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: 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: 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 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: 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: 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)  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: 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.