Pub Date : 2021-04-03DOI: 10.1080/02587203.2021.2011613
C. Albertyn
Abstract Within the broad context of deepening inequality and poverty under Covid-19, this article examines three equality-related cases that address the distribution of economic relief to mitigate the effects of the pandemic in South Africa. In doing so, it explores three broad themes. First, what the cases reveal about ongoing political and legal contestation over the meaning of equality and the application of the equality right. Second, the disjuncture that exists between the powerful inclusive tendencies of the s 9(3) protection against unfair discrimination and the limits imposed on this by poor implementation and questions of economic inclusion and (re)distribution. Third, how courts understand the place of race, gender and other criteria of disadvantage in the distribution of emergency relief. Overall it draws out the contours of the courts’ commitment to substantive equality. Here it emphasises their role in economic inclusion and an emerging interpretive approach which gives rise to constitutionally mandated positive duties on government to consider race and gender disadvantage in questions of economic relief. This development, it suggests, fits with an emergent positive duties jurisprudence in socio-economic rights cases that can be further developed to hold the state accountable for the achievement of substantive equality.
{"title":"Section 9 in a time of COVID: Substantive equality, economic inclusion and positive duties","authors":"C. Albertyn","doi":"10.1080/02587203.2021.2011613","DOIUrl":"https://doi.org/10.1080/02587203.2021.2011613","url":null,"abstract":"Abstract Within the broad context of deepening inequality and poverty under Covid-19, this article examines three equality-related cases that address the distribution of economic relief to mitigate the effects of the pandemic in South Africa. In doing so, it explores three broad themes. First, what the cases reveal about ongoing political and legal contestation over the meaning of equality and the application of the equality right. Second, the disjuncture that exists between the powerful inclusive tendencies of the s 9(3) protection against unfair discrimination and the limits imposed on this by poor implementation and questions of economic inclusion and (re)distribution. Third, how courts understand the place of race, gender and other criteria of disadvantage in the distribution of emergency relief. Overall it draws out the contours of the courts’ commitment to substantive equality. Here it emphasises their role in economic inclusion and an emerging interpretive approach which gives rise to constitutionally mandated positive duties on government to consider race and gender disadvantage in questions of economic relief. This development, it suggests, fits with an emergent positive duties jurisprudence in socio-economic rights cases that can be further developed to hold the state accountable for the achievement of substantive equality.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"205 - 229"},"PeriodicalIF":0.9,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48205149","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 : 2021-01-02DOI: 10.1080/02587203.2021.1974313
Moses Retselisitsoe Phooko
Abstract This article analyses selected jurisprudence of various courts in South Africa on class actions. It traces the development of class actions since 1994 to date. The selected cases have been chosen because they demonstrate progression from courts’ initial narrow approach – where class actions were confined to cases involving violation of the rights contained in the Constitution to now extending them to claims outside the Bill of Rights. To a limited extent, the article borrows good practices from the developed Canadian law detailing their procedure for class actions as a comparison with the position in South Africa. The conclusion reached is that there has been a fair progress in the development of class actions.
{"title":"The development of class actions in South Africa: Where are we through case law?","authors":"Moses Retselisitsoe Phooko","doi":"10.1080/02587203.2021.1974313","DOIUrl":"https://doi.org/10.1080/02587203.2021.1974313","url":null,"abstract":"Abstract This article analyses selected jurisprudence of various courts in South Africa on class actions. It traces the development of class actions since 1994 to date. The selected cases have been chosen because they demonstrate progression from courts’ initial narrow approach – where class actions were confined to cases involving violation of the rights contained in the Constitution to now extending them to claims outside the Bill of Rights. To a limited extent, the article borrows good practices from the developed Canadian law detailing their procedure for class actions as a comparison with the position in South Africa. The conclusion reached is that there has been a fair progress in the development of class actions.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"7 - 20"},"PeriodicalIF":0.9,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41722368","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 : 2021-01-02DOI: 10.1080/02587203.2021.2002186
E. Schuster
Abstract The need for decisive action on climate change is becoming increasingly urgent. The International Panel on Climate Change has warned that, on the current trajectory, global warming is likely to reach 1.5° Celsius above pre-industrial levels in the next ten to thirty years. This paper investigates the potential for a strategic climate change class action in South Africa by tracking two procedural devices: the class action and the public interest action. The example of Urgenda, a landmark judgement from the Netherlands, is used to show that while class actions may serve a limited purpose in a climate change litigation (particularly where there is a claim for damages) the public interest action will continue to be the more appropriate mechanism for strategic climate change litigation.
