non-retrogression in international human rights law, and considers how the doctrine could be translated into South Africa’s existing jurisprudential framework on socio-economic rights. It concludes by considering how the procedural and participatory dimensions of the non-retrogression doctrine can play an important role in alleviating the institutional tensions involved in the judicial review of retrogressive measures. Ultimately, the article seeks to demonstrate that the doctrine of non-retrogression provides a framework and set of principles that can advance greater accountability for rights-eroding budgetary decisions.
{"title":"Austerity in the midst of a pandemic: Pursuing accountability through the socio-economic rights doctrine of non-retrogression","authors":"S. Liebenberg","doi":"10.1080/02587203.2021.1972331","DOIUrl":"https://doi.org/10.1080/02587203.2021.1972331","url":null,"abstract":"Abstract This article examines the potential of the socio-economic rights doctrine of non-retrogression to hold the state accountable for policies of fiscal consolidation (‘austerity measures’) in South Africa. These policies threaten to erode many programmes and institutions critical to the delivery of the socio-economic rights recognised in the Constitution. The article provides a contextual analysis of fiscal consolidation policies in South Africa both in the lead up to and during the Covid-19 pandemic. It examines the nature of the doctrine of non-retrogression in international human rights law, and considers how the doctrine could be translated into South Africa’s existing jurisprudential framework on socio-economic rights. It concludes by considering how the procedural and participatory dimensions of the non-retrogression doctrine can play an important role in alleviating the institutional tensions involved in the judicial review of retrogressive measures. Ultimately, the article seeks to demonstrate that the doctrine of non-retrogression provides a framework and set of principles that can advance greater accountability for rights-eroding budgetary decisions.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"181 - 204"},"PeriodicalIF":0.9,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48004004","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 : 2021-04-03DOI: 10.1080/02587203.2021.1987156
Julian Brown
Over the past 25 years, South Africa’s political order has been shaped by an official commitment to constitutionalism, and a popular faith in the ability of the judiciary to hold the executive and the legislature to account. This has resulted in litigation requiring the state to provide anti-retroviral treatment to HIV-positive people across the country, to design and implement an Emergency Housing Policy, and to implement the neglected Upgrading of Informal Settlements Policy. It has also led courts to order the dismissal of senior members of the government bureaucracy, and to require that political party funding be publicly disclosed. In all of these cases – and many others – the courts have been asked to mediate between citizens, communities, and opposition parties, and the state itself. This process has sometimes been described as ‘lawfare’ – that is, as the pursuit of traditionally political ends through legal and judicial means. When invoked in the scholarly literature, the concept of ‘lawfare’ directs our attention towards the institutional relationship between the judiciary and the more explicitly political branches of the state. It challenges assumptions of a strict separation of powers by emphasising the inevitably political effects of judicial decision-making – and by showing how these effects can be courted by litigants, who seek to use legal arguments in the courtroom to achieve political and social ends outside of it.
{"title":"Lawfare under lockdown: Challenges to South Africa’s Covid Regulations, March to August 2020","authors":"Julian Brown","doi":"10.1080/02587203.2021.1987156","DOIUrl":"https://doi.org/10.1080/02587203.2021.1987156","url":null,"abstract":"Over the past 25 years, South Africa’s political order has been shaped by an official commitment to constitutionalism, and a popular faith in the ability of the judiciary to hold the executive and the legislature to account. This has resulted in litigation requiring the state to provide anti-retroviral treatment to HIV-positive people across the country, to design and implement an Emergency Housing Policy, and to implement the neglected Upgrading of Informal Settlements Policy. It has also led courts to order the dismissal of senior members of the government bureaucracy, and to require that political party funding be publicly disclosed. In all of these cases – and many others – the courts have been asked to mediate between citizens, communities, and opposition parties, and the state itself. This process has sometimes been described as ‘lawfare’ – that is, as the pursuit of traditionally political ends through legal and judicial means. When invoked in the scholarly literature, the concept of ‘lawfare’ directs our attention towards the institutional relationship between the judiciary and the more explicitly political branches of the state. It challenges assumptions of a strict separation of powers by emphasising the inevitably political effects of judicial decision-making – and by showing how these effects can be courted by litigants, who seek to use legal arguments in the courtroom to achieve political and social ends outside of it.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"302 - 312"},"PeriodicalIF":0.9,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43666592","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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