FORUM CONTRIBUTION: South African court rules on the state's obligation to prevent mother-to-child transmission of HIV In Treatment Action Campaign and Others v Minister of Health and Others 2002 (4) BCLR 356 (T) the Pretoria High Court found in favour of the Treatment Action Campaign and others and against the Minister of Health on the issue of mother-to-child HIV transmission. The steps taken by the state in this regard, it was held, were not in compliance with its duty to take reasonable measures to achieve the progressive realisation of the right to access to health care services.On appeal, the Constitutional Court in Minister of Health and Others v Treatment Action Campaign and Others (1) 2002 (10) BCLR 1033 (CC) similarly found that existing state policy fell short of the constitutional standard and ordered the state to ôdevise and implement within its available resources a comprehensive and co-ordinated programme to realise progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV. Geoff Budlender, who acted as attorney for the applicants in the High Court and subsequently in the Constitutional Court, provides a brief comment on the context and controversies surrounding the justiciability of socio-economic rights.Download full text.
FORUM CONTRIBUTION: Promoting FOCAC more maturely in the next decade - p 500 The Forum on China-African Cooperation (FOCAC) has entered its second decade. Though the political driving force remains vital, development towards a more mature, long-term stable and effective cooperation mechanism and organisation has become unavoidable.The article argues that suitable forms of institutionalisation include establishing a joint FOCAC Council of Ministers, a Joint Secretariat, a Committee of Ambassadors and a Joint Consultative Assembly with sub-commissions. It also proposes the need for entering into a basic cooperation agreement with legal force and strengthening the development of Sino-African NGOs.Download full text.
FORUM CONTRIBUTION: Towards a more activist parliament more engaged with civil society - F1 This contribution consists of the edited text of a speech delivered by Yunis Carrim at the launch of the Community Law Centre’s Parliamentary Programme in Cape Town on 20 October 2010, and is reproduced here because of the importance of the issues it addresses in the context of South Africa’s evolving democratic practice.The central conclusion is that "neither Parliament nor civil society organisations are sufficiently recognising the value of effective engagement between them. Yet if they worked creatively together they would be able to put the executive under more pressure to deliver more effectively. ... The state alone cannot ensure a significant improvement in service delivery and development. ... So new opportunities are opening up for a more active role for civil society organisations. Let us make creative use of this. It’s over as much to you as it is to Parliament to do so. Are you up to it?"Download full text.
FORUM CONTRIBUTION: Labor Law for the 21 st century: Stalled reform in the United States This document by Karl Klare, an eminent labour law scholar and one of the originators of the critical legal studies tradition in the USA, is a slightly shortened version of his submission to the Dunlop Commission, appointed by President Clinton to investigate the future of management-labour relations in the USA. Critically reviewing the development of the US system of collective bargaining, Klare elaborates a more general analysis of the role of labour law at the close of the 20th century.From a South African perspective, it highlights the advances in labour rights embodied in the LRA, but also helps to identify areas where further innovation may be called for. It offers a challenging framework for evaluating the debate surrounding the LRA and other labour statutes in this country.Download full text.
FORUM CONTRIBUTION: African case law review Sam Rugege's report on recent cases of interest to the African continent focuses on one of the recent Zimbabwean land invasion cases, highlighting the tension between a court system seeking to maintain the rule of law and an executive resistant to it. It also discusses a case relating to the customary law of succession in South Africa.
FORUM CONTRIBUTION: Communications before the African Commission on Human and Peoples' Rights 1988-2002 This article gives an overview of the work of the African Commission on Human and Peoples' Rights with regard to individual communications from its first decision in 1988 until the end of 2002. The African Commission on Human and Peoples' Rights was established in 1987 after the entry into force of the African Charter on Human and Peoples' Rights in 1986.The Commission received its first individual complaint in 1987 but did not take a decision on it until October 1988. By the end of 2002 the Commission had taken around 100 decisions on communications submitted to it under the individual communlcations procedureDownload full text.
