FORUM CONTRIBUTION: The plight of domestic workers: The elusiveness of access to adequate housing South Africa’s transformative Constitution calls for a holistic approach to realising the right to human dignity. To marginalised groups, such as domestic workers, this right is not confined to achieving better wages and working conditions; it touches every aspect of their lives. Central to this endeavour is the quest for adequate housing. This article discusses the experience of a housing cooperative consisting predominantly of domestic workers in campaigning for adequate housing, especially at local government level, as part of the struggle to achieve a secure and dignified existence. While identifying formidable obstacles, it also shows the interconnectedness of the various challenges and the need for a integrated approach in addressing them.Download 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: 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: The growing informalisation of work: Challenges for labour Rudi Dicks discusses the South African phenomenon of “informalisation” of the workforce, which is characterised by workers shifting from permanent employment to casualised and fixed-term contracts, outsourcing and employment through labour brokers.These forms of employment are accompanied by, lack of job security, undermining of basic conditions of employment, erosion of workplace rights and decreasing access to skills and equity at work. The author considers the effects of the process and concludes by suggesting measures to provide legislative protection to vulnerable workers, including the establishment of a tripartite statutory body to regulate labour brokers; the development of a code of good practice for workers engaged in atypical employment contracts and improving monitoring and enforcement mechanisms through tougher penalties.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: 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.
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: 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: 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.
