Law, Democracy
& Development
Law, Democracy
& Development
JOURNAL OF THE FACULTY OF LAW | UNIVERSITY OF THE WESTERN CAPE | ISSN: 2077-4907JOURNAL OF THE FACULTY OF LAW, UWC | ISSN: 2077-4907
Author/s: The Editors
Author/s: Hye-Young, Lim and Ramaroson, Mianko
In a further review of the emerging human rights jurisprudence generated by African human rights bodies, Lim Hye-Young and Mianko Ramarosen discuss some of the recent opinions issued by the African Commission on Human and Peoples Rights. These opinions are of particular importance given the recent establishment of the African Court on Human and Peoples Rights, which will most probably draw on the jurisprudence developed by the African Commission.
Author/s: Sarkin, Jeremy et al.
Jeremy Sarkin and Giulia Dal Co seek to develop, mainly through historical and international analysis, a model of reconciliation and peace and security between states. This analysis adds to the international discourse on transitional justice that has gained momentum in recent years through the creation of institutions (international and domestic) aimed at establishing individual criminal liability for human rights violations and reconciliation through truth commissions. The authors remind us that there is also an interstate dimension to reconciliation, rooted in history and with present-day consequences relevant for international law and politics and, ultimately, for human rights and stability. This article is being published in two parts, the first part of which appeared in the previous issue of this journal.
Author/s: Van der Burg, Anthea
The article considers whether the treatment of undocumented foreign migrant children in South Africa conforms to the requirements of international law and the South African Constitution. The author points out that South Africa has ratified several international treaties which contain specific provisions protecting undocumented foreign migrant children. She also points to the strong protection of such children afforded by the South African Constitution and discusses cases where government officials were ordered to change the way in which the department treated undocumented foreign migrant children. She concludes that, while a strong legal framework is in place to protect these vulnerable children from abuse and maltreatment, problems arise in practice when government officials fail to adhere to these standards. Better training of officials, it is suggested, will go a long way in addressing some of these concerns.
Author/s: Chirwa, Danwood Mzikenge
Danwood Chirwa tackles the possible horizontal application of constitutional rights from a comparative perspective. In a world in which private actors often exert enormous influence, it is not surprising that a trend has emerged to extend the protection of constitutional rights beyond the traditional sphere. The author points out that even traditional constitutions, such as those of the USA and Canada, recognise that private conduct may, in limited circumstances, fall within the reach of constitutional rights. The constitutions of both Ireland and South Africa explicitly permit the application of constitutional rights between non-state actors. Although there has been some controversy about the exact scope of the horizontal application in the South African literature, the author concludes that this should not lead to a limited role for the constitution and proposes a specific understanding of the South African Constitution in order to ensure this.
Author/s: Fitzpatrick, Peter
The article provides a provocative analysis of the emergence of the 'new constitutionalism'. The author argues that, in one of its forms, one finds an explicit instrumental subordination of democracy, human rights and the rule of law to the market, to deregulation and privatisation. This new constitutionalism is transforming core institutions of the traditional constitutional order in the direction of a technocratic state. The new constitutionalism follows the occidental template of the sovereign nation in an attempt to both ground and delimit the sovereign nation in its relation to the international. That claim enables the particular nation to assert some ultimate power over its domain. This claim to sovereignty is not seen as resistant to, or contradictory to, the subordination of tenets like democracy to neo-Iiberalism. The South African constitution, it is argued, does not escape this conundrum.
Author/s: Kruger, Rosaan
Section 27 of the South African Constitution guarantees 'for everyone' the right of access to social security, while section 9 prohibits unfair discrimination on any ground, including sex and gender. Rosaan Kruger examines whether the existing old age pension regime, which makes females eligible for state pensions at the age of 60 but males only at 65, contravenes these provisions. She argues that the original reasons for distinguishing between men and women in pension matters have largely fallen away and, if confronted with the question, a court will seriously have to consider the anti-discrimination imperative in deciding whether the distinction between old age pension grants is a reasonable limitation on the right of access to social security. Older men who might, but for the age differentiation, have qualified for an old age pension will be particularly vulnerable. Failure of the state to provide indigent men with access to old age pensions from the age of 60, it is concluded, should be viewed as unreasonable and unconstitutional.
Author/s: Asmal, Kader
LDD reader guidelines
Law, Democracy & Development (LDD) is an accredited journal - that is, approved by the Department of Education for the publication of subsidised research output. This means that the articles we publish are subject to stringent quality control. All articles, unless otherwise indicated, are peer-reviewed - that is, anonymously assessed by independent experts. In addition, we also publish reviews, commentaries or other contributions which the editors consider topical or important but which have not been subjected to the formal assessment process - for example, contributions by emerging researchers (such as those in our ALAD section), keynote speeches by leading commentators and the like. These non-refereed items are identified as Forum contributions.
LDD is an open-access journal. This means that copyright in all published material remains vested in the author thereof, but the author grants permission for the material to be made available freely on LDD’s website. The material may be quoted, downloaded and/or copied, subject to the following conditions:
Please therefore make full use of the articles contained in LDD for all academic, research or practical purposes – but kindly remember to cite the source so that others can also find it.
Privacy policy
In common with other websites, log files are stored on this website’s web server saving details such as the visitor’s IP address, browser type, referring page and time of visit. Cookies may be used to remember visitor preferences when interacting with the website. Where registration is required, the visitor’s email and a username will be stored on the server. Email addresses will not be sold, rented or leased to third parties. Emails may be sent to inform you of news of our services or offers by us or our affiliates. If you have subscribed to one of our services, you may unsubscribe by following the instructions included in emails that you receive.
Terms of service
All information contained in official UWC websites, and by extension those of the Faculty of Law, is provided for information purposes only and does not represent a legally binding contract between UWC and any person or entity. Information on official university websites is subject to change without prior notice. While every reasonable effort is made to present current and accurate information, UWC, and by extension the Faculty of Law, makes no guarantees of any kind. The LDD site may contain information that is created and managed by various sources, both internal and external to the University. Some online content exists in the form of forums containing the personal opinions and other expressions of the persons who post the entries. UWC promotes freedom of expression and therefore does not control, monitor or guarantee the information contained on these platforms, and does not endorse any views expressed therein. At no time shall UWC, and by extension the Faculty of Law, be responsible or liable, directly or indirectly, for any damage or loss resulting from or alleged to result from the use of or reliance on any such content.
Cookies policy
We use cookies and related technologies on our website. Cookies are small data files that are served by our platform and stored on your device. Our site uses cookies dropped by us or third parties for a variety of purposes including to operate and personalise the website. Our website employs the use the various third-party services. Through the use of our website, these services may place anonymous cookies on the visitor's browser and may send their own cookies to the visitor's cookie file. Some of these services may include, but are not limited to, Google, Facebook, Twitter and other social networks, security firewalls, analytics companies, and service providers. These services may also collect and use anonymous identifiers such as IP Address, HTTP Referrer, Unique Device Identifier and other non-personally identifiable information and server logs.