Evaluating remedial empowerment as a missing link in administrative justice

by | Mar 4, 2024 | SLR, SLR V34 I2

Evaluating remedial empowerment as a missing link in administrative justice

Authors: Ernst Heydenrych and Geo Quinot

ISSN: 1996-2193
Affiliations: LLB (cum laude) LLM (cum laude) LLD (Stell), Junior Lecturer, Department of Mercantile Law, University of Stellenbosch; BA (Law) LLB (Stell) LLM (Virginia) MA (UFS) MPA (Birmingham) LLD (Stell), Professor, Department of Public Law, University of Stellenbosch
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 285 – 309
https://doi.org/10.47348/SLR/2023/i2a3

Abstract

The Constitution of the Republic of South Africa, 1996 frames the project of addressing South Africa’s past and current challenges as one of justice, in what has generally become known as transformative constitutionalism. However, South Africa’s justice system (the formal judicial mechanisms to extract justice) remains largely inaccessible to the poor due to its high costs, prolonged time-periods, and technical nature. Furthermore, South Africa does not currently have a uniform system of administrative, internal controls, and it also does not currently recognise an enforceable duty against the state to implement such a system.
Within this context, the central argument of this contribution is that South Africa should, alongside section 7(2) of the Promotion of Administrative Justice Act 3 of 2000, recognise a duty to create internal remedies and establish a comprehensive system of administrative, internal remedies that would allow the public administration to correct or review its own decisions. The development of such a system would enable the public administration to deal with its decisions and actions on a first-hand basis and, in principle, broaden access to administrative justice for the poor and marginalised. It will also keep the promise of constitutional transformation as a matter of justice alive. We aim to set out the rationale for the creation and implementation of a uniform system of internal controls in this contribution.

Transformative constitutionalism and the framework of the common law of personality

by | Mar 4, 2024 | SLR, SLR V34 I2

Transformative constitutionalism and the framework of the common law of personality

Author: CJ Visser

ISSN: 1996-2193
Affiliations: LLB (UJ) LLM PhD (Wits), Senior Lecturer, School of Law, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 310 – 332
https://doi.org/10.47348/SLR/2023/i2a4

Abstract

This article interrogates the constitutionalisation of the framework of the common law of personality – its substance and method – against the transformative constitutionalism paradigm. The transformative constitutionalism paradigm requires greater reflexivity as to the balancing of individualistic and collectivist values in common law frameworks. Such a constitutionalisation process must be influenced by legal culture and ideology as an overarching ideological concern. The Constitutional Court in Le Roux v Dey 2011 3 SA 274 ostensibly attempted to align the framework of the common law of personality with the Constitution of the Republic, 1996 (the “Constitution”). However, the court failed to articulate the human personality as a composite legal interest consisting of various personality rights, underscored by human dignity, due to a superseding preoccupation with subjective feelings of self-worth. This reduced the composite nature of the human personality and the multifaceted nature of human dignity. The same preoccupation also prevented the separate and distinct application of the requirements of the actio iniuriarum to articulate the human personality as a composite legal interest. This article refers to the court’s judicial line of reasoning as “the iniuria approach”. This approach gives rise to an inadequate alignment between the common law and the Constitution, resulting in a substantive mismatch. Such a substantive mismatch is a “defective conversion”, of which the underlying cause is an underpinning ideology of pre-constitutional notions of (classical) liberalism) concealed through a conservative legal culture with attendant formalistic modes of legal reasoning. This causes an imbalance between individualistic and collectivist values permeating the common law’s framework in contradiction to the transformative constitutionalism paradigm. This imbalance frustrates the development of the framework of the common law of personality in line with constitutional values and necessitates the rejection of the iniuria approach in favour of a more transformative approach.

Public interest versus the interest of the fit and proper legal practitioner

by | Mar 4, 2024 | SLR, SLR V34 I2

Public interest versus the interest of the fit and proper legal practitioner

Author: Martie Bloem

ISSN: 1996-2193
Affiliations: LLB LLM PhD, Lecturer, University of the Free State
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 333 – 348
https://doi.org/10.47348/SLR/2023/i2a5

Abstract

The question raised in this contribution is whether it can be said that the South African legal profession is primarily focused on serving the public or rather on serving its own interest. The assumption is that legal practice should provide an unbiased service aimed at the public good, independent of any concern for personal gain, traditionally recognised as one of the main distinguishing features of professional practice. It is further assumed that service in the interest of the public is one of the underlying values which determines legal culture and therefore also what it means to be a fit and proper legal practitioner. In an attempt to redefine “public interest” as one of the principles that should inform the fit and proper standard, the development of the professions is briefly analysed before considering the meaning of the public interest for the legal profession. This consideration is important due to the legal profession’s positioning and resultant responsibilities in society. As perceived guardians of the public interest and justice, informed by the values of the Constitution of the Republic of South Africa, 1996, the profession is ideally positioned to be the cause of change but must be reminded that it has as much potential to cause harm as it has to do good. The proposal is that genuine and honest legal service in the public interest is a value that should inform legal culture and what it means to be or to become fit and proper. However, realising this potential will entail honest introspection by legal practitioners on their role and responsibilities in the practice of law and how they contribute to the current vision of the law.

