The (in)significance of the common law? Constitutional interpretation and the Mansingh judgments
- Authors: Krüger, Rósaan
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68900 , vital:29337 , https://hdl.handle.net/10520/EJC155168
- Description: Publisher version , The law reports abound with case law on the interpretation of the provisions in the Bill of Rights. Cases on the interpretation of constitutional provisions that fall outside of the Bill of Rights are, by contrast, few and far between. (A few prominent examples are S v Mhlungu 1995 (3) SA 867 (CC); President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) ('SARFU'); Matatiele Municipality v President of the Republic of South Africa 2006 (5) SA 47 (CC); Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC); Merafong Demarcation Forum v President of the Republic of South Africa 2008 (5) SA171 (CC); Chonco v President of the Republic of South Africa 2010 (6) BCLR 511 (CC); Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC).) Mansingh's April 2011 application to the North Gauteng High Court was one of these unusual cases.
- Full Text: false
- Date Issued: 2014
- Authors: Krüger, Rósaan
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68900 , vital:29337 , https://hdl.handle.net/10520/EJC155168
- Description: Publisher version , The law reports abound with case law on the interpretation of the provisions in the Bill of Rights. Cases on the interpretation of constitutional provisions that fall outside of the Bill of Rights are, by contrast, few and far between. (A few prominent examples are S v Mhlungu 1995 (3) SA 867 (CC); President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) ('SARFU'); Matatiele Municipality v President of the Republic of South Africa 2006 (5) SA 47 (CC); Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC); Merafong Demarcation Forum v President of the Republic of South Africa 2008 (5) SA171 (CC); Chonco v President of the Republic of South Africa 2010 (6) BCLR 511 (CC); Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC).) Mansingh's April 2011 application to the North Gauteng High Court was one of these unusual cases.
- Full Text: false
- Date Issued: 2014
Equality and unfair discrimination: refining the Harksen test
- Authors: Krüger, Rósaan
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68890 , vital:29336 , https://hdl.handle.net/10520/EJC53981
- Description: Publisher version , The 1997 formulation of the test in Harksen by Constitutional Court seemed to settle the constitutional standards in respect of equality and unfair discrimination. In this article this test is scrutinised closely with a view to clarify the different aspects of the right protected in s 9. Reliance is further placed on Canadian commentary which interrogates the dignity-centred analysis of the Canadian Supreme Court in relation to the Canadian Charter's prohibition of discrimination. The similar insistence on dignity as the interest protected by the right to equality opens up new possibilities in the South African context. Accordingly, specific 'wrongs' or 'indignities' of inequality are identified, which refines the Harksen test. The identification of the indignities, it is suggested, assists litigants and the court on a practical level when determining the fairness or otherwise of discrimination.
- Full Text: false
- Date Issued: 2011
- Authors: Krüger, Rósaan
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68890 , vital:29336 , https://hdl.handle.net/10520/EJC53981
- Description: Publisher version , The 1997 formulation of the test in Harksen by Constitutional Court seemed to settle the constitutional standards in respect of equality and unfair discrimination. In this article this test is scrutinised closely with a view to clarify the different aspects of the right protected in s 9. Reliance is further placed on Canadian commentary which interrogates the dignity-centred analysis of the Canadian Supreme Court in relation to the Canadian Charter's prohibition of discrimination. The similar insistence on dignity as the interest protected by the right to equality opens up new possibilities in the South African context. Accordingly, specific 'wrongs' or 'indignities' of inequality are identified, which refines the Harksen test. The identification of the indignities, it is suggested, assists litigants and the court on a practical level when determining the fairness or otherwise of discrimination.
