In defence of the right of religious associations to discriminate: A reply to Bilchitz and De Freitas

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

In defence of the right of religious associations to discriminate: A reply to Bilchitz and De Freitas

Authors Patrick Lenta

ISSN: 1996-2126
Affiliations: Associate Professor, School of Philosophy and Ethics, University of KwaZulu-Natal
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 429 – 447

Abstract

In a recent Special Issue of the South African Journal on Human Rights (SAJHR) devoted to the theme ‘religion and human rights’, David Bilchitz and Shaun de Freitas reply to arguments advanced by me in support of according religious associations a right to discriminate on grounds such as gender, sexual orientation and race in their employment practices relating to positions sufficiently close to the religion’s doctrinal core. Bilchitz continues to think that I allow too much discrimination on the part of religious associations. He rehearses arguments in defence of his view that religious associations should not be allowed to discriminate in employment practices on otherwise prohibited grounds and presses new objections to the position I favour. By contrast, De Freitas is of the view that I do not afford religious associations enough opportunity to discriminate. Between them, Bilchitz and De Freitas charge that I ‘owe’ several arguments. I offer here a final reply to Bilchitz and De Freitas in defence of the right of religious associations to discriminate, as I understand it. Although I respond towards the end to a criticism of my position by De Freitas, most of this article is given over to a reply to Bilchitz, whose arguments represent the more drastic challenge to my claim that religious groups should be permitted sometimes to discriminate. My purpose is to show that, although he contends adroitly in support of denying to religious associations a right to discriminate, Bilchitz’s efforts are unavailing. His arguments are not nearly strong enough to justify denying to religious associations a right sometimes to discriminate.

Access to safe abortion as a human right in the African region: Lessons from emerging jurisprudence of un treaty-monitoring bodies

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

Access to safe abortion as a human right in the African region: Lessons from emerging jurisprudence of un treaty-monitoring bodies

Authors Charles Ngwena

ISSN: 1996-2126
Affiliations: Professor, Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 399 – 428

Abstract

Each year, unsafe abortion causes the death of thousands of women, rendering them seriously ill and disabling many more in the African region. Highly restrictive abortion law is a major causative factor. Among United Nations (UN) treaty-monitoring bodies, there is a growing, albeit incremental, recognition of access to safe abortion services as a human right. Against the backdrop of abortion regimes that impede access to safe abortion in the African region, this article takes critical stock of the contribution that UN treaty-monitoring bodies are making towards the development of jurisprudence that conceives access to abortion as a human right. Its main focus is on critically appraising three decisions made by UN treaty-monitoring bodies, namely, KL v Peru; LMR v Argentina; and LC v Peru under Optional Protocols and drawing lessons for the African region.

Meaningful engagement: Proceduralising socio-economic rights further or infusing administrative law with substance?

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

Meaningful engagement: Proceduralising socio-economic rights further or infusing administrative law with substance?

Authors Shanelle van der Berg

ISSN: 1996-2126
Affiliations: LLD candidate, member of the Socio-Economic Rights and Administrative Justice Research Project (SERAJ) Stellenbosch University Law Faculty
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 376 – 398

Abstract

This article focuses on a point of interaction between socio-economic rights and administrative justice, namely meaningful engagement. Meaningful engagement has developed into both a requirement for a reasonable government policy in socio-economic rights cases as well as a remedy where inadequate engagement occurred prior to litigation. It has been alternately praised as an innovative remedy and criticised as a further proceduralisation of socio-economic rights adjudication. However, in cases where socio-economic rights and administrative law overlap, the value of meaningful engagement may lie in recognising it as potentially infusing administrative justice’s requirement for procedural fairness with normative substance rather than as a further watering down or proceduralisation of socio-economic rights jurisprudence. For the benefits of such a conceptualisation to be exploited, courts must display a greater willingness to recognise and develop the important link that exists between administrative justice and the realisation of socio-economic rights in many cases.

