ISSN: 1996-2126
Affiliations: Professor of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 460 – 464
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ISSN: 1996-2126
Affiliations: GCOB, Rector: College of the Transfiguration, Grahamstown
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 448 – 459
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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
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.
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
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.
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
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.
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
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.