- Full Text: false
- Date Issued: 2011
Small steps to equal dignity: the work of the South African equality courts
- Authors: Krüger, Rósaan
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68920 , vital:29339 , http://www.equalrightstrust.org/ertdocumentbank/ERR7_kruger.pdf
- Description: Publisher version , Introduction: “The South African Constitution is primarily and emphatically an egalitarian constitution. The supreme laws of comparable constitutional states may underscore other principles and rights. But in the light of our own particular history, and our vision for the future, a constitution was written with equality at its centre. Equality is our Constitution’s focus and organising principle.” Given the foundational role of equality in the South African constitutional framework, the drafters of the South African Constitution (the Constitution) directed the South African Parliament (Parliament) to enact legislation to “prevent or prohibit unfair discrimination” between individuals within three years of the enactment of the Constitution.3 Under great pressure, Parliament finalised and passed the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act) within two days of the constitutional deadline.4 The Equality Act, as the title indicates, addresses the promotion of equality on the one hand, and provides for reactive measures where the equality right is breached, on the other. The reactive provisions include the prohibition of unfair discrimination and related infringements of the equality right. The Equality Act expressly provides for the enforcement of its provisions in specifically created equality courts. The majority of the reactive provisions of the Equality Act have been operational since 16 June 2003. More than a decade after the enactment of the legislation, the promotional aspects of the Equality Act are yet to come into operation. This article focuses on the reactive provisions of the Equality Act by providing a snapshot of the work of selected South African equality courts for the period from June 2003 to December 2007 insofar as complaints of racism are concerned. In order to contextualise the application of the Equality Act, the article provides a brief overview of the reactive provisions of the Equality Act and the mechanisms for its enforcement.
- Full Text: false
- Date Issued: 2011
- Authors: Krüger, Rósaan
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68920 , vital:29339 , http://www.equalrightstrust.org/ertdocumentbank/ERR7_kruger.pdf
- Description: Publisher version , Introduction: “The South African Constitution is primarily and emphatically an egalitarian constitution. The supreme laws of comparable constitutional states may underscore other principles and rights. But in the light of our own particular history, and our vision for the future, a constitution was written with equality at its centre. Equality is our Constitution’s focus and organising principle.” Given the foundational role of equality in the South African constitutional framework, the drafters of the South African Constitution (the Constitution) directed the South African Parliament (Parliament) to enact legislation to “prevent or prohibit unfair discrimination” between individuals within three years of the enactment of the Constitution.3 Under great pressure, Parliament finalised and passed the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act) within two days of the constitutional deadline.4 The Equality Act, as the title indicates, addresses the promotion of equality on the one hand, and provides for reactive measures where the equality right is breached, on the other. The reactive provisions include the prohibition of unfair discrimination and related infringements of the equality right. The Equality Act expressly provides for the enforcement of its provisions in specifically created equality courts. The majority of the reactive provisions of the Equality Act have been operational since 16 June 2003. More than a decade after the enactment of the legislation, the promotional aspects of the Equality Act are yet to come into operation. This article focuses on the reactive provisions of the Equality Act by providing a snapshot of the work of selected South African equality courts for the period from June 2003 to December 2007 insofar as complaints of racism are concerned. In order to contextualise the application of the Equality Act, the article provides a brief overview of the reactive provisions of the Equality Act and the mechanisms for its enforcement.
- Full Text: false
- Date Issued: 2011
The South African constitutional court and the rule of law: the Masethla judgment, a cause for concern?
- Authors: Krüger, Rósaan
- Date: 2010
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68930 , vital:29340 , http://ref.scielo.org/22p54n
- Description: Publisher version , The rule of law as a foundational constitutional value constrains the exercise of public power but the precise limits of the constraints it sets are not well defined. In Masethla v President of the Republic of South Africa, the majority of the Constitutional Court opted for an interpretation of this value that frees the President from adherence to the demands of procedural fairness when exercising certain constitutional powers. This note will investigate the soundness of that interpretation against the background of theoretical expositions of the rule of law and earlier Constitutional Court judgments.
- Full Text:
- Date Issued: 2010
- Authors: Krüger, Rósaan
- Date: 2010
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68930 , vital:29340 , http://ref.scielo.org/22p54n
- Description: Publisher version , The rule of law as a foundational constitutional value constrains the exercise of public power but the precise limits of the constraints it sets are not well defined. In Masethla v President of the Republic of South Africa, the majority of the Constitutional Court opted for an interpretation of this value that frees the President from adherence to the demands of procedural fairness when exercising certain constitutional powers. This note will investigate the soundness of that interpretation against the background of theoretical expositions of the rule of law and earlier Constitutional Court judgments.
- Full Text:
- Date Issued: 2010
Of fences and peace between neighbours
- Authors: Krüger, Rósaan
- Date: 2009
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68909 , vital:29338 , https://hdl.handle.net/10520/EJC85309
- Description: Publisher version , The speaker in the poem "Mending Wall" by American poet Robert Frost questions the wisdom of the saying that "Good Fences Make Good Neighbo[u]rs" (1914 North of Boston lines 27 and 45). The walls or fences referred to in the poem represent more than just physical barriers separating adjacent premises; the speaker sees them as representing obstacles to communication and friendship between individuals. Seen from the perspective of the speaker, a fence or wall is a "bad" thing. But the speaker is but one of the parties to the neighbourly relationship. For the speaker's neighbour, a wall or a fence is "a protector of privacy" (Watson "Frost's Wall : The View from the Other Side" 1971 44 The New England Quarterly 653 655). Thus there are two views on walls or fences: they can be seen negatively as obstructing good relations, or positively as dividers that secure good relations between neighbours by separating them and protecting their privacy rights.
- Full Text: false
- Date Issued: 2009
- Authors: Krüger, Rósaan
- Date: 2009
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68909 , vital:29338 , https://hdl.handle.net/10520/EJC85309
- Description: Publisher version , The speaker in the poem "Mending Wall" by American poet Robert Frost questions the wisdom of the saying that "Good Fences Make Good Neighbo[u]rs" (1914 North of Boston lines 27 and 45). The walls or fences referred to in the poem represent more than just physical barriers separating adjacent premises; the speaker sees them as representing obstacles to communication and friendship between individuals. Seen from the perspective of the speaker, a fence or wall is a "bad" thing. But the speaker is but one of the parties to the neighbourly relationship. For the speaker's neighbour, a wall or a fence is "a protector of privacy" (Watson "Frost's Wall : The View from the Other Side" 1971 44 The New England Quarterly 653 655). Thus there are two views on walls or fences: they can be seen negatively as obstructing good relations, or positively as dividers that secure good relations between neighbours by separating them and protecting their privacy rights.
- Full Text: false
- Date Issued: 2009
Racism and law : implementing the right to equality in selected South African equality courts
- Authors: Krüger, Rósaan
- Date: 2009
- Subjects: South Africa Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 , Equality -- South Africa , Discrimination -- Law and legislation -- South Africa , Racism -- Law and legislation -- South Africa , Apartheid -- Law and legislation -- South Africa , Constitutional law -- South Africa , South Africa -- Politics and government -- 1994-
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3677 , http://hdl.handle.net/10962/d1003192 , South Africa Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 , Equality -- South Africa , Discrimination -- Law and legislation -- South Africa , Racism -- Law and legislation -- South Africa , Apartheid -- Law and legislation -- South Africa , Constitutional law -- South Africa , South Africa -- Politics and government -- 1994-
- Description: Racism has informed South African society since colonial times. Racist beliefs found expression in the laws of colonial and apartheid South Africa and shaped both state and society. The constitutional state that South Africa has become since 1994, is based on the values of ‘human dignity’, ‘the achievement of equality’ and ‘nonracialism’, among others. Law formed the basis of the racist state prior to 1994, and now law has a fundamental role to play in the transformation of the state and society in an egalitarian direction by addressing socio-economic inequalities on the one hand, and by changing patterns of behaviour based on racist beliefs forged in the past, on the other. This thesis examines one of the legal instruments that is intended to contribute to transformation in the latter sense, namely the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act), with specific reference to the issue of racism. The provisions of this Act and the framework for its operation against the background of South Africa’s racist past, and within the broader framework of international and constitutional law, are examined. These two legal frameworks are analysed for the purpose of determining the standards set by international and constitutional law regarding racial equality in order to determine whether the Equality Act measures up. This thesis also incorporates an analysis of the practical application of the provisions of the Equality Act to complaints of racism in selected equality courts. The theoretical analysis of the Act’s provisions and their application in the equality courts point to various problematic formulations and obstacles which negatively affect the application of the provisions and thus hamper social change. The thesis concludes with recommendations for refining the Act’s provisions and its application.
