>> Volume 11(2) (2007)

Editorial 2007 (2), pp 11-15

Author/s: The Editors

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Discrimination based on HIV/AIDS status, pp 133-151

Author/s: Durojaye, Ebenezer

Ebenezer Durojaye considers the judgment in the Nigerian case of 'Festus Odiafe and Ors and the Attorney General and Ors' relating to prisoners' right of access to HIV treatment in Nigeria. This was the first decided case dealing with HIV/AIDS in Nigeria. The author argues that, while the court was proactive in holding that failure by prison officials to provide treatment for the applicants who were HIV-positive was a violation of article 16 of the African Charter, the court failed to maintain the same momentum with regard to whether this act amounted to discrimination under Nigerian law. It is also argued that the failure of the court to explore international law standards and to consider decisions from other Commonwealth countries in arriving at its decision was a shortcoming on the part of the court.

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The right to freedom of religion: An apparently misunderstood aspect of legal diversity in South Africa, pp 121-131

Author/s: Mofokeng, Lesala L

Lesala Mofokeng provides a detailed discussion of the definition of legal pluralism which, according to him, has the same meaning as 'legal diversity'. He argues that despite the fact that everyone has a right to freedom of religion under section 15 of the Constitution, the section does not adequately afford people the right to practice their religions freely. In other words, the freedom of religion clause should be interpreted in a manner that would guarantee linguistic and religious communities the right to have their private law matters regulated in accordance with the personal laws of their choice, provided they do not conflict with the spirit and values of the Constitution. The author concludes by providing a comparative analysis of foreign legal systems in order to identify a suitable model concerning the incorporation of legal pluralism into South African law.

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Safe as houses? Balancing a mortgagee’s security interest with a homeowner’s security of tenure, pp 101-119

Author/s: Steyn, Lee

Lee Steyn argues that a balance is needed between a mortgagee's security interest and a homeowner's security of tenure. This is because the Constitutional Court, in 'Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others '2005 (2) SA 140 (CC), set aside the sale in execution of the immovable properties of the appellants on the basis that it amounted to an unjustifiable infringement of their right to have access to adequate housing in terms of section 26 of the Constitution. Following this, a number of reported cases have dealt with the issue whether the sale in execution of mortgaged property may constitute an infringement of the mortgagor's section 26 rights and, if so, whether such infringement is justifiable in terms of section 36 of the Constitution. The author highlights the need for appropriate principles, policies and processes to be applied when a mortgagee seeks the sale in execution of a defaulting mortgagor's home in order to provide a framework within which the required balance between a mortgagee's security interest and a homeowner's security of tenure can be struck. Insufficient predictability may lead to reluctance on the part of potential mortgagees to provide finance, which may well create the very 'poverty trap' which the Constitutional Court sought to avoid in the 'Jaftha 'case.

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Taking those with special housing needs from the doldrums of neglect, pp 1-18

Author/s: Chenwi, Lilian

Lilian Chenwi deals with the need for an approach to housing that takes special needs into account. Millions of people in South Africa do not have access to adequate housing, among them many individuals and households with special needs. South Africa has been hailed for its progressive housing laws, jurisprudence and programmes. However, policies dealing with special needs housing are poorly developed and inadequate. Considering that there is a legal and socio-economic basis for providing special needs housing, the author concludes that the absence of a comprehensive and coherent policy around this issue constitutes a 'prima facie 'violation of the right to access to adequate housing. To take those with special housing needs from the doldrums of neglect, the author recommends that the national and provincial governments develop and implement appropriate, comprehensive and coherent policies addressing this need.