{"title":"Class actions in a changing climate","authors":"E. Schuster","doi":"10.1080/02587203.2021.2002186","DOIUrl":"https://doi.org/10.1080/02587203.2021.2002186","url":null,"abstract":"Abstract The need for decisive action on climate change is becoming increasingly urgent. The International Panel on Climate Change has warned that, on the current trajectory, global warming is likely to reach 1.5° Celsius above pre-industrial levels in the next ten to thirty years. This paper investigates the potential for a strategic climate change class action in South Africa by tracking two procedural devices: the class action and the public interest action. The example of Urgenda, a landmark judgement from the Netherlands, is used to show that while class actions may serve a limited purpose in a climate change litigation (particularly where there is a claim for damages) the public interest action will continue to be the more appropriate mechanism for strategic climate change litigation.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"102 - 125"},"PeriodicalIF":0.9,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44984458","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 : 2021-01-02DOI: 10.1080/02587203.2021.1978151
S. Abdool Karim
The foreword to Foundations of Global Health & Human Rights begins with Tedros Adanom Ghebreyesus, director-general of the World Health Organization (WHO) describing the importance of human rights for the achievement of public health. These words set the tone and succinctly articulate the underlying philosophy of the text. The book is not a lofty treatise musing on the principles and philosophy of global health and human rights – it aims to capture the immense impact human rights can have on the everyday lives and health of people all over the world. Within South Africa, there has always been a strong recognition of the right to health and a tradition of underscoring the importance of a human rights-based approach to public health. Yet even in this context, the advent of the Covid-19 pandemic has raised new questions and challenges to the protection and realisation of the right to health in the context of a global public health emergency. Since December 2019, the field of public health has become mainstream and correspondingly, the awareness of the public health law and the integral relationship between health and human rights has gained greater traction among legal scholars. The fields of global health law and its domestic cousin, public health law, are not considered well-established in comparison to the centuries and millennia of tradition and scholarship behind our more established fields that form the core of an LLB curriculum. Yet, this field, which Lawrence Gostin first attempted to consolidate in his seminal work Global Health Law, has never been more important than now. With the need to respond to the Covid-19 pandemic, and the significant role played by laws and human rights in responses everywhere, global health law texts which were previously been relegated to the niche audience are now integral to the work of many lawyers globally. With this increased readership, there is a need for foundational texts to cement global health law as a legitimate field within the discipline of legal scholarship. In this new world, and new normal, Foundations could not be a more timeous contribution to provide a roadmap of the global and public health law to legal scholars. In this ambitious text, editors Gostin and Meier, provide what will likely become a handbook for young and established global health law and public health law scholars alike. Divided into four parts, Foundations seeks to traverse key prongs of the relationship between global health and human rights – beginning with principled, scholarly discussions on the right to health but moving quickly onto a more comprehensive view of the field couched in practical application to the most significant global health challenges of the last five decades.
