ISSN: 1996-2126
Affiliations: Senior Legal Officer, South African Human Rights Commission
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 434 – 440
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ISSN: 1996-2126
Affiliations: Professor of Human Development, Development Ethics, Public Policy; International Institute of Social Studies (The Hague);
Erasmus University Rotterdam, Netherlands
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 425 – 433
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ISSN: 1996-2126
Affiliations: Intern, Centre for Applied Legal Studies, University of the Witwatersrand; Research and Teaching Associate, School of Law, University of the Witwatersrand; Candidate Attorney; Bertha Foundation Intern, Centre for Applied Legal Studies, University of the Witwatersrand; Senior Researcher, Human Sciences Research Council; Senior Researcher, Human Sciences Research Council; Junior Researcher, Human Sciences Research Council; Deputy Director, Centre for Applied Legal Studies, University of the Witwatersrand; Senior Lecturer, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 410 – 424
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ISSN: 1996-2126
Affiliations: Professor in the School of Law, University of the Witwatersrand, Johannesburg
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 379 – 400
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ISSN: 1996-2126
Affiliations: Yale University graduate student
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 357 – 378
This article begins by taking up the theoretical proximity between scholar and attorney Wilmien Wicomb’s conception, drawn from a hybrid of Derridean thought and cybernetic theory, of customary law within South Africa as a ‘complex system’, and the complexity theory of founding neoliberal legal thinker Friedrich Hayek, for whom cybernetic complexity theory was a substantial intellectual influence. Wicomb’s theoretical frame raises the question of the role the market plays and ought to play in the creation and maintenance of spaces within which customary law can function as an independent, constitutionally recognised source of law within South Africa. This question is of pressing importance at a moment when neoliberalism, understood as a mode of governance, is an active and harmful paradigm in the lives of members of customary communities, as well as in the legal culture more broadly, in South Africa, as an analysis of the legal norms present in South Africa’s ‘vision for 2030’, the National Development Plan, will demonstrate. Wicomb’s work, it is argued, offers an occasion for a critical rethinking of the status of customary law, its boundaries, and the kinds of legal institutions capable of responding to it at the contemporary legal moment in South Africa.
ISSN: 1996-2126
Affiliations: Mellon Early Research Career Fellow, SERAJ, Stellenbosch University
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 330 – 356
The realisation of socio-economic rights constitutes a critical prerequisite in the struggle to eradicate poverty and inequality in South Africa. State resource allocation lies at the heart of the realisation of socio-economic rights. Courts will often be called upon to adjudicate complex, polycentric prioritisation decisions taken by the state. An appropriate review paradigm can aid courts in performing this onerous task. Capabilities, as the substantive freedom to choose the lives we have reason to value, resonate strongly with the socio-economic rights enshrined in the Constitution of the Republic of South Africa, 1996. The capabilities approach can therefore be developed to constitute a capabilities-based standard of review for the adjudication of state resource allocation decisions. The need for such a theoretically justified standard of review becomes apparent from the Constitutional Court’s insufficient focus on the content of socio-economic rights, and from the maintenance of a rigid distinction between the positive and negative duties imposed upon the state by socio-economic rights.