Access to the medical records of a child: Legislative review required

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

Access to the medical records of a child: Legislative review required

Authors Letitia Pienaar

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

Abstract

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.

Race and gender equality at work: The role of the judiciary in promoting workplace transformation

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

Race and gender equality at work: The role of the judiciary in promoting workplace transformation

Authors Emma Fergus, Debbie Collier

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

Abstract

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.

Section 235 of the Constitution: Too soon or too late for cultural self-determination in South Africa?

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

Section 235 of the Constitution: Too soon or too late for cultural self-determination in South Africa?

Authors Bertus de Villiers

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

Abstract

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.

Lessons from Kiobel v Royal Dutch Petroleum Company: Developing homegrown lawyering strategies around corporate accountability

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

Lessons from Kiobel v Royal Dutch Petroleum Company: Developing homegrown lawyering strategies around corporate accountability

Authors Meetali Jain, Bonita Meyersfeld

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

Abstract

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.

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.