《全球健康与人权基金会》的前言以世界卫生组织(世卫组织)总干事谭德塞·阿达诺姆·盖布雷耶苏斯(Tedros Adanom Ghebreyesus)描述人权对实现公共卫生的重要性开始。这些话奠定了基调，简洁地表达了文本的基本哲学。这本书不是关于全球健康和人权的原则和哲学的崇高论述，而是旨在捕捉人权对世界各地人民的日常生活和健康可能产生的巨大影响。在南非，人们一直强烈承认健康权，并有强调以基于人权的方式对待公共卫生的重要性的传统。然而，即使在这种背景下，2019冠状病毒病大流行的到来也为在全球突发公共卫生事件背景下保护和实现健康权提出了新的问题和挑战。自2019年12月以来，公共卫生领域成为主流，相应的，公共卫生法以及健康与人权的整体关系的意识在法律学者中得到了更大的关注。与构成法学学士课程核心的更成熟领域背后的数百年和数千年的传统和学术相比，全球卫生法及其国内同类领域——公共卫生法，被认为并不完善。然而，这一领域——劳伦斯·高斯汀(Lawrence Gostin)在其开创性著作《全球卫生法》(Global Health Law)中首次试图巩固这一领域——从未像现在这样重要。鉴于应对Covid-19大流行的必要性，以及法律和人权在世界各地的应对工作中发挥的重要作用，以前被归类为小众受众的全球卫生法案文现在已成为全球许多律师工作不可或缺的一部分。随着读者群的增加，有必要编写基础文本，以巩固全球卫生法作为法律学术学科内的一个合法领域。在这个新世界和新常态中，基金会为法律学者提供全球和公共卫生法的路线图作出了非常及时的贡献。在这个雄心勃勃的文本中，编辑Gostin和Meier提供了可能成为年轻和成熟的全球卫生法和公共卫生法学者的手册。《基金会》分为四个部分，力图探讨全球健康与人权之间关系的关键方面——从关于健康权的原则性学术讨论开始，然后迅速转向对这一领域更全面的看法，并将其实际应用于过去五十年来最重大的全球健康挑战。
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Pub Date : 2021-01-02DOI: 10.1080/02587203.2021.2000887
Georgina Jephson
Abstract Class actions advance both access to justice and judicial economy. In South Africa, class action law is developing incrementally in the courts. One aspect of class action procedure that is settled is that prior certification is a requirement. Prior certification requires class representatives to satisfy a court that the use of the class action mechanism is an appropriate way of adjudicating the class members’ claims. As such, prior certification is a preliminary procedural hurdle to be cleared before the class action can be instituted. The primary rationale for prior certification is that it prevents the inappropriate use or abuse of the class action mechanism. However, by postponing the institution of the class action, prior certification delays the determination of the class action claims, thereby limiting access to justice. This article analyses the adoption of prior certification in class action litigation procedure. It interrogates whether the way in which prior certification limits access to justice is reasonable and justifiable. It argues that the temporary limit that prior certification places on access to justice is a reasonable and justifiable limitation because it balances the protection of access to justice with the need to prevent misuse of the class action mechanism.
{"title":"Does prior certification advance access to justice?","authors":"Georgina Jephson","doi":"10.1080/02587203.2021.2000887","DOIUrl":"https://doi.org/10.1080/02587203.2021.2000887","url":null,"abstract":"Abstract Class actions advance both access to justice and judicial economy. In South Africa, class action law is developing incrementally in the courts. One aspect of class action procedure that is settled is that prior certification is a requirement. Prior certification requires class representatives to satisfy a court that the use of the class action mechanism is an appropriate way of adjudicating the class members’ claims. As such, prior certification is a preliminary procedural hurdle to be cleared before the class action can be instituted. The primary rationale for prior certification is that it prevents the inappropriate use or abuse of the class action mechanism. However, by postponing the institution of the class action, prior certification delays the determination of the class action claims, thereby limiting access to justice. This article analyses the adoption of prior certification in class action litigation procedure. It interrogates whether the way in which prior certification limits access to justice is reasonable and justifiable. It argues that the temporary limit that prior certification places on access to justice is a reasonable and justifiable limitation because it balances the protection of access to justice with the need to prevent misuse of the class action mechanism.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"83 - 101"},"PeriodicalIF":0.9,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47508306","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 : 2021-01-02DOI: 10.1080/02587203.2021.2000111
Jeff Handmaker