FORUM CONTRIBUTION: Get rights right in the interests of security of tenure Review of Land, Power & Custom: Controversies Generated by South Africa’s Communal Land Rights Act, edited by Aninka Claassens & Ben Cousins; xv and pp 392 with accompanying DVD. Legal Resources Centre & UCT Press, Cape Town, 2008 Ann Pope gives a detailed overview of a book on a topic that has assumed critical importance in South Africa and, at the same time, analyses and comments on difficulties and dilemmas that have been encountered in securing indigenous land rights.The book was collated following the enactment of the Communal Land Rights Act 11 of 2004 and the Traditional Leadership and Governance Framework Act 41 of 2003, in preparation for a challenge to the constitutionality of the former Act by alleging that it “undermines the rights of rural people to make them less secure than before”. Judgment in Tongoane and Others v National Minister for Agriculture and Land Affairs and Others (11678/2006) [2009] ZAGPPHC 127 (30 October 2009) has since been delivered, its findings being mostly in favour of the applicants. An analysis of the judgment is followed by further reflection on a number of issues. The discussion shows that, while the applicants in Tongoane can rightly claim victory for succeeding in having several provisions of the CLRA declared unconstitutional, important questions remain unanswered. The author suggests that the implications of such omissions will need careful and thoughtful treatment by the Constitutional Court during the confirmation hearing at the beginning of March 2010. At the time of publication the judgment in this hearing was not yet available.Download full text.
FORUM CONTRIBUTION: Enforcement difficulties in the public and private sectors John Brown examines the enforcement of CCMA arbitration awards in terms of the LRA, as well as the enforcement of private arbitration awards in terms of the Arbitration Act of 1965. The author analyses relevant case law and highlights the real practical difficulties facing worker litigants in enforcing arbitration awards in their favour. ”.The final section of the article deals with the enforcement of collective agreements and settlement agreements. The essential role of bargaining councils in monitoring and enforcing collective agreements is also highlighted. The article concludes that “[t]he challenge facing the labour movement is to equip its organisers with the legal knowledge and drafting skills to negotiate and draft agreements which best promote the interests of workers and avoid legal pitfalls when trying to enforce agreements which are challenged by an employerDownload full text.
FORUM CONTRIBUTION: A summary of some cases on HIV/AIDS Sam Rugege provides concise commentary on two important recent judgments involving discrimination on the basis of H!V/AIDS. The first is a decision by the South African Constitutional Court in Hoffmann v South AJrican Airways [2000] I I BCLR 121 1 (CC) based on the constitutional equality clause.This case raised important issues relating to the extent to which employers can justify discrimination on the basis of the requirements of a job or the perceived prejudices of the public. In addition. novel questions arose in relation to the appropriate remedy for unfair discrimination in cases where an employer has refused to employ applicants on the basis of their HIV status. The second case is a decision of the Namibian Labour Court in N v Minister of DeJence (2000) 21 ILJ 999 (NmLC). The applicant in this case was refused employment in the Defence Force because he tested HIV positive. The court found that this constituted unfair discrimination as envisaged by the Namibian Labour Act of 1992 and ordered the applicantÆs enlistment subject to a medical test.Download full text.
FORUM CONTRIBUTION: Fair trial rights, freedom of the press, the principle of “open justice” and the power of the Supreme Court of Appeal to regulate its own process In this case study Wium de Villiers discusses the Constitutional Court’s endorsement of the SCA decision in SABC Ltd v National DPP and Others, to the effect that it would only allow Shabir Shaik’s application for leave to appeal to be broadcast if it was satisfied that it would not inhibit justice.Professor de Villiers argues that section 12 of the Constitution should be recognised as a generic residual due process right, analogous to that of section 7 of the Canadian Charter of Rights and Freedoms, which would lead to a substantial reduction in the inconsistencies in the Constitutional Court’s jurisprudence revealed by that decision.Download full text.