- Full Text:
- Date Issued: 2009
- Authors: Krüger, Rósaan
- Date: 2009
- Subjects: South Africa Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 , Equality -- South Africa , Discrimination -- Law and legislation -- South Africa , Racism -- Law and legislation -- South Africa , Apartheid -- Law and legislation -- South Africa , Constitutional law -- South Africa , South Africa -- Politics and government -- 1994-
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3677 , http://hdl.handle.net/10962/d1003192 , South Africa Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 , Equality -- South Africa , Discrimination -- Law and legislation -- South Africa , Racism -- Law and legislation -- South Africa , Apartheid -- Law and legislation -- South Africa , Constitutional law -- South Africa , South Africa -- Politics and government -- 1994-
- Description: Racism has informed South African society since colonial times. Racist beliefs found expression in the laws of colonial and apartheid South Africa and shaped both state and society. The constitutional state that South Africa has become since 1994, is based on the values of ‘human dignity’, ‘the achievement of equality’ and ‘nonracialism’, among others. Law formed the basis of the racist state prior to 1994, and now law has a fundamental role to play in the transformation of the state and society in an egalitarian direction by addressing socio-economic inequalities on the one hand, and by changing patterns of behaviour based on racist beliefs forged in the past, on the other. This thesis examines one of the legal instruments that is intended to contribute to transformation in the latter sense, namely the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act), with specific reference to the issue of racism. The provisions of this Act and the framework for its operation against the background of South Africa’s racist past, and within the broader framework of international and constitutional law, are examined. These two legal frameworks are analysed for the purpose of determining the standards set by international and constitutional law regarding racial equality in order to determine whether the Equality Act measures up. This thesis also incorporates an analysis of the practical application of the provisions of the Equality Act to complaints of racism in selected equality courts. The theoretical analysis of the Act’s provisions and their application in the equality courts point to various problematic formulations and obstacles which negatively affect the application of the provisions and thus hamper social change. The thesis concludes with recommendations for refining the Act’s provisions and its application.
- Full Text:
- Date Issued: 2009
Sex work from a feminist perspective: a visit to the Jordan case
- Authors: Krüger, Rósaan
- Date: 2004
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68877 , vital:29335 , https://doi.org/10.1080/19962126.2004.11864812
- Description: Publisher version , Introduction: Contributors to the prostitution/sex work debate, whether they condone, support or oppose criminalisation, legalisation or decriminalisation of prostitution, often rely on ‘facts’ to support their arguments. A common fact is that the majority of prostitutes/sex workers in the world and in South Africa are women. Thus, when I refer to prostitutes/sex workers, I refer to women working as prostitutes in the commercial sex industry. Furthermore, the fact that the majority of sex workers are women justifies considering prostitution from a feminist perspective – women’s voices on the subject should be heard. In this note I shall use the terms ‘prostitution’ and ‘sex work’ to refer to the exchange of sexual services for money. The former, more conventional term has a negative connotation, while the term ‘sex work’ denotes a movement away from casting a moral judgment towards recognition that sex work is just another job. References will be made to the associated activities of brothel-keeping and pimping, but the focus of this note is mainly on the provision of sexual services by the prostitute/ sex worker herself. Jordan v S is a Constitutional Court judgment in which the constitutional validity of the criminalisation of prostitution and its related activities were challenged. In order to analyse this judgment from a feminist perspective, I shall first briefly set out the current legal position on prostitution. Thereafter, I shall give an overview of Western feminist perspectives on prostitution and then link this perspective with African feminism. The last part of the note will be an analysis of the Jordan judgment in light of the feminist perspectives identified before.
- Full Text: false
- Date Issued: 2004
- Authors: Krüger, Rósaan
- Date: 2004
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68877 , vital:29335 , https://doi.org/10.1080/19962126.2004.11864812
- Description: Publisher version , Introduction: Contributors to the prostitution/sex work debate, whether they condone, support or oppose criminalisation, legalisation or decriminalisation of prostitution, often rely on ‘facts’ to support their arguments. A common fact is that the majority of prostitutes/sex workers in the world and in South Africa are women. Thus, when I refer to prostitutes/sex workers, I refer to women working as prostitutes in the commercial sex industry. Furthermore, the fact that the majority of sex workers are women justifies considering prostitution from a feminist perspective – women’s voices on the subject should be heard. In this note I shall use the terms ‘prostitution’ and ‘sex work’ to refer to the exchange of sexual services for money. The former, more conventional term has a negative connotation, while the term ‘sex work’ denotes a movement away from casting a moral judgment towards recognition that sex work is just another job. References will be made to the associated activities of brothel-keeping and pimping, but the focus of this note is mainly on the provision of sexual services by the prostitute/ sex worker herself. Jordan v S is a Constitutional Court judgment in which the constitutional validity of the criminalisation of prostitution and its related activities were challenged. In order to analyse this judgment from a feminist perspective, I shall first briefly set out the current legal position on prostitution. Thereafter, I shall give an overview of Western feminist perspectives on prostitution and then link this perspective with African feminism. The last part of the note will be an analysis of the Jordan judgment in light of the feminist perspectives identified before.
- Full Text: false
- Date Issued: 2004
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