South Africa’s Engagement with International Human Rights Law

by | Jan 19, 2022 | SLR, SLR V32 I3

South Africa’s Engagement with International Human Rights Law

Author: Judge Navi Pillay

ISSN: 1996-2193
Affiliations: Former United Nations High Commissioner for Human Rights
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 365 – 385
https://doi.org/10.47348/SLR/2021/i3a1

Abstract

The commitment to human rights is the cornerstone of the Constitution of the Republic of South Africa, 1996. However, South Africa’s human rights record in the international community often stands in stark contrast to its constitutional commitment to human rights. In both international and regional contexts, South Africa has demonstrated an inconsistent approach to foreign policy that is often guided more by political considerations than by a principled commitment to advancing human rights. This lecture provides an overview of South Africa’s engagement with international human rights law in the constitutional era and evaluates its human rights record in the international arena in a diverse range of fields. These fields include South Africa’s record of human rights protection in peace and security operations on the African continent; its record as a member of the UN Security Council and Human Rights Council; the assessment of its performance by UN human rights treaty bodies; and its record in respect of the Covid-19 pandemic, international criminal justice, the death penalty, and the arms trade. The lecture draws on Judge Pillay’s extensive experience in international law, including as President of the International Criminal Tribunal for Rwanda, Judge at the International Criminal Court in The Hague and former UN High Commissioner for Human Rights.

The Protection of the Environmental Rights and Interests of Children: A South African Perspective

by | Jan 19, 2022 | SLR, SLR V32 I3

The Protection of the Environmental Rights and Interests of Children: A South African Perspective

Author: Rongedzayi Fambasayi

ISSN: 1996-2193
Affiliations: LLB Hons, PGDip Child Sensitive Social Policies, LLM, Doctoral Researcher, South African Research Chair in Cities, Law and Environmental Sustainability, Faculty of Law, North-West University
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 386 – 409
https://doi.org/10.47348/SLR/2021/i3a2

Abstract

It is becoming increasingly apparent that children are disproportionately vulnerable to environmental harm, taking into account their physical, physiological and developmental characteristics. Environmental degradation threatens children’s enjoyment of fundamental rights and freedoms, such as the right to a clean and healthy environment, the right to life, the right to health, the right to the highest attainable standard of living, and the right to dignity. This article evaluates the extent to which the South African legal framework protects the environment-related rights and interests of children. In order to achieve this objective, the article outlines the body of international and African regional human rights law and the environmental law and policy that protects and promotes the environment-related rights and interests of children. The contribution also discusses the mechanisms for redress at the international, regional and national levels in the event of environmental harm to the rights and interests of children. The body of international and African regional law sets the expectations and normative benchmarks to measure the compliance of the national (South African) legal and policy framework.

Allowing Competent Children in South Africa to refuse Medical Treatment: Lessons from England

by | Jan 19, 2022 | SLR, SLR V32 I3

Allowing Competent Children in South Africa to refuse Medical Treatment: Lessons from England

Author: Hanneretha Kruger

ISSN: 1996-2193
Affiliations: B lur LLB (UFS) LLD (Unisa), Professor of Private Law, University of South Africa
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 410 – 434
https://doi.org/10.47348/SLR/2021/i3a3

Abstract

This article considers the question whether the right of children to consent to medical treatment includes the right to refuse medical treatment, as is the case with adult patients. If this question is answered in the affirmative, a second question arises, namely whether the protection of this right of children is as strong as the protection provided to their adult counterparts. More particularly, do children have the right to refuse medical treatment if that refusal is considered to be unreasonable or irrational by the child’s parents or doctors? If this question is answered in the negative, a third question is whether the differential approach to consent by child and adult patients is justified. In the first part of the article, the position in English law is explored. In the second part of the article, the South African legislative framework, particularly the Children’s Act 38 of 2005 and the National Health Act 61 of 2003, is considered. This is done against the background of international and regional human rights instruments and the Constitution of the Republic of South Africa, 1996. The lessons learned from the developments in English law are used to suggest a way forward in South African law.

Religion, Culture and the Constitutionality of the “Avoidance of Doctrinal Entanglement” Principle

by | Jan 19, 2022 | SLR, SLR V32 I3

Religion, Culture and the Constitutionality of the “Avoidance of Doctrinal Entanglement” Principle

Author: S de Freitas

ISSN: 1996-2193
Affiliations: B Proc LLB LLM LLD, Professor of Public Law, University of the Free State, Adjunct Professor of Law, School of Law, University of Notre Dame Australia (Sydney)
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 435 – 454
https://doi.org/10.47348/SLR/2021/i3a4

Abstract

The South African judiciary supports the protection of the autonomy of religious associations. The “avoidance of doctrinal entanglement” principle accompanies this protection, which means that the judiciary is markedly hesitant to entangle itself in the essential doctrine held by the members of a religious association. The application of this principle has recently been criticised for purportedly resulting in religious practices being adjudicated separately and in some way shielded from constitutional scrutiny, while all cultural practices are expected to be imbued with a constitutional ethos. In response, it is argued that the “avoidance of doctrinal entanglement” principle is nothing more nor less than the commitment of the Constitution of the Republic of South Africa, 1996 (the “Constitution”) to the protection of fundamental beliefs (whether religious or non-religious) and its concomitant ideals towards the advancement of diversity. The said principle should therefore not be understood as presupposing that the right to freedom of religion be prioritised above that of the right to freedom of culture. The Constitution, as is the case with the right to freedom of religion, expects the judiciary to protect freedom of cultural practices where such practices are reasonable and in accordance with the public order. To argue that the “avoidance of doctrinal entanglement” principle should be ousted will bode unfavourably not only for the protection of the right to freedom of religious associations but also for the protection of cultural practices and consequently for the advancement of diversity.

Airbnb in the City of Cape Town: How could the Regulation of Short-Term Rental in Cape Town affect Human Rights?

by | Jan 19, 2022 | SLR, SLR V32 I3

Airbnb in the City of Cape Town: How could the Regulation of Short-Term Rental in Cape Town affect Human Rights?

Author: Sarah Fick

ISSN: 1996-2193
Affiliations: LLB LLM PhD, Senior Lecturer, University of the Western Cape
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 455 – 481
https://doi.org/10.47348/SLR/2021/i3a5

Abstract

Short-term home rental in Cape Town, like Airbnb, may create tension between the interests of several affected parties. To cater for the interests of these affected parties, the state may choose to regulate the short-term rental housing market. Whichever regulatory route it will take, the state should take into account the interests of those affected. More importantly, it must consider how its regulations may affect the human rights of these interested parties. This contribution considers the way in which regulation may affect the human rights of those parties identified as (arguably) the primary parties affected by Airbnb. These are the property rights of the property owners wanting to place their properties on Airbnb and the housing rights of those wanting to live in the city. Considering how these regulations may affect the rights of these interested parties can guide lawmakers (both local – with a focus on the City of Cape Town – and national) when drafting regulations to ensure that they comply with their duty to respect, protect, promote and fulfil the rights in the Bill of Rights.

Evictions During the COVID-19 Pandemic and Beyond [Discussion of South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC)]

by | Jan 19, 2022 | SLR, SLR V32 I3

Evictions During the COVID-19 Pandemic and Beyond [Discussion of South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC)]

Authors: ZT Boggenpoel and S Mahomedy

ISSN: 1996-2193
Affiliations: BComm LLD, Professor of Public Law, Stellenbosch University, Chair of the South African Research Chair in Property Law, Stellenbosch University; LLB LLM, LLD Candidate and Research Intern at the South African Research Chair in Property Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 482 – 495
https://doi.org/10.47348/SLR/2021/i3a6

Abstract

While race-based laws have been formally removed from the South African legal system and various measures for redress are now available, the after-effects of colonialism and apartheid are still visibly present in the spatial inequalities and lack of access to housing throughout the country. Closely linked to this is the issue of unlawful occupation and evictions. Under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”), which aims to give effect to section 26(3) of the Constitution of the Republic of South Africa, 1996, evictions without a court order are prohibited. However, during COVID-19, there was a drastic increase in unlawful occupations and evictions, and particularly without a court order. This is extremely concerning given the devastating impact that evictions have, as well as the increased risk they pose to those affected in terms of COVID-19. In response to the pandemic, various regulations and guidelines were put in place by the government in line with the Disaster Management Act 57 of 2002. These regulations placed various limitations on many facets of life and rights, such as property rights and the right to evict, and included an initial moratorium on evictions. This leads to further questions relating to the increase in evictions, even with the initial moratorium. As such, this case note aims to re-evaluate evictions in the light of the recent judgment in South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC), which raised numerous questions and concerns relating to governmental responses to evictions during COVID-19. In particular, the note investigates the extent to which the regulations that pertain to evictions differ from the approach to evictions under PIE. The note then turns to the issue of occupied versus unoccupied structures – a distinction that has increasingly been used by government officials in an attempt to circumvent the need for a court order. Finally, this note will make recommendations in the light of the various issues discussed.