ISSN: 1996-2126
Affiliations: Judge President, Competition Appeal Court, South Africa; Hon Professor in the Faculty of Law, University of Cape Town
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 667 – 672
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ISSN: 1996-2126
Affiliations: Research Officer at the Democratic Governance and Rights Unit (DGRU), University of Cape Town
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 655 – 666
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ISSN: 1996-2126
Affiliations: Researcher, SAIFAC (South African Institute for Advanced Constitutional, Public, Human Rights and International Law), a Centre of the University of Johannesburg
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 631 – 654
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ISSN: 1996-2126
Affiliations: Associate Professor, Thabo Mbeki African Leadership Institute, University of South Africa
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 607 – 630
The principle of equality is at the centre of the South African Constitution, which aims to establish an egalitarian society. As shown by the empowering nature of the jurisprudence of the South African Constitutional Court, the latter plays an important role in giving effect to socio-economic rights. Yet, the poor have no legal aid, and therefore no access to court especially in civil matters through which their socio-economic rights can be addressed. This shows that a considerable potential of the Constitution is not realised. Arguably, a key constraint is the lack of legal aid for the poor. Legal aid is crucial in South Africa where only a few people can afford the services of lawyers. This article critically explores the extent to which the Constitution has been transformative for the poor, in terms of guaranteeing their access to justice through legal aid. Answering this question entails addressing the extent to which legal aid provided by the legal system is in line with the tenets of equality which inform the Constitution. In assessing the realisation of the rights of the poor through legal aid, this article examines legal and policy documents, as well as the state’s practice pertaining to legal aid.
ISSN: 1996-2126
Affiliations: Policy Development and Advocacy Fellow at Sonke Gender Justice; Legal Researcher at SECTION27; Researcher at the Judicial College of Victoria
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 579 – 606
The South African Constitution entrenches the achievement of equality as a founding value and the full and equal enjoyment of all rights and freedoms as a right and prohibits discrimination based on both sex and gender. Feminism is a movement to end sexism, sexist exploitation and oppression and to end all forms of gender discrimination. The Constitution, at its core, therefore embodies a feminist ideology. This has implications for the interpretation and application of all law and policy, including s 174 of the Constitution which requires the Judicial Service Commission (JSC) to consider ‘the need for the judiciary to reflect broadly the racial and gender composition of South Africa when judicial officers are appointed’. Broadly, the JSC’s conduct between 1994 and 2014 evidences a failure to understand both gender and its constitutional mandate in terms of s 174 to proactively pursue the appointment of both female and feminist judges. Attempts to appoint more women, absent an appropriate understanding of gender, have resulted in both subtle and overt discrimination against female candidates for judicial selection. In order to remedy its misguided approach and fulfil its mandate the JSC must produce detailed guidelines on its approach to gender transformation of the judiciary, grounded in a feminist understanding of the Constitution. A unified feminist movement which embraces South Africa’s feminist Constitution, with the support of a broad coalition of human rights advocacy groups and activist organisations, is urgently needed to guide the JSC in its understanding of feminism and gender, but also to hold the JSC to account when it betrays this mandate. Women are not a proxy for feminism; the South African judiciary is in dire need of a more feminist face.
ISSN: 1996-2126
Affiliations: Admitted Attorney, Senior Legal Officer, South African Human Rights Commission; Admitted Attorney, Lecturer, School of Law, University of the Witwatersrand, South Africa
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 553 – 578
Notwithstanding South Africa recently having celebrated 20 years of its democracy, it remains one of the most unequal societies in the world. The South African Constitution guarantees the right to equality, yet the country remains divided along racial lines. In spite of numerous legislative and policy attempts to achieve substantive equality, when reflecting on the current demographic statistics, it appears that the South African legal profession finds itself embedded in this division. This speaks to the tensions that have emerged as the country struggles to balance its constitutional obligations to provide redress for discrimination suffered during apartheid while simultaneously striving to meet its economic development imperatives. Through an analysis of rights-based and human capital approaches to transformation, we argue in this article that despite the tensions between meeting transformative objectives and the needs of the economy, these goals are not incongruent. Some pertinent pieces of legislation are considered in making the argument that the transformation of the legal profession requires active transformation beyond the context of law and policy. The role of the legal profession in facilitating transformation in institutional cultures that inform it, particularly with regard to legal education and language, is explored. We argue that the profession needs to be invested in ensuring that its professional constituency adequately reflects the society it represents. This is not only as a means of achieving transformation within the profession, but more importantly, of ensuring that as custodians of the Constitution, it lives the values contained therein.