Who believes black women? Applying the right to health framework to undo epistemic injustice

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

Who believes black women? Applying the right to health framework to undo epistemic injustice

Author: Tlaleng Mofokeng

ISSN: 1996-2193
Affiliations: United Nations Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 249 – 260
https://doi.org/10.47348/SLR/2023/i2a1

Abstract

Epistemic injustice has a significant impact on black women’s experiences of healthcare. The failure of medical professionals to consider the experience of black women impairs the realisation of their right to health. Moreover, it embeds the disadvantages that these women face, undermining the realisation of substantive equality. This lecture considers how the medical community’s failure to believe and listen to black women constitutes an example of epistemic injustice. First, it discusses the prevalence of so-called “sex testing” in sports and how it is often used to target black female athletes as an example of epistemic injustice. In particular, it focuses on the impact of sex testing on the career of Caster Semenya. Secondly, it addresses how the forced sterilisation of black women in South Africa is another example of epistemic injustice in healthcare, negatively impacting their rights. Finally, it considers the criminalisation of sex work in South Africa as a third example of epistemic injustice that has substantially affected the rights of mostly black women.

Medico-legal and bioethical implications of uterine transplants for trans women in South Africa

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

Medico-legal and bioethical implications of uterine transplants for trans women in South Africa

Author: Brigitte Clark

ISSN: 1996-2193
Affiliations: BA LLB (Rhodes) LLM (Cantab) PhD (Rhodes), Associate Professor, School of Law, University of KwaZulu-Natal, Honorary Visiting Researcher, Oxford Brookes University, Oxford
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 261 – 284
https://doi.org/10.47348/SLR/2023/i2a2

Abstract

Millions of women worldwide are affected by congenital or acquired uterine infertility, often requiring hysterectomy, and are thus unable to gestate their own children. This article provides an initial framework for assessing the feasibility of uterine transplantation against the backdrop of the best interests of the child and legal, ethical and societal notions of the family, focusing on the medical, ethical and legal position of women affected by uterine infertility, and particularly on the constitutional rights of trans women in this regard. The transplantation of organs was initially developed as a life-saving treatment and a last resort. By contrast, uterine transplantation falls into the non-life sustaining category, which raises complex ethical issues. Following a successful clinical trial investigating uterine transplantation in Sweden, uterine transplantation appears to be a viable therapeutic option for women with uterine infertility, known as absolute uterine factor infertility. For trans women, infertility has been a consequence of the realignment of a trans woman’s body by surgery with their gender identity. Medically, ethically and legally, the consideration of performing uterine transplantation in trans women would be primarily motivated by considerations of equality. Legally, in terms of the Constitution, transgender people are afforded explicit protection from both direct and indirect forms of discrimination. Subsequently, if uterine transplantation became an established treatment option for women with absolute uterine factor infertility, it might be constitutionally discriminatory to refuse to perform uterine transplantation on trans women solely because of their gender identity. In the context of the rights to equality, dignity and reproductive freedom, the article poses the question whether such rights could justifiably be limited in South African law in terms of section 36 of the Constitution, with particular reference to the right to reproductive freedom. After considering whether such rights could legitimately be limited, the article concludes that, in relation to advances in medical law and reproduction, South African legislation should scrutinise its hetero-normative concept of the family in this regard.

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.