Late last year the Constitutional Court of South Africa decided that the exclusion of same-sex couples from the common law definition of marriage and the statutory marriage formula was unconstitutional as it violated the rights of such couples to equality. The Court suspended the declaration of invalidity for one year to allow Parliament to enact new legislation to correct the defects, failing which certain words would be read into the legislation to accommodate same-sex marriage. A (...) single judge dissented on the issue of remedy, finding that the Court should have developed the common law to include same-sex couples within the definition of marriage and read the necessary wording into the legislation with immediate effect. The decision is the culmination of a legal struggle by gays and lesbians for recognition of their relationships and the protection of their rights. While the scope of the right to marry may have been extended, the rights of domestic partners lag behind, often to the detriment of women in these relationships. (shrink)

Inside the Constitutional Court of South Africa hangs Judith Mason’s artwork, entitled The Man Who Sang and the Woman Who Kept Silent, more commonly known as The Blue Dress. Mason created the artwork to commemorate Phila Ndwandwe and Harold Sefola after hearing testimony from the perpetrators of their deaths at the South African Truth and Reconciliation Commission (TRC). In this article I explore how The Blue Dress contributes to the reimagining of human rights culture in (...) South Africa in three key ways. First, the artwork is a symbolic reparation that recognizes the harm suffered under apartheid. Second, the artwork is an alternative record of women’s experiences of sexual violence; experiences which are largely absent from the official TRC record. Third, the artwork is a form of judicial consciousness which keeps the past alive so that a different future can be imagined. I argue that The Blue Dress instantiates an “ethics of responsibility” in post-apartheid human rights discourse. That is, the responsibility to remember past violations of human rights in order to prevent future ones and the responