Restitutionary Measures Properly Understood and the Extension of the Quota Ban – Locating SARIPA in the s 9(2) Van Heerden Framework

by | Sep 23, 2019 | ACTA, ACTA 2017

Restitutionary Measures Properly Understood and the Extension of the Quota Ban – Locating SARIPA in the s 9(2) Van Heerden Framework

Authors Lauren Kohn, Raisa Cachalia

ISSN: 1996-2088
Affiliations: Senior Lecturer, Department of Public Law, University of Cape Town; Attorney of the High Court of South Africa; Legal Consultant at Caveat Legal (Pty) Ltd; Researcher at SAIFAC (South African Institute for Advanced Constitutional, Public, Human Rights and International Law), University of Johannesburg; Attorney of the High Court of South Africa; Legal Consultant at Caveat Legal (Pty) Ltd
Source: Acta Juridica, 2017, p. 146 – 178

Abstract

On 2 December 2016, the Supreme Court of Appeal (‘SCA’) handed down judgment in the matter of Minister of Justice and Constitutional Development v South African Restructuring and Insolvency Practitioners Association (‘SARIPA’). This is a significant judgment on the test for assessing the constitutionality of a so-called ‘affirmative action’, or restitutionary, measure within the meaning of section 9(2) of the Constitution. SARIPA invites us to revisit the original formulation of this test as propounded by Moseneke J in the seminal judgment of Minister of Justice v Van Heerden. The policy in issue in SARIPA embodied a quintessential quota system aimed at effecting transformation of the insolvency profession. Both the High Court and SCA found this mechanical, alphabetised roster system for the appointment of insolvency practitioners to be excessively rigid for want of any general discretion to depart from the scheme. For this reason – on the strength of earlier dicta in South African Police Service v Solidarity obo Barnard and then Solidarity v Department of Correctional Services – it was held to fall foul of the section 9(2) test. Interestingly, these earlier cases were decided in the context of the Employment Equity Act, 1998 (‘EEA’), which expressly prohibits quotas. The decision in SARIPA to extend the quota ban to circumstances outside the purview of the EEA presents a noteworthy development in our law and ought to be welcomed for its congruence with the first principles of the Van Heerden test which are grounded in a purposive appreciation of a restitutionary measure as a flexible and context-specific tool for the achievement of substantive equality. Unfortunately, the laudable outcome in SARIPA was reached without clear and rigorous judicial justification. In this article we thus analyse and locate SARIPA within the s 9(2) Van Heerden framework for assessing the constitutionality of a redress measure, in order to propound a more compelling justification for the SCA’s conclusion on the constitutional repugnancy of quota systems outside the EEA context.

Reimagining Power Relations: Hierarchies of Disadvantage and Affirmative Action

by | Sep 23, 2019 | ACTA, ACTA 2017

Reimagining Power Relations: Hierarchies of Disadvantage and Affirmative Action

Authors Sandra Fredman

ISSN: 1996-2088
Affiliations: Professor of the Laws of British Commonwealth and the USA, Oxford University; Director of the Oxford Human Rights Hub; Fellow of Pembroke College, Oxford
Source: Acta Juridica, 2017, p. 124 – 145