Navigating the stormy waters of providing a safe and healthy environment at the municipal level [Discussion of Featherbrooke Homeowners Association NPC v Mogale City Local Municipality GJ 25-01-2021 case no 11292/2020]

by | Mar 4, 2024 | SLR, SLR V34 I2

Navigating the stormy waters of providing a safe and healthy environment at the municipal level [Discussion of Featherbrooke Homeowners Association NPC v Mogale City Local Municipality GJ 25-01-2021 case no 11292/2020]

Authors: Onkarabile Osiele and Felix Dube

ISSN: 1996-2193
Affiliations: LLB LLM (NWU), South African Research Chair in Cities, Law and Environmental Sustainability Faculty of Law, North-West University; LLB (Univen) LLM (NWU) LLD (NWU), Postdoctoral fellow, Faculty of Law, North-West University
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 349 – 357
https://doi.org/10.47348/SLR/2023/i2a6

Abstract

The Constitution of the Republic of South Africa, 1996, obligates the state, including local government, to provide a healthy environment that is not harmful to well-being. In Featherbrooke Homeowners Association NPC v Mogale City Local Municipality GJ 25-01-2021 case no 11292/2020, the court dealt with the failure of local government to mitigate and prevent storm water flooding. This failure placed the applicant at risk of electrocution, exposure to sewage waste and damage to property. We argue in this note that whereas the court’s order reaffirmed the applicant’s environmental rights and the corresponding obligation of local government to fulfil its duty to promote and protect the right to a safe environment by mitigating and preventing storm water flooding, the court missed an opportunity to develop jurisprudence on what it recognised as an “anthropocentric” right of the applicant to a safe and healthy environment.

The use of linguistics to determine meaning in cases of personality infringement

by | Dec 28, 2023 | SLR, SLR V34 I1

The use of linguistics to determine meaning in cases of personality infringement

Authors: T Carney, L Grundlingh and JC Knobel

ISSN: 1996-2193
Affiliations: BA Hons MA PhD, Associate professor, Department of Afrikaans and Theory of Literature, University of South Africa; BA Hons MA PhD, Senior lecturer, Department of Afrikaans and Theory of Literature, University of South Africa; BLC LLB LLD, Professor, Department of Private Law, University of South Africa
Source: Stellenbosch Law Review, Volume 34 Issue 1, 2023, p. 3 – 26
https://doi.org/10.47348/SLR/2023/i1a1

Abstract

Personality infringements through social media are not uncommon. Although many personality infringements can be linked to linguistics, given the fact that they take place in the form of written or spoken utterances, linguistic perspectives and theories are not commonly used to analyse evidence in possible personality infringement cases. This contribution aims to illustrate how linguistic theories can add value to the analysis of evidence in some personality infringement cases by investigating the word “fagott” and the potential reasons why it was misread as “faggot” in a given instance. The likeliness of one word being misread as another (and the implications thereof) is explored through pragmatic and psycholinguistic theories and is set against the backdrop of the law of personality. Data collected from English corpora complement the theories and help to illuminate why one word could be mistaken for the other. The article concludes that the linguistic evidence may be a valuable aid in determining whether personality infringements have taken place.

The uncertain constitutional duty to internally investigate and remedy state impropriety

by | Dec 28, 2023 | SLR, SLR V34 I1

The uncertain constitutional duty to internally investigate and remedy state impropriety

Authors: Nicholas Herd and Melanie Jean Murcott

ISSN: 1996-2193
Affiliations: LLB (University of Pretoria), Law Researcher, Office of the Chief Justice (Constitutional Court of South Africa); LLB (University of Cape Town), LLM (University of Pretoria), LLD (University of the North-West), Associate Professor, Institute of Marine and Environmental Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 34 Issue 1, 2023, p. 27 – 53
https://doi.org/10.47348/SLR/2023/i1a2

Abstract

It may seem axiomatic that the Constitution of the Republic of South Africa, 1996 imposes a general duty on public functionaries to investigate and remedy potential state impropriety, such as corruption, committed within the state. Public functionaries are, after all, supposed to be accountable to the public, and are enjoined by the Constitution to uphold and protect the rule of law. However, conflicting Constitutional Court jurisprudence gives rise to legal uncertainty about the existence of a general constitutional duty to investigate and remedy impropriety. This article explores whether public functionaries are obliged – as a matter of constitutional law – to respond when they become aware of actual or probable state impropriety. First, we argue that investigations have instrumental value, align with constitutional imperatives, and are mandated by relevant provisions of the Constitution. Secondly, we deduce that the overriding position emerging from the Constitutional Court’s decisions on the obligations of state functionaries constitutes judicial recognition of a general duty to investigate and remedy potential state impropriety. Finally, we conclude that to advance the rule of law, amongst other values of South Africa’s constitutional order, the legal position should be clarified in future jurisprudence and through legislative intervention.