This special issue on class action litigation in the South African Journal on Human Rights was initiated by a call for papers that was drafted by South African lawyer Carina du Toit. It was indeed she who had originally conceived of this idea for the special issue, identified potential authors who were working in this field and co-chaired (with me) an authors’ colloquium webinar that the South African Journal on Human Rights organised on 26 June 2020. With this substantial basis, I was happy to take the idea forward through to publication on behalf of the Journal. The call for papers that was circulated in October 2019 triggered a lot of interest from academics and practitioners alike. However, like so many other initiatives, the global Covid-19 pandemic caught us entirely off-guard, and between lockdowns, home schooling, rising infection rates and hospital admissions, campus closures and other unprecedented disruptions, we were forced to improvise, and to sharpen our IT skills. What would have been an in-person colloquium in Johannesburg became an online webinar through Zoom. Rather than meet and discuss in person, we resorted to email, Skype, Teams, Zoom and other forms of internet-based communication. But we managed in the end to produce a special issue that covers the topic well, consisting of three case notes and four full-length articles from top scholars and experienced practitioners. Human rights litigation has been a recurring topic in the Journal since we were first established as the Lawyers for Human Rights Bulletin in the late-1970s, which was renamed the South African Journal on Human Rights in 1985. Since 1994, public interest litigation has received increasing attention. A 2011 special issue on that topic – coedited by Jackie Dugard, Jonathan Klaaren and myself – also touched on the challenging prospects of bringing class actions, namely: Stuart Wilson’s contribution on housing rights. However, specific and comprehensive attention to class actions, as a particular form of legal mobilisation, has received less attention. This is of little surprise since, as Cheryl Loots observed already in 1994, the opportunities for standing to bring such cases in South African courts have traditionally been restricted, especially prior to the
《南非人权杂志》这期关于集体诉讼的特刊是由南非律师Carina du Toit起草的论文征集活动发起的。事实上，正是她最初为特刊构思了这个想法，确定了在这一领域工作的潜在作者，并与我共同主持了《南非人权杂志》于2020年6月26日组织的作者座谈会网络研讨会。有了这个实质性的基础，我很高兴代表《华尔街日报》将这个想法付诸出版。2019年10月发布的论文征集呼吁引发了学术界和从业者的极大兴趣。然而，与许多其他举措一样，全球新冠肺炎疫情让我们完全措手不及，在封锁、家庭教育、感染率上升和住院、校园关闭和其他前所未有的混乱之间，我们被迫即兴发挥，提高我们的IT技能。原本在约翰内斯堡举行的面对面座谈会通过Zoom变成了在线网络研讨会。我们没有亲自会面和讨论，而是通过电子邮件、Skype、Teams、Zoom和其他形式的互联网交流。但我们最终还是制作了一期涵盖该主题的特刊，其中包括三篇案例笔记和四篇来自顶尖学者和经验丰富的从业者的长篇文章。自20世纪70年代末我们首次成立《人权律师公报》以来，人权诉讼一直是《南非人权杂志》反复出现的话题，该报于1985年更名为《南非人权期刊》。1994年以来，公益诉讼越来越受到关注。2011年的一期关于这一主题的特刊——由杰基·杜加德、乔纳森·克拉伦和我共同编辑——也谈到了提起集体诉讼的挑战性前景，即斯图尔特·威尔逊对住房权的贡献。然而，对集体诉讼的具体和全面关注，作为一种特殊的法律动员形式，却很少受到关注。这并不奇怪，因为正如Cheryl Loots在1994年所观察到的那样，在南非法院提起此类案件的机会传统上受到限制，尤其是在
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Pub Date : 2021-01-02DOI: 10.1080/02587203.2021.1963834
Jason Brickhill
Abstract Silicosis is an incurable lung disease caused by the inhalation of silica dust. Gold is usually found alongside silica, so goldminers are especially at risk of silicosis. Studies show that up to a quarter of career mineworkers in South Africa have contracted it. As one expert witness in the litigation put it, a ‘river of disease’ was flowing through the mines. The river metaphor also captures the meandering course of the silicosis litigation, which spanned more than a decade, its course unpredictable, joined by new tributaries and splitting into new streams of litigation along the way. It included test cases, arbitration, massed claims and eventually, a class action. The silicosis class action in South Africa not only provided the first real test for the new court-made rules governing class actions, but is one of the largest and most complex multi-class, multi-defendant, dispersed incident class actions the world has seen. The class action succeeded, culminating in a R5 billion settlement. It also provides a strong basis to consider how best class action law should develop in South Africa. This article engages with the test for certification, representation in class actions, settlements and legal fees and costs. It argues that the constitutional commitment to access to justice undergirds class actions and must inform the development of these rules. The profit incentive presented by class actions presents risks of abuse that must be addressed. The Constitution, and not the market, should determine which poor litigants get legal representation to bring class actions, and how class actions work.