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From individual protection to recognition of relationships: Same-sex couples and the South African experience of sexual orientation reform, pp 19-46

Author/s: Jivan, Usha

Usha Jivan explores the legal discourse about equality, in particular homosexual equality, and illustrates how it has traversed sites that may be labelled condemnation, compassion, condonation and celebration. In the pre-democratic era homosexuality was dealt with in the harshest manner. Since the advent of the new Constitution the courts have provided protection to individuals in a series of cases, allowing people in same-sex life partnerships to be treated the same as spouses for various purposes. In all these cases the courts have shown compassion for same-sex life partnerships where such couples have conducted themselves in ways that replicate heterosexual marriage. Profound shifts took place in our legal landscape following the demand for the right to same-sex marriage as a means of celebrating such unions. This resulted in the Civil Union Act of 2006 which provides for the registration of civil unions, by way of either a marriage or civil partnership, between two persons.' However, the author submits that the Act is merely an attempt to pacify gay and lesbian people by allowing them to call their union a marriage if they so wish. A compromise solution falls short of true celebration and hence, of full equality.

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The impact of development on the environment as part and parcel of integrated development planning?, pp 57-79

Author/s: Van Wyk, Jeannie

Jeannie Van Wyk argues that land use planning and environmental issues do not and cannot exist independently of one another. Many examples exist of proposed developments where both these issues were relevant in deciding whether or not to permit them. In South Africa different statutes set out procedures to obtain permission to proceed with a proposed development. This results in uncertainty as to which procedures apply in a particular case. Given different sectoral statutes as well, the question arises whether it is not desirable to make an investigation into the impact of development on the environment part of the process of integrated development planning. Some of the statutes which regulate aspects of both development and the environment are examined, with the different procedures set out. The conclusion is that an integrated, holistic approach which harmonises all the planning processes and institutions is more desirable than the fragmented, sectoral approach that is largely being followed at present. Such an integrated approach could be part and parcel of integrated development planning.

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(Illicit) transfer by De Gree, pp 81-100

Author/s: Sloth-Nielsen, Julia and Mezmur, Benyam

Julia Sloth-Nielsen and Benyam Mezmur provide a detailed discussion of the decision of the Supreme Court of Appeal (SCA) in 'De Gree v Webb '[2007] SCA 87 (RSA), in which they examine the fundamental principles applicable to the international transfer of children via the adoption process. The article dissects the role of the Court in giving effect to the treaty obligations arising from South Africa's ratification of the Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption (1993) (hereafter 'the Hague Convention') and considers the suitability of a guardianship application to the High Court as the first step in an international adoption. The authors argue that the minority judgments misconceive the nature of the Hague principles and that even the majority judgments do not fully explain why the alleged conflict with international law provisions renders a guardianship procedure in this context fatally flawed. They contend that the principle of subsidiarity, whilst remaining at the heart of the international law framework, was overemphasised in the minority judgments at the expense of other overarching principles relevant to inter-country adoption. The article concludes that conferring parental status on a prospective adoptive parent via a guardianship order violates fundamental constitutional principles and policy considerations, and that sanctioning this avenue even temporarily is unwarranted.

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FORUM CONTRIBUTION: Commentary on communications decided by the African Commission on Human and Peoples’ Rights in 2004, pp 153-171

Author/s: Kaguongo, Waraguru

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 decisions

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Editorial 2007 (2) (French), pp 16-20

Author/s: The Editors

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Ethics and the problem of evil: S v Makwanyane, pp 47-56

Author/s: Boshoff, Anel

In S v Makwanyane & Another, the accused, Makwanyane and Mchunu, were convicted by the court a quo on four counts of murder, one count of attempted murder and robbery with aggravating circumstances. Upon appeal the Appellate Division came to the conclusion that the circumstances of the murders were such that the accused should receive the heaviest sentence permissible by law, at that stage, the death penalty. In the Constitutional Court Kentridge J described the acts of the accused as 'murders of horrifying callousness motivated by nothing but greed'. Although the Makwanyane case is generally regarded as a landmark decision in South African legal history, the facts are sadly, in general terms, neither new nor unique. Throughout most of human history, it has been the difficult and distressing task of judges to deal with inhuman acts committed by humans and to make decisions about the fate of those members of society who have committed 'evil' acts. Historically, this judgment upon evil is the traditional, perhaps most traditional, duty of judges. It may therefore be fitting that the Constitutional Court started its career performing this rather unenviable but time-honoured function.

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