The horizontal application of the Bill of Rights: A reconciliation of sections 8 and 39 of the Constitution

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

The horizontal application of the Bill of Rights: A reconciliation of sections 8 and 39 of the Constitution

Authors Deeksha Bhana

ISSN: 1996-2126
Affiliations: Associate Professor of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 351 – 375

Abstract

Whilst the judiciary accepts that the Bill of Rights must apply horizontally, there remains considerable ambivalence about the precise interplay between the Bill of Rights and private law; an ambivalence that reveals itself in the debate about the extent to which, and the manner in which, our traditional system of private law should be constitutionalised. In this article, I revisit the South African concept of horizontality with a view to determining precisely how ss 8 and 39(2) of the Constitution envisage the constitutionalisation of private law. To date, the horizontality debate has focused largely on whether direct or indirect horizontal application is to be preferred, with s 8 generally being associated with direct horizontality and s 39(2) with indirect horizontality. I argue here that this position is flawed. In particular, I show that ss 8 and 39 of the Constitution largely transcend the direct-indirect horizontality debate. I then go on to explain the distinct roles that each sub-section is required to play if our courts effectively are to constitutionalise our private law.

Balancing the best interests of the child and the interests of society when sentencing youth offenders and primary caregivers in South Africa

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

Balancing the best interests of the child and the interests of society when sentencing youth offenders and primary caregivers in South Africa

Authors Admark Moyo

ISSN: 1996-2126
Affiliations: PhD candidate, University of Cape Town (UCT)
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 314 – 350

Abstract

In the context of sentencing children in conflict with the law, the need to balance the best interests of the child and the interests of society replays the ideological tension between the welfare model and the justice model of juvenile justice. The welfare model of juvenile justice emphasises the rehabilitation needs of the offender and the justice model stresses due process and accountability for one’s conduct. Yet, sentences imposed on many offenders usually carry elements of both models and there are indications that South Africa has adopted another emerging model of juvenile justice — the restorative justice model. Generally, the type of sentence to be meted out is determined by the nature and gravity of the offence; the circumstances of the offender; and the interests of society. This triadic method has been codified in the Child Justice Act as the criteria for determining sentences that balance the interests of the child and those of society. When sentencing primary caregivers, the courts are also required to balance the interests of society and the best interests of the child(ren) of the primary caregiver. In this instance, the courts should be mindful that it is not the child who has committed an offence, but an adult who has the capacity to understand the implications of his or her conduct for the social, moral, intellectual and physical development of their child. However, the bench is bound to ensure that the interests of the child are not severely negatively affected by the imposition of custodial sentences where other non-residential alternatives could be appropriate for the offence committed by the primary caregiver. In the two cases that were decided by the Constitutional Court, much turned on the availability or otherwise of other appropriate caregivers who were willing to take care of the children during their mothers’ incarceration.

Restoring the ‘historical deficit’: The exercise of the right to freedom of religion and culture in democratic South Africa

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

Restoring the ‘historical deficit’: The exercise of the right to freedom of religion and culture in democratic South Africa

Authors Patricia Michelle Lenaghan

ISSN: 1996-2126
Affiliations: Associate Professor, Department of Mercantile Law, University of the Western Cape (UWC)
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 294 – 313

Abstract

On 18 January 1960, LIFE magazine began a series of articles on democracy around the world. The newly independent nation of Ghana (1957) was featured in Part 1 and the cover photograph was of Augustus Molade Akiwumi, the Speaker of the House in Ghana, dressed in British-style wig and robes. The title of the feature article read, ‘Ghana’s Leap from Stone Age to Eager New Nationhood’. The feature explains that in Ghana ‘Courts are being built, and in lower courts the temporary local judges are being replaced with more qualified appointees to settle local disputes and initiate the people in the mechanics of Western justice’. However in stark contrast to the portrayal of pre-colonial Ghana as ‘Stone Age’ the Asanti peoples of Ghana developed a complex, hierarchical society and legal system centuries before Europeans ever arrived on the continent. In critical reflection of the magazine cover, this article is founded on demonstrating how the colonial, post-colonial, apartheid and post-apartheid state have through an oppressive stance suppressed indigenous religious and cultural diversity. In addition, it is asserted that the current constitutional arrangements have not at all times effectively dealt with this subjugation. It is presupposed that unless a positive approach towards religious and cultural integrity is displayed and an environment is created in which these rights to freedom of religion and culture may prosper, the constitutional endeavour of establishing unity and solidarity in our diverse society will remain elusive. In conclusion, some approaches to enhancing this constitutional endeavour are proffered.