Proportionality and the incommensurability challenge in the jurisprudence of the South African Constitutional Court

by | Oct 18, 2019 | SAJHR, SAJHR V30 I3

Proportionality and the incommensurability challenge in the jurisprudence of the South African Constitutional Court

Authors Niels Petersen

ISSN: 1996-2126
Affiliations: Senior Research Fellow at the Max Planck Institute for Research on Collective Goods, Bonn
Source: South African Journal on Human Rights, Volume 30 Issue 3, 2014, p. 405 – 429

Abstract

The proportionality test is a central doctrine of the individual rights jurisprudence of the South African Constitutional Court. However, one core part of the proportionality test, the balancing of competing interests, is often severely criticised because it is supposed to lack rational standards of comparison. Therefore, many critics of balancing claim that courts make policy decisions by second-guessing legislative value-decisions. This article analyses how the Constitutional Court deals with this critique. It makes a detailed analysis of the case law and finds that the court, in fact, rarely balances when it overturns a piece of legislation. When correcting the legislature, the court usually bases its judgment on other arguments, such as over-breadth, less-restrictive-means, or lack of consistency. However, the court balances when it confirms legislation, or when it corrects common law rules. In both cases, the court does not come into conflict with the political branch so that balancing does not pose any legitimacy issues. In sum, the court is rather concerned with holding the legislature accountable to take decisions that represent all groups of the society than with determining the resolution of deep value conflicts.

Current Development and Case Note: Accessibility obligations in the UN Convention on the Rights of Persons with Disabilities: Nyusti & Takάcs v Hungary

by | Oct 18, 2019 | SAJHR, SAJHR V30 I2

Current Development and Case Note: Accessibility obligations in the UN Convention on the Rights of Persons with Disabilities: Nyusti & Takάcs v Hungary

Authors Anna Lawson

ISSN: 1996-2126
Affiliations: Professor of Law, University of Leeds
Source: South African Journal on Human Rights, Volume 30 Issue 2, 2014, p. 380 – 392

Abstract

None

Current Development and Case Note: Disability and reasonable accommodation: HM v Sweden communication 3/2011 (committee on the Rights of Persons with Disabilities)

by | Oct 18, 2019 | SAJHR, SAJHR V30 I2

Current Development and Case Note: Disability and reasonable accommodation: HM v Sweden communication 3/2011 (committee on the Rights of Persons with Disabilities)

Authors Ilze Grobbelaar-du Plessis, Annelize Nienaber

ISSN: 1996-2126
Affiliations: Senior Lecturer, Department of Public Law, Faculty of Law, University of Pretoria; Associate Professor, Department of Public Law, Faculty of Law, University of Pretoria
Source: South African Journal on Human Rights, Volume 30 Issue 2, 2014, p. 366 – 379

Abstract

None

The feasibility and desirability of an African disability rights treaty: Further norm-elaboration or firmer norm-implementation?

by | Oct 18, 2019 | SAJHR, SAJHR V30 I2

The feasibility and desirability of an African disability rights treaty: Further norm-elaboration or firmer norm-implementation?

Authors Frans Viljoen, Japhet Biegon

ISSN: 1996-2126
Affiliations: Director, Centre for Human Rights, University of Pretoria; Researcher and Doctoral candidate, Centre for Human Rights, University of Pretoria
Source: South African Journal on Human Rights, Volume 30 Issue 2, 2014, p. 345 – 365

Abstract

The United Nations General Assembly in 2006 adopted the Convention on the Rights of Persons with Disabilities (CRPD), sparking debate in Africa about the desirability and feasibility of adopting an African pendant to this UN treaty. Two main rationales that support an ‘African’ treaty on the rights of persons with disabilities (PWDs) are examined in this article. The first is a process argument that contends that African participation in the elaboration of the CRPD was inadequate. The second, substantive argument suggests that the CRPD, itself, is defective, as it does not adequately address issues pertinent to and reflecting the life world of Africans with disabilities. Concluding that both rationales lack persuasive force, the authors identify two alternative courses of action. First, they argue that the CRPD should be prioritised and used to its fullest extent before attempts are made to elaborate parallel African standards to the CRPD. Among the measures to be prioritised are increased ratification, domestication, presentation of state and alternative civil society reports, and submission of individual complaints. Second, given that all African Union (AU) member states (except South Sudan) are party to the African Charter on Human and Peoples’ Rights, they contend that the existing mechanisms under the African human rights system should first be fully exploited. Although the African human rights system may not have delivered sufficient results when it comes to PWDs, it has taken some tentative steps and has further unexplored potential. There is both a need and the potential for the regional system to play its part in advancing the rights of PWDs. In particular, the African Commission on Human and Peoples’ Rights could draw inspiration from the recent adoption of its first General Comment (on art 14(1)(d) and (e) of the Women’s Protocol) to spell out the implications of the African Charter for PWDs. Formulating a new treaty is a complex and time-consuming exercise that will further delay the effective implementation of states’ obligations. However, if the option of an African-specific treaty gains wide support, it should take the form of a protocol to the African Charter, with the African Commission as monitoring mechanism, and not as a separate treaty with a self-standing treaty monitoring body.

Equal recognition and legal capacity for Persons with Disabilities: Incorporating the principle of proportionality

by | Oct 18, 2019 | SAJHR, SAJHR V30 I2

Equal recognition and legal capacity for Persons with Disabilities: Incorporating the principle of proportionality

Authors Willene Holness

ISSN: 1996-2126
Affiliations: Lecturer, University of KwaZulu-Natal, Durban
Source: South African Journal on Human Rights, Volume 30 Issue 2, 2014, p. 313 – 344

Abstract

The new approach to legal capacity legislation promoted by the Convention on the Rights of Persons with Disabilities is that all persons with disabilities have full legal capacity on an equal basis with others, but may require support in making certain decisions. Any restrictions on legal capacity must accordingly incorporate safeguards in line with art 12(4) of the Convention, including that the restriction must be tailored to the individual’s circumstances and must be proportional to his or her needs. The South African Law Reform Commission has embarked on law reform in this regard and has recommended the Assisted Decision-making Bill to provide for support measures as an alternative and parallel measure to the current curatorship system. Proportionality is not only a standard of judicial review to ascertain whether a legislative measure justifiably limits the right to equality and legal capacity. It is also a principle that must guide any person that provides support to a person with a disability who cannot make decisions independently to ensure that whatever support is provided to him or her to come to a decision regarding his or her welfare or finances, remains proportional to his or her circumstances and needs. The support must not be overbroad, must not negate the autonomy of the person, and even in hard cases, the will and preferences of the person must be sought. The Assisted Decision-making Bill does not sufficiently incorporate the principle of proportionality and other safeguards and will require revision.