FORUM CONTRIBUTION: Commentary on communications decided by the African Commission on Human and Peoples’ Rights in 2004
Waruguru Kaguongo reports on issues arising from decisions handed down by the African Commission on Human and Peoples’ Rights in 2004. A total of 12 communications were considered in that year, with seven communications being decided on the merits. .The article is divided into two main sections: issues implicit in the determination of admissibility, and those arising from consideration of the merits. On admissibility, the most often considered criterion was the requirement to exhaust local remedies. In determining compliance with this criterion, it is argued, the Commission displayed consistency with its previous jurisprudence. The exhaustion of local remedies, however, tended to take precedence over the other criteria and, it is suggested, the Commission failed to take the opportunity to further elaborate on the application of other criteria. In the relation to the merits, the author argues that the communications raised issue relating to evidence and the lack of consistency in how it affects decisions; the limitation of rights; the role of the Commission versus national jurisdictions; fair trial guarantees; interpretation of international treaties and the administrative capacity of the Commission and its effect on decisionsDownload full text.
FORUM CONTRIBUTION: Ten years of the CCMA – An assessment for labour
Ronald Bernikow examines certain key areas of the CCMA’s operations and the challenges it faces within the broader context of our labour laws. The article deals with the current state of CCMA service delivery as well as the debate over what has been termed the “over-proceduralisation” of dispute resolution at the CCMA.It discusses areas where the CCMA can, from the perspective of labour, be said to be performing well, as well as pointing to various shortcomings or gaps in the statutory dispute resolution framework. It concludes that the CCMA is a legitimate and important institution that has promoted a common industrial citizenship and provided a platform for confronting future challenges.Download full text.
FORUM CONTRIBUTION: A New Constitution and a Bill of Rights
Deputy Chief Justice Pius Langa argues that, while the advent of the constitutional era is very significant, the Constitution is only a guideline for nurturing the life of the nation. With rights go responsibilities.Being able to exercise our rights also requires us to respect the rights of others. The courts, legislature and executive can create the space for citizens to engage with the project of building a new society, but it is up to the citizens to work with others to create the kind of society in which all the people are able to maximise their personal potential and fully enjoy their rightsDownload full text.
FORUM CONTRIBUTION: Comment on the Code of Good Practice: Key Aspects of HIV/AIDS and Employment
Drawing on their experience in drafting an HIV/AIDS workplace policy for the University of the Western Cape, Tania Vergnani and Nikki Schaay reflect on the Code of Good Practice: Key Aspects of HIV/AIDS and Employment in terms of its ability to assist in defining and refining HIV/AIDS policies. They conclude that the Code takes a limited view of workplace responsibility and advocate that employers should play a greater, more pro-active role in the prevention of the spread of the disease and of discrimination, as well as in providing treatment for those living with HIV/AIDS.Download full text.
FORUM CONTRIBUTION: A summary of some recent cases of interest to the African continent
Sam Rugege discusses a few recent cases dealing with issues of African continental interest. These include the right of defence force members to join trade unions and to participate in protest action (South Africa); the right of the press to freedom of expression and the duty to inform the public on matters of public interest (Zimbabwe); the right of prisoners to vote in national elections (South Africa); the right of a citizen spouse to have her foreign spouse live permanently with her in her home country (Zimbabwe); the power of the National Assembly to suspend a member of the assembly and the right of a member to freedom of expression (South Africa); and succession rights in African kingdoms in the era of republican democracy (Uganda).Download full text.
FORUM CONTRIBUTION: The need for a human rights culture
In celebration of Human Rights Day, Minister of Finance Trevor Manuel delivered the 4th Dullah Omar Memorial Lecture on 20 March 2007. The lecture examines the notions of “continuity” and “change” in the human rights context in South Africa’s recent history.Dealing with specific challenges against the backdrop of our Constitution, he criticises problems such as corruption and concludes that more must be done to address them. Minister Manuel also discusses the importance of a culture of human rights as well as the challenges faced by South Africa in its struggle to build such a culture, and advances recommendations on how to achieve these objectives.Download full text.
FORUM CONTRIBUTION: Be careful what you wish for…?
Roger Ronnie draws a balance sheet of the position of the trade union movement today. While analysing trade unions as organisations dealing with more than simply wages and employment conditions, the author also considers their political limitations and assesses the gains and losses flowing from the 1995 LRA from a trade union perspective.In particular, the advent and growing entrenchment of “trade union legalism” within South Africa’s capitalist system is highlighted. The article concludes by making recommendations on how trade unions can try to avoid these pitfalls and promote the rights of workers more effectively.Download full text.
FORUM CONTRIBUTION: The principle of legality in constitutional matters with reference to Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC)
This article, co-authored by LLB student Lesega Mnguni and Justin Muller as part of our ALAD programme (see Who We Are) deals with the principle of legality as enunciated in Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC). In this matter an accused person was charged with rape after committing a grossly indecent sexual assault on a nine-year-old girl.Although the act in question did not fall within the common law definition of rape, the Regional Court felt justified in developing the common law definition in terms of section 39 of the Constitution to include the act in question and duly convicted the accused. The High Court upheld this decision. The article examines the reasoning of the Constitutional Court in determining the meaning of the principle of legality and applying the right to non-retrospective punishment, as entrenched in section 35(3)(l) and (n) of the Constitution, under extremely sensitive and challenging circumstances.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.