Contractual autonomy unpacked: The internal and external dimensions of contractual autonomy operating in the post-apartheid constitutional context

by | Oct 16, 2019 | SAJHR, SAJHR V31 I3

Contractual autonomy unpacked: The internal and external dimensions of contractual autonomy operating in the post-apartheid constitutional context

Authors Deeksha Bhana

ISSN: 1996-2126
Affiliations: Associate Professor of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 526 – 552

Abstract

The concept of contractual autonomy comprises two essential dimensions, namely the internal (content) and the external (reach/scope of operation) dimensions. The former dimension focuses on the substantive concept of the constitutionalised, contracting self and the latter on the extent to which contract law gives, and ought to give, credence and effect to the exercise of autonomy, as defined by the internal content dimension. In relation to contractual autonomy, the question of how to conceive of contractual autonomy in the post-apartheid constitutional context must extend both to these internal and external dimensions. Upon perusal of the cases however, one finds that not much attention has been paid to the internal (content) dimension of the above question. The courts have focused on the external (reach) dimension of this question; the stated rationale being that striking a constitutional balance between the classically individualist and collectivist ideologies re-defines the contractual doctrine of legality and thus contract law as a whole. In this article, I show how the courts’ limited approach to the concept of contractual autonomy continues to entrench a fixed (neo-) classical liberal conception of contractual autonomy within our common law of contract, which, in turn, impedes transformative constitutionalism in the private sphere of contracts.

Transformative unfair discrimination jurisprudence: The need for a baseline intensity of review

by | Oct 16, 2019 | SAJHR, SAJHR V31 I3

Transformative unfair discrimination jurisprudence: The need for a baseline intensity of review

Authors Chris McConnachie

ISSN: 1996-2126
Affiliations: Honorary Research Associate, Rhodes University Faculty of Law; Pupil Advocate, Johannesburg Society of Advocates
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 504 – 525

Abstract

The Constitutional Court holds that the prohibition of unfair discrimination is aimed at preventing and addressing patterns of group disadvantage. However, there is a striking inconsistency between this transformative aim and the court’s decisions in a set of five controversial cases. In Hugo, Harksen, Jordan, Volks, and Union of Refugee Women, slender majorities found discrimination to be fair despite clear indications that it entrenched patterns of group disadvantage. Existing critiques of these judgments have focused on the court’s failure to conduct a fully contextualised assessment of the impact of the discrimination. In doing so, commentators have generally overlooked an equally significant flaw in these decisions. In this article, I demonstrate that the majority judgments all adopted an indefensibly weak intensity of review in assessing the state’s justifications for the discrimination, leading the court to uphold discrimination on flimsy grounds. The error was that the majority judgments did not satisfy the ‘baseline’ intensity of review, the non-negotiable threshold of review which, I argue, ought to be applied in all unfair discrimination cases. I demonstrate that this baseline has four central requirements which were flouted in these decisions: (a) the discriminator must present a justification for the discrimination; (b) the court must subject this justification to a proportionality analysis; (c) it must apply a full proportionality analysis, exploring the legitimacy, suitability, necessity, and proportionality stricto senso of the discrimination; and (d) the court must place the evidential and argumentative burden squarely on the discriminator in assessing its justifications. These baseline requirements would have left the court with little option but to find the discrimination to be unfair in these five cases. In this light, I argue that consistent application of this baseline can help to make the court better at addressing patterns of group disadvantage in future decisions.

Conflict management in an era of urbanisation: 20 years of housing rights in the South African Constitutional Court

by | Oct 16, 2019 | SAJHR, SAJHR V31 I3

Conflict management in an era of urbanisation: 20 years of housing rights in the South African Constitutional Court

Authors Stuart Wilson, Jackie Dugard, Michael Clark

ISSN: 1996-2126
Affiliations: Executive Director, Socio-Economic Rights Institute of South Africa (SERI); Visiting Senior Fellow, School of Law, University of the Witwatersrand; and practicing advocate, Johannesburg Bar; Associate Professor, School of Law, University of the Witwatersrand; and honorary senior researcher, SERI; Legal Researcher, Centre for Law and Society, University of Cape Town
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 472 – 503

Abstract

Over the past 20 years, of the 23 socio-economic rights decisions handed down by the South African Constitutional Court, 15 judgments have related to the s 26 right to adequate housing, making it by far the most litigated socio-economic right. The relative frequency of housing rights cases before the Constitutional Court relates to the intensity of post-apartheid struggles over access to urban and peri-urban land. Analysing the contours and consequences of the housing rights related judgments over the past 20 years, we highlight the Constitutional Court’s role as arbiter of clashing rights of ownership and occupation in the context of evolving and inadequately-managed urbanisation.

Social rights and transformation in South Africa: Three frames

by | Oct 16, 2019 | SAJHR, SAJHR V31 I3

Social rights and transformation in South Africa: Three frames

Authors Sandra Liebenberg

ISSN: 1996-2126
Affiliations: HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch Law Faculty
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 446 – 471

Abstract

This article conceives of transformative constitutionalism as processes of constitutional enactment, interpretation and enforcement which help bring about fundamental changes to South Africa’s current unjust economic and social structures. Transformative strategies seek to redress the underlying structures which generate patterns of material deprivation and status hierarchies. Based on this understanding, the article analyses the transformative potential of three ways in which social rights have been framed in law and policy discourses in South Africa: (1) social citizenship; (2) equality; and (3) participation. The concept of a frame is useful as it acts as an ‘interpretive lens’ which highlights certain dimensions of legal responses to the complex, multi-faceted social problem of poverty. By drawing explicit attention to how the meaning of rights is constructed, framing invites reflection on what is included and excluded from the frame, and how this might shape our understanding of the nature of social rights violations and transformative remedial responses. Each frame is evaluated in terms of its strengths and limitations in stimulating and supporting transformation in the sense described above. Strategies for strengthening the transformative development of each frame are also identified.

Special Issue on Transformation and the Courts: Introduction

by | Sep 22, 2019 | SAJHR, SAJHR V31 I3

Special Issue on Transformation and the Courts: Introduction

Authors Cathi Albertyn, Muriel Mushariwa

ISSN: 1996-2126
Affiliations: Professor, School of Law, University of the Witwatersrand; Senior Lecturer, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 441 – 445

Abstract

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