Pub Date : 2020-07-02DOI: 10.1080/02587203.2020.1824656
{"title":"Best Article by an Emerging Scholar Award 2019","authors":"","doi":"10.1080/02587203.2020.1824656","DOIUrl":"https://doi.org/10.1080/02587203.2020.1824656","url":null,"abstract":"","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"283 - 285"},"PeriodicalIF":0.9,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2020.1824656","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48783555","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 : 2020-07-02DOI: 10.1080/02587203.2020.1865113
Heleen Lauwereys
Abstract In 2007, the Constitutional Court ruled in S v M that the best interests of the child should be taken into consideration when sentencing primary caregivers. This judgment is in line with s 28 of the Constitution of the Republic of South Africa, 1996, art 3(1) of the UN Convention on the Rights of the Child, and art 30(1) of the African Charter on the Rights and Welfare of the Child. The guidelines developed by the Constitutional Court are considered to be a ‘best practice’ relevant to countries introducing or debating upon a similar obligation within their domestic jurisdiction. Through a systematic content analysis of sentencing judgments concerning (potential) primary caregivers, the interpretation and application of the child’s best interests in this context are examined. The analysis shows that different interpretations and approaches concern different aspects of the guidelines, including their material scope, the elements to be taken into consideration, the alternative care for the child during the imprisonment of the primary caregiver, and how judges inform themselves on this matter in individual cases. The article concludes with recommendations to address these difficulties and inconsistencies.
{"title":"Sentencing primary caregivers in South Africa: the role of the child’s best interests","authors":"Heleen Lauwereys","doi":"10.1080/02587203.2020.1865113","DOIUrl":"https://doi.org/10.1080/02587203.2020.1865113","url":null,"abstract":"Abstract In 2007, the Constitutional Court ruled in S v M that the best interests of the child should be taken into consideration when sentencing primary caregivers. This judgment is in line with s 28 of the Constitution of the Republic of South Africa, 1996, art 3(1) of the UN Convention on the Rights of the Child, and art 30(1) of the African Charter on the Rights and Welfare of the Child. The guidelines developed by the Constitutional Court are considered to be a ‘best practice’ relevant to countries introducing or debating upon a similar obligation within their domestic jurisdiction. Through a systematic content analysis of sentencing judgments concerning (potential) primary caregivers, the interpretation and application of the child’s best interests in this context are examined. The analysis shows that different interpretations and approaches concern different aspects of the guidelines, including their material scope, the elements to be taken into consideration, the alternative care for the child during the imprisonment of the primary caregiver, and how judges inform themselves on this matter in individual cases. The article concludes with recommendations to address these difficulties and inconsistencies.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"154 - 177"},"PeriodicalIF":0.9,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2020.1865113","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47815636","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 : 2020-07-02DOI: 10.1080/02587203.2020.1867484
Tom Lowenthal
Abstract The Constitutional Court’s decision in AB v Pridwin Preparatory School is a welcome recognition of the obligations which independent schools owe to their learners under the Constitution of the Republic of South Africa, 1996. However, the decision creates (or at least fails to resolve) a number of uncertainties in the application of s 8(2) of the Constitution. In particular, it leaves vague what the test for duty-bearing under that provision is; it recentres but (further) obscures the distinction between positive and negative obligations; it raises questions about the role of s 8(3) and how private interferences with constitutional rights are to be justified; and it leaves the practical status of the decision in Barkhuizen v Napier unclear.
{"title":"AB v Pridwin Preparatory School: progress and problems in horizontal human rights law","authors":"Tom Lowenthal","doi":"10.1080/02587203.2020.1867484","DOIUrl":"https://doi.org/10.1080/02587203.2020.1867484","url":null,"abstract":"Abstract The Constitutional Court’s decision in AB v Pridwin Preparatory School is a welcome recognition of the obligations which independent schools owe to their learners under the Constitution of the Republic of South Africa, 1996. However, the decision creates (or at least fails to resolve) a number of uncertainties in the application of s 8(2) of the Constitution. In particular, it leaves vague what the test for duty-bearing under that provision is; it recentres but (further) obscures the distinction between positive and negative obligations; it raises questions about the role of s 8(3) and how private interferences with constitutional rights are to be justified; and it leaves the practical status of the decision in Barkhuizen v Napier unclear.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"261 - 274"},"PeriodicalIF":0.9,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2020.1867484","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45070073","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 : 2020-07-02DOI: 10.1080/02587203.2020.1859338
Delano Cole Van der Linde
Abstract The essence of the principle of legality is to constrain governmental, legislative and judicial power, and protect citizens from the arbitrary exercise of these powers. This is especially true in the context of the drafting and interpretation of criminal law. Criminal laws in particular must be drafted in a reasonably clear fashion to provide citizens with fair warning of criminal sanction. The courts must also interpret these laws strictly, so that citizens are not punished for conduct that did not fall within the scope of either a common law or statutory crime. This article examines whether certain definitions employed in the Prevention of Organised Crime Act 121 of 1998 do not offend the principle of legality as it employs dubiously wide definitions. Although widening the criminal net for, in particular, criminal gang activities, these definitions arguably do not provide fair warning to citizens to avoid criminal sanction and may also be at risk of overbroad judicial interpretation. The analysis will further take place in light of comparable foreign legislation and decisions.
{"title":"Considering the constitutionality of South Africa’s anti-gang legislation in light of the principle of legality","authors":"Delano Cole Van der Linde","doi":"10.1080/02587203.2020.1859338","DOIUrl":"https://doi.org/10.1080/02587203.2020.1859338","url":null,"abstract":"Abstract The essence of the principle of legality is to constrain governmental, legislative and judicial power, and protect citizens from the arbitrary exercise of these powers. This is especially true in the context of the drafting and interpretation of criminal law. Criminal laws in particular must be drafted in a reasonably clear fashion to provide citizens with fair warning of criminal sanction. The courts must also interpret these laws strictly, so that citizens are not punished for conduct that did not fall within the scope of either a common law or statutory crime. This article examines whether certain definitions employed in the Prevention of Organised Crime Act 121 of 1998 do not offend the principle of legality as it employs dubiously wide definitions. Although widening the criminal net for, in particular, criminal gang activities, these definitions arguably do not provide fair warning to citizens to avoid criminal sanction and may also be at risk of overbroad judicial interpretation. The analysis will further take place in light of comparable foreign legislation and decisions.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"221 - 241"},"PeriodicalIF":0.9,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2020.1859338","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43101354","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 : 2020-07-02DOI: 10.1080/02587203.2020.1810113
C. Fritz, R. Brits
Abstract The Davis Tax Committee declared that the ‘pay now, argue later’ approach in the Tax Administration Act 28 of 2011, which applies when a taxpayer disputes an assessed tax liability, infringes on a person’s right not to be deprived of property arbitrarily as entrenched in s 25(1) of the Constitution of the Republic of South Africa, 1996 (the property clause). In this article we set out to analyse whether this is indeed the case by first outlining the legislative provisions pertaining to the ‘pay now, argue later’ approach and the jurisprudence surrounding the right not to be deprived of property arbitrarily. Thereafter, we evaluate whether the ‘pay now, argue later’ approach complies with the requirements for a valid deprivation of property and conclude that this approach does not infringe upon the rights of taxpayers in terms of the property clause. We show that the statutory provisions surrounding the ‘pay now, argue later’ approach impose a deprivation of property, but that the deprivation is neither procedurally nor substantively arbitrary.
{"title":"Does the ‘pay now, argue later’ approach in the Tax Administration Act 28 of 2011 infringe on a taxpayer’s right not to be deprived of property arbitrarily?","authors":"C. Fritz, R. Brits","doi":"10.1080/02587203.2020.1810113","DOIUrl":"https://doi.org/10.1080/02587203.2020.1810113","url":null,"abstract":"Abstract The Davis Tax Committee declared that the ‘pay now, argue later’ approach in the Tax Administration Act 28 of 2011, which applies when a taxpayer disputes an assessed tax liability, infringes on a person’s right not to be deprived of property arbitrarily as entrenched in s 25(1) of the Constitution of the Republic of South Africa, 1996 (the property clause). In this article we set out to analyse whether this is indeed the case by first outlining the legislative provisions pertaining to the ‘pay now, argue later’ approach and the jurisprudence surrounding the right not to be deprived of property arbitrarily. Thereafter, we evaluate whether the ‘pay now, argue later’ approach complies with the requirements for a valid deprivation of property and conclude that this approach does not infringe upon the rights of taxpayers in terms of the property clause. We show that the statutory provisions surrounding the ‘pay now, argue later’ approach impose a deprivation of property, but that the deprivation is neither procedurally nor substantively arbitrary.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"200 - 220"},"PeriodicalIF":0.9,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2020.1810113","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46094752","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 : 2020-01-02DOI: 10.1080/02587203.2020.1786909
Mutondi Mulaudzi
‘We reject attempts to prescribe to new rights that are contrary to our norms, values, traditions and beliefs. We are not gay.’1 Every chapter in the book begins with a quote that highlights its ma...
{"title":"What is Africanness? Contesting nativism in race, culture and sexualities","authors":"Mutondi Mulaudzi","doi":"10.1080/02587203.2020.1786909","DOIUrl":"https://doi.org/10.1080/02587203.2020.1786909","url":null,"abstract":"‘We reject attempts to prescribe to new rights that are contrary to our norms, values, traditions and beliefs. We are not gay.’1 Every chapter in the book begins with a quote that highlights its ma...","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"127 - 129"},"PeriodicalIF":0.9,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2020.1786909","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47126553","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 : 2020-01-02DOI: 10.1080/02587203.2020.1775495
Rongedzayi Fambasayi, Admark Moyo
Abstract This article explores the interaction between the best interests of the child and the child’s right not to be detained except as a measure of last resort. It examines the normative framework governing the scope and functions of the best interests of the child under international law and the nexus between the concept of the best interests of the child and the right not to be detained except as a measure of last resort. Using legal developments in the juvenile justice systems in South Africa, Kenya and Zimbabwe, the article demonstrates that all these countries have protected both the best interests of the child and detention as a measure of last resort in their national constitutions and, in some instances, legislation. Judges in the three jurisdictions are generally sensitive to the child rights concerned, although South African judges appear to be a step ahead of those in the other two countries. Kenyan courts appear to be following the South African example and have outlawed certain practices. The approach of Zimbabwean judges is not uniform. It is argued that Zimbabwean courts should learn from South Africa and Kenya to ensure the promotion of the best interests of the child offender and protection from arbitrary detention.
{"title":"The best interests of the child offender in the context of detention as a measure of last resort: A comparative analysis of legal developments in South Africa, Kenya and Zimbabwe","authors":"Rongedzayi Fambasayi, Admark Moyo","doi":"10.1080/02587203.2020.1775495","DOIUrl":"https://doi.org/10.1080/02587203.2020.1775495","url":null,"abstract":"Abstract This article explores the interaction between the best interests of the child and the child’s right not to be detained except as a measure of last resort. It examines the normative framework governing the scope and functions of the best interests of the child under international law and the nexus between the concept of the best interests of the child and the right not to be detained except as a measure of last resort. Using legal developments in the juvenile justice systems in South Africa, Kenya and Zimbabwe, the article demonstrates that all these countries have protected both the best interests of the child and detention as a measure of last resort in their national constitutions and, in some instances, legislation. Judges in the three jurisdictions are generally sensitive to the child rights concerned, although South African judges appear to be a step ahead of those in the other two countries. Kenyan courts appear to be following the South African example and have outlawed certain practices. The approach of Zimbabwean judges is not uniform. It is argued that Zimbabwean courts should learn from South Africa and Kenya to ensure the promotion of the best interests of the child offender and protection from arbitrary detention.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"25 - 48"},"PeriodicalIF":0.9,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2020.1775495","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41846358","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 : 2020-01-02DOI: 10.1080/02587203.2020.1784040
Ndivhuwo Ishmel Moleya
Abstract This article revisits the Jurisdiction of the Constitutional Court on constitutional matters in light of Jacobs v S. It particularly critiques the constitutional jurisdictional principle that the mere application or misapplication of a common law principle does not engage the jurisdiction of the Court as that does not raise a constitutional issue. It argues against the blanket exclusion of such matters from the jurisdictional ambit of the Court.
{"title":"Revisiting the jurisdiction of the Constitutional Court on constitutional matters in light of Jacobs v S","authors":"Ndivhuwo Ishmel Moleya","doi":"10.1080/02587203.2020.1784040","DOIUrl":"https://doi.org/10.1080/02587203.2020.1784040","url":null,"abstract":"Abstract This article revisits the Jurisdiction of the Constitutional Court on constitutional matters in light of Jacobs v S. It particularly critiques the constitutional jurisdictional principle that the mere application or misapplication of a common law principle does not engage the jurisdiction of the Court as that does not raise a constitutional issue. It argues against the blanket exclusion of such matters from the jurisdictional ambit of the Court.","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"111 - 93"},"PeriodicalIF":0.9,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2020.1784040","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42711947","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 : 2020-01-02DOI: 10.1080/02587203.2020.1773308
Elsabé van der Sijde
The scope and meaning of ‘secure tenure’ were central to two prominent Constitutional Court cases in 2017. The first case, Daniels v Scribante, is widely regarded as a progressive judgement that es...
{"title":"Tenure security for ESTA occupiers: Building on the obiter remarks in Baron v Claytile Limited","authors":"Elsabé van der Sijde","doi":"10.1080/02587203.2020.1773308","DOIUrl":"https://doi.org/10.1080/02587203.2020.1773308","url":null,"abstract":"The scope and meaning of ‘secure tenure’ were central to two prominent Constitutional Court cases in 2017. The first case, Daniels v Scribante, is widely regarded as a progressive judgement that es...","PeriodicalId":44989,"journal":{"name":"South African Journal on Human Rights","volume":"36 1","pages":"74-92"},"PeriodicalIF":0.9,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/02587203.2020.1773308","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59284054","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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