Abstract

The South African Constitution has embraced affirmative action as an aspect of substantive equality from its inception. Nevertheless, it remains a challenging concept. Because affirmative action measures tend to redistribute existing jobs or benefits, rather than widen the pool of benefits, they inevitably create competition between individuals. When legal challenges of affirmative action measures come from privileged applicants, the rationale for preferring members of disadvantaged groups is easy to derive from the aims of substantive equality. However, recent cases have brought to the fore the potential of competition between disadvantaged individuals. Section 9(2), in permitting measures ‘designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination’ does not give a metric for distinguishing between degrees of disadvantage, or different kinds of disadvantage. Affirmative action expressly recognises the link between status, such as gender or race, and class, in the sense of socio-economic disadvantage. One of its aims is therefore clearly redistributive. However, this paper argues that status should not be regarded as simply a proxy for socio-economic disadvantage. In other words, race, gender and disability cannot simply be collapsed into class. It is argued in this paper that there are also other core mutually reinforcing aims of substantive equality to complement the redistributive element: to redress stigma, stereotyping, prejudice and violence; to facilitate voice and participation; and to accommodate difference and transform underlying structures. Affirmative action measures need to be calibrated to address all of these dimensions of substantive equality simultaneously. Stigma and ongoing racial prejudice need to be addressed, but at the same time, attention must be paid to the ongoing class divisions within status groups. Most importantly, it is necessary to examine the extent to which affirmative action can genuinely bring about structural change, rather than simply changing the racial or gender composition of existing structures. By applying a more nuanced analytic framework to affirmative action cases, it is possible to come to more principled, transparent and appropriate ways of addressing different degrees and types of disadvantage.

The Constitutional Court of Justice Moseneke and the Decolonisation of Law in South Africa: Revisiting the Relationship Between Indigenous Law and Common Law

by | Sep 23, 2019 | ACTA, ACTA 2017

The Constitutional Court of Justice Moseneke and the Decolonisation of Law in South Africa: Revisiting the Relationship Between Indigenous Law and Common Law

Authors Chuma Himonga

ISSN: 1996-2088
Affiliations: Professor of Law and DST/NRF Chair in Customary Law, Indigenous Values and Human Rights at the University of Cape Town
Source: Acta Juridica, 2017, p. 101 – 123

Abstract

This paper is written to honour Justice Dikgang Moseneke for his roles in recent South African legal history – as a member of the technical committee that drafted the interim Constitution of the Republic of South Africa in 1993, a member of the Constitutional Court from 2002 to May 2016 and as Deputy Chief Justice of South Africa, among others. The paper focuses on the decisions of the Constitutional Court during his time in this court concerning the relationship between indigenous law and common law in a broad sense (ie South African law of European origin, including Roman-Dutch law and legislation). Taking constitutional legal pluralism as a point of departure, the paper examines the equal treatment of indigenous law and common law in state law and institutions against the backdrop of the demands for the decolonisation of the law spurred on by the student protests in South Africa in 2015 and 2016. The paper argues that the Constitutional Court has endorsed the constitutionally guaranteed legal pluralism that recognises the equality of indigenous law and common law, and it has thereby contributed to the decolonisation of the law. However, some of its pronouncements have served to cast a shadow of ambiguity and contradiction rather than shedding light on the relationship between the two components of South African law under consideration. This shadow requires revisiting in the face of demands for decolonisation. The paper also argues that the court’s shadow has placed indigenous law in a vulnerable position, open to being obliterated by the Constitutional Court itself and by the other courts. This means that the dominance of common law in the legal system – as was the case during the colonial and apartheid eras – may continue to characterise the national legal system. Thus, the issue of the court’s shadow is not merely academic, but has broader implications for the decolonisation of law.

Deputy Chief Justice Moseneke’s Approach to the Separation of Powers in South Africa

by | Sep 23, 2019 | ACTA, ACTA 2017

Deputy Chief Justice Moseneke’s Approach to the Separation of Powers in South Africa

Authors Mtendeweka Mhango, Ntombizozuko Dyani-Mhango

ISSN: 1996-2088
Affiliations: Adjunct Professor, Nelson Mandela School of Law, University of Fort Hare; Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: Acta Juridica, 2017, p. 75 – 98

Abstract

This paper is premised on the proposition that there is a need for the development of a separation of principle, which incorporates a lucid political question doctrine that will assist the country to dispose of political questions that come to the courts for adjudication. In this regard, we address two things: firstly, we examine Moseneke DCJ’s jurisprudence on separation of powers in two specific and related cases in International Trade Administration Commission v SCAW South Africa, and National Treasury v Opposition to Urban Tolling Alliance, where he penned majority opinions. These cases are related because Moseneke DCJ builds on the theme of the separation of powers that he pronounced in International Trade Administration Commission v SCAW South Africa, when he resolved the issue in National Treasury v Opposition to Urban Tolling Alliance. In examining this jurisprudence, we are critical of Moseneke DCJ’s failure to contribute to the development of a coherent political question doctrine for South Africa, which defines the scope and contours for judicial authority, and for being unable to provide cogent reasons in some of his academic commentaries against the application of such principle of restraint.

Law as Justification: Glenister, Separation of Powers and the Rule of Law

by | Sep 23, 2019 | ACTA, ACTA 2017

Law as Justification: Glenister, Separation of Powers and the Rule of Law

Authors Cathleen Powell

ISSN: 1996-2088
Affiliations: Associate Professor, Department of Public Law, UCT Law Faculty
Source: Acta Juridica, 2017, p. 55 – 74

Abstract

This article analyses the majority and minority judgments in Glenister through the lens of the doctrine of separation of powers. This is not an aspect that the majority judgment addresses explicitly, and, as a result, the minority’s objection that the majority violated this doctrine, acting outside of its powers and intruding on the exclusively ‘political’ domain of the other two branches, appears to be unanswered. Drawing on the legal philosophy of Lon L. Fuller, this article explores the idea that the rule of law requires an ongoing dialogue between all branches of government, in which all branches justify their exercise of power under law. Such a conception of the rule of law requires a more fluid, porous relationship between the branches, and does not admit of exclusive domains for either law or politics. The majority and minority judgments in Glenister are discussed as examples of the rule-of-law based and traditional conceptions of the doctrine of separation of powers respectively. Understood in terms of Fuller’s rule of law theory, the majority judgment in Glenister did not violate the doctrine of separation of powers, but instead helped to uphold a constitutionally functional relationship between all three branches of government.

From Parliamentary to Judicial Supremacy: Reflections in Honour of the Constitutionalism of Justice Moseneke

by | Sep 14, 2019 | ACTA, ACTA 2017

From Parliamentary to Judicial Supremacy: Reflections in Honour of the Constitutionalism of Justice Moseneke

Authors Peter G Danchin

ISSN: 1996-2088
Affiliations: Professor of Law and Co-director of the International and Comparative Law Program, University of Maryland School of Law;AW Mellon Visiting Fellow, University of Cape Town, 2013–14
Source: Acta Juridica, 2017, p. 29 – 54

Abstract

Justice Moseneke has presciently identified two interrelated dilemmas at the heart of South Africa’s project of transformative constitutionalism: one concerning constitutional authority following the historic rejection of parliamentary supremacy; and the other concerning constitutional normativity following the adoption in 1996 of a comprehensive Bill of Rights. This essay advances two key arguments: First, that the rejection of parliamentary supremacy has conventionally been understood in terms of a false opposition between ‘parliamentary’ and ‘constitutional’ supremacy. And second, that proponents of strong judicial review have paid insufficient attention to three core dangers of judicial supremacy: the displacement of self-government, the reproduction of the problem of sovereignty and the usurpation by the judiciary of the role of pouvoir constituent. This striking reversal in conceptions of normativity and authority rests on a distinctive constitutional account of popular sovereignty under which the will of the People is the source of normativity while the courts, as adjudicators of reason, are the highest legal authority. The paradox of this constitutional logic is that in order to justify the anti-democratic consequences of strong judicial review, rights-based reasoning will increasingly need to be justified in terms of the will of the People with attendant gravitational consequences for theories of adjudication. To achieve Justice Moseneke’s call for an equitable balance between democratic will and constitutional supremacy – and thereby maintain a robust rights-based constitutionalism – South African judges and legal scholars will need to grapple more squarely with the twin dangers of judicial supremacy on the one hand, and the essentially contested nature of constitutional rights on the other.