{"title":"A river of disease: Silicosis and the future of class actions in South Africa","authors":"Jason Brickhill","doi":"10.1080/02587203.2021.1963834","DOIUrl":"https://doi.org/10.1080/02587203.2021.1963834","url":null,"abstract":"Abstract Silicosis is an incurable lung disease caused by the inhalation of silica dust. Gold is usually found alongside silica, so goldminers are especially at risk of silicosis. Studies show that up to a quarter of career mineworkers in South Africa have contracted it. As one expert witness in the litigation put it, a ‘river of disease’ was flowing through the mines. The river metaphor also captures the meandering course of the silicosis litigation, which spanned more than a decade, its course unpredictable, joined by new tributaries and splitting into new streams of litigation along the way. It included test cases, arbitration, massed claims and eventually, a class action. The silicosis class action in South Africa not only provided the first real test for the new court-made rules governing class actions, but is one of the largest and most complex multi-class, multi-defendant, dispersed incident class actions the world has seen. The class action succeeded, culminating in a R5 billion settlement. It also provides a strong basis to consider how best class action law should develop in South Africa. This article engages with the test for certification, representation in class actions, settlements and legal fees and costs. It argues that the constitutional commitment to access to justice undergirds class actions and must inform the development of these rules. The profit incentive presented by class actions presents risks of abuse that must be addressed. The Constitution, and not the market, should determine which poor litigants get legal representation to bring class actions, and how class actions work.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"37 1","pages":"31 - 58"},"PeriodicalIF":0.9,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45509648","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 : 2021-01-02DOI: 10.1080/02587203.2021.2000886
S. Abdool Karim, P. Kruger
Abstract The right to food in South African jurisprudence has remained underdeveloped and the right to food is often vindicated through other means and the protection of other, related rights. The modern development of class actions in South Africa is implicitly intertwined with the infringement of citizens’ right to access sufficient food. The first class actions initiated in South Africa involved the food industry and affordability of the most staple food, bread. Since then, a more recent class action has been filed against a food manufacturer for selling unsafe food to consumers. In addition to developing the jurisprudence on class actions in South Africa, previous and ongoing class actions involving food companies offer an opportunity to indirectly vindicate South Africans’ rights to access to sufficient food under s 27(1)(b) of the Constitution of the Republic of South Africa, 1996. This paper will examine the effectiveness of and manner in which class actions can be utilised to protect the right to food. We will analyse the manner in which the right to food has functioned in existing class actions relating to national legislation, like the Consumer Protection Act and the Competition Act and what future there is for the right in food-based class actions.
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Pub Date : 2021-01-02DOI: 10.1080/02587203.2021.1990119
Theo Broodryk
Nkala v Harmony Gold Mining Company Ltd (Treatment Action Campaign NPC and another as amici curiae) is the first South African mass personal injury class action. The latter is worth noting because a mass personal injury class action presents unique challenges compared to other types of class actions, such as consumer class proceedings. In a personal injury class action, the extent of the injuries and the quantum of damages suffered by each member are individual issues. One of the challenges present in mass personal injury class actions is that, if the class consists of a large number of victims and each victim is required to present oral evidence to prove his or her damages individually, the trial may take years to conclude, and some claimants could possibly pass away by the time the court delivers judgment. It would overburden proceedings and cause undue delay. These are some of the issues which, as will appear from this note, were influential in the court’s questionable approach to assessing appropriateness of class proceedings in Nkala. In Nkala, Bongani Nkala and 55 other individuals sought certification of a dispersed incident mass personal injury class action on behalf of mineworkers for damages arising from silicosis contracted by mineworkers through their employment on the mines. The South Gauteng High Court granted certification of the class action. This note considers the approach of the Court in Nkala in dealing with the issue of the appropriateness of class
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Pub Date : 2020-10-01DOI: 10.1080/02587203.2020.1956084
Sanele Sibanda
This special issue of the South African Journal on Human Rights arises from a general call for papers that was issued in October 2019. The special issue has come to fruition in circumstances that none of us could ever have imagined at the time of its conceptualisation. No one imagined that within six months from that date a health pandemic would sweep across the world, plunging humanity into crisis and bringing life to a virtual standstill while simultaneously redefining the norms of human movement, interaction and exchange. Indeed, the impact of Covid-19 and the regulations taken in order to protect public health were felt everywhere, including our editorial processes. While the pandemic brought death, despair and upheaval and disrupted the order of social, political, cultural, economic and religious life as we know it, questions around the involvement of the courts and the judiciary in the nation’s political contestations became more pronounced. Rather than abating, in line with the slowness induced by the pandemic, these political contestations gathered greater momentum and urgency. For example, as I write this introduction, the number of politically charged matters being litigated or headed towards litigation continues to accumulate, further heightening the interand intra-branch tensions between constitutional structures. At the time the special issue was being conceptualised, our collective frame of reference was informed by the Jacob Zuma presidency and characterised by an increase in civil society and political actors involved in disputes turning to the courts to resolve what were clearly political controversies. Little has changed in that the accumulation of politically charged cases involving former president Zuma, persons thought to be associated with him and, more generally, the governing African National Congress (ANC) continues. The pinnacle point in this respect, at the time of writing, is the Constitutional Court case emanating from the Zondo Commission on State Capture in which the former president has been found guilty of the crime of contempt of court and sentenced to an effective 15-month term of imprisonment. There are, of course, other matters not involving Zuma that have been equally mired in political controversy. Profound questions have been raised concerning the separation of powers doctrine and where the lines should be drawn under our system of constitutional
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