The South African common law and the Constitution: Revisiting horizontality

by | Oct 18, 2019 | SAJHR, SAJHR V30 I1

The South African common law and the Constitution: Revisiting horizontality

Authors Nick Friedman

ISSN: 1996-2126
Affiliations: DPhil Candidate, Faculty of Law, University of Oxford
Source: South African Journal on Human Rights, Volume 30 Issue 1, 2014, p. 63 – 88

Abstract

Despite an initial flurry of interest in the direct horizontality of human rights, the doctrine’s place in South African constitutional law is now accorded a diminishing importance in judgments and journals. I argue that this is a result of a misunderstanding, by both courts and academics, of what horizontality is for and how it works. Since direct horizontality, properly understood, is central to the coherent development of South Africa’s rights jurisprudence, I aim to reinvigorate debate about horizontality by offering a new and comprehensive account of its mechanics and purpose. The account turns on a distinction between ‘horizontality’ and ‘direct horizontal application’, the implications of which run counter to some of the most widely accepted views about the Constitution’s influence on the private law.

On considering alternative accommodation and the rights and needs of vulnerable people

by | Oct 18, 2019 | SAJHR, SAJHR V30 I1

On considering alternative accommodation and the rights and needs of vulnerable people

Authors Gustav Muller

ISSN: 1996-2126
Affiliations: Lecturer, Faculty of Law, Rhodes University
Source: South African Journal on Human Rights, Volume 30 Issue 1, 2014, p. 41 – 62

Abstract

Courts have recently been at pains to incorporate detailed descriptions of the squalid conditions that prevail in informal settlements and inner-city buildings that have been abandoned by their owners. It has also become customary for courts to include a detailed overview of the history of the occupation to highlight the daily struggles of these unlawful occupiers. Despite this acknowledgment of the realities of the accommodation of impoverished groups, the courts have continued to issue eviction orders that are sought in the name of health and safety considerations or development without any serious regard to the disastrous impact that the evictions and subsequent relocations to distant accommodation will have on the livelihoods of the unlawful occupiers. It is therefore regrettable that the courts do not use the social and historical context of the unlawful occupation that they narrate at the beginning of these judgments to craft context-sensitive eviction orders in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). This lack of real engagement with the intolerable conditions that unlawful occupiers live in significantly reduces the impact that the availability of alternative accommodation has as a consideration. This is furthermore at odds with the principle that courts should be reluctant to evict relatively settled occupiers unless it is satisfied that alternative accommodation is available. This article proposes an organising framework for considering the suitability of alternative accommodation as part of the just and equitable eviction order that a court must grant in terms of s 4(8) and (9) of PIE. This organising framework is based on the categories of people that PIE explicitly requires courts to have regard to in ss 4(7) and 6(3) when considering whether it is just and equitable to evict the unlawful occupiers.

Envisaging provincial powers: A curious journey with the Constitutional Court

by | Oct 18, 2019 | SAJHR, SAJHR V30 I1

Envisaging provincial powers: A curious journey with the Constitutional Court

Authors Victoria Bronstein

ISSN: 1996-2126
Affiliations: Associate Professor, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 30 Issue 1, 2014, p. 24 – 40

Abstract

This article examines the Constitutional Court’s attitude to federalism over the last two decades. The Chaskalson court was affirming and respectful of provincial powers. Justice Ngcobo’s majority judgment in DVB Behuising in 2000 epitomised this trend. A decade later Chief Justice Ngcobo wrote the judgment of the court in Tongoane which also showed a powerful appreciation of the constitutional design when it came to provincial powers. These two judgments illustrate a functional approach to federalism, which aims to make the constitutional scheme work as a coherent whole. Tongoane is also an illustration of the previous Chief Justice’s preoccupation with facilitating democratic accountability at both national and provincial levels. Justice Ngcobo’s nuanced approach to federalism matters makes his last judgment in Limpopo all the more surprising. The tone of the Limpopo judgment is that the court must be on its guard to prevent provincial government from usurping national powers. The decision foists extreme dependence on provincial legislative bodies in practice and on a symbolic level. Strong dissents from Justice Cameron and now retired Justice Yacoob resonate with positions that they had taken during the Chaskalson years. Curiously Justice Ngcobo’s final majority judgment with which the new Chief Justice Mogoeng concurs, resonates strongly with a previous attitude to provincial powers taken by Justice Mogoeng in the court a quo in DVB Behuising. Justice Ngcobo respectfully rejected Judge Mogoeng’s approach when that case came before the Constitutional Court on appeal. In Limpopo Justice Ngcobo could be seen as adopting the tenor of Justice Mogoeng’s previous judgment. Is increasing hostility to provincial powers likely to become a feature of the jurisprudence of the future Constitutional Court?

Common purpose: Thebus, Marikana and unnecessary evil

by | Oct 18, 2019 | SAJHR, SAJHR V30 I1

Common purpose: Thebus, Marikana and unnecessary evil

Authors James Grant

ISSN: 1996-2126
Affiliations: Associate Professor of Law, University of the Witwatersrand, Johannesburg
Source: South African Journal on Human Rights, Volume 30 Issue 1, 2014, p. 1 – 23

Abstract

This article will engage with the difficult question of whether common purpose could be successfully used to prosecute the surviving Marikana miners for the murder of their fellow miners, shot and killed by the police. It will conclude that this is entirely possible, on the law as it stands. However, I will argue that the law is not what it ought to be. I will argue that common purpose violates fundamental principles of criminal law, beyond the arguments traditionally raised. The one traditional argument raised and rejected by the Constitutional Court in Thebus, which bears repeating, is that it is a violation of the presumption of innocence to attribute causation and that this is not solved, as the Constitutional Court stated, by placing the issue of causation beyond questions of proof for both parties. I will note also that Thebus does not seem to answer the charge that common purpose violates the dignity of an accused. In addition, I will argue that, contrary to fundamental principles, common purpose punishes evil thoughts alone to the extent that it relies upon subjective thought to establish conduct, and it violates the requirement of voluntariness and capacity for self-control because it allows for liability where the accused did not, and could not, control the conduct in question. It allows for the resort to unreasonable force in response to an attack. Furthermore, I will argue that common purpose has an effect which can, in many instances, be met with a valid defence of mistake of law. I will conclude that, if principle is observed, and while fairly broad defences are conceivable, common purpose ought to be abolished as a deep source of embarrassment in our criminal law.