ISSN: 1996-2126
Affiliations: Deputy Director, Centre for Applied Legal Studies, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 30 Issue 3, 2014, p. 543 – 554
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ISSN: 1996-2126
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 30 Issue 3, 2014, p. 526 – 542
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ISSN: 1996-2126
Affiliations: Admitted Attorney of the High Court of South Africa and Lecturer in the Department of Criminal and Procedural Law at the University of South Africa
Source: South African Journal on Human Rights, Volume 30 Issue 3, 2014, p. 508 – 525
The interplay between the constitutional right to privacy and the right to access to information constitute the parameters within which the issue of access to a child’s medical records is explored. The Children’s Act and the National Health Act provide for confidentiality pertaining to medical records and encourage participation in decisions affecting an individual’s health. The question arises whether existing legislation has been amended to support this right to confidentiality. An inquiry is done to establish if this right to confidentiality entails that the child is vested with the right to refuse access to his/her medical records? Current legislative provisions regulating this issue do not provide a clear answer. Recommendations are made for legislative amendments to bring clarity on this issue and to ensure that the child’s right to privacy in the health-care context is optimally protected.
ISSN: 1996-2126
Affiliations: Institute of Development and Labour Law, Faculty of Law, University of Cape Town; None
Source: South African Journal on Human Rights, Volume 30 Issue 3, 2014, p. 484 – 507
The workplace is an important site of struggle for equality, a struggle mediated by the provisions of the Employment Equity Act. It is within the context of this regulatory framework for both formal and substantive equality, that this article is located. Through the lens of selected case law, the article explores certain barriers to transformation imposed both by the provisions of the law and by poor judicial interpretations and implementation thereof. It identifies and analyses various legal complexities, lacunae and anomalies, as well as concerns regarding aspects of the judiciary’s approach to remedies in matters with the potential to impact on workplace transformation. The article concludes with proposals for possible future considerations by the courts, which might better promote race and gender transformation.
ISSN: 1996-2126
Affiliations: Member of the State Administrative Tribunal of Western Australia and a Visiting Fellow of the Law Faculty of the University of Western Australia
Source: South African Journal on Human Rights, Volume 30 Issue 3, 2014, p. 458 – 483
Section 235 of the Constitution acknowledges the right of cultural groups to self-determination. Giving practical effect to s 235 is a task to be undertaken by a future Parliament. This article explores the concept of non-territorial, also called cultural autonomy, whereby culture groups can establish a legal person clothed with public law powers as an organ of government to make decisions about the protection and promotion of their culture, language and customs. Several case studies where cultural autonomy is applied are referred to and recommendations are made for future consideration in South Africa.
ISSN: 1996-2126
Affiliations: Senior Researcher, Centre for Human Rights and Institute for Comparative and International Law in Africa, University of Pretoria; Associate Professor and Director, CALS, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 30 Issue 3, 2014, p. 430 – 457
In April 2013, the United States Supreme Court handed down the long-awaited judgment in Kiobel v Royal Dutch Petroleum Company, a case alleging corporate exploitation of communities in an oil-rich area of Nigeria. The case examined the Alien Tort Statute (ATS), an old statute allowing non-US citizens to bring claims in US courts for violations of the law of nations. In its judgment, the court limited the application of the ATS. This article explores the holding and reasoning of Kiobel in light of previous ATS jurisprudence, and set against the geopolitical considerations of international human rights frameworks within the US, with a particular focus on what this case means for South Africa and the region. The article queries the continuing need for countries in the Global South, including South Africa, to rely on foreign courts for corporate accountability, particularly given robust domestic legal frameworks that are under-utilised. South Africa, in particular, is best placed to begin the regional dialogue regarding law reform and corporate accountability. Local lawyers and law students must be encouraged to develop creative lawyering strategies in the area of corporate accountability. Finally, the article highlights the need to support communities and individuals most affected by corporate abuse to construct and share their narratives as part of their broader quest for meaningful political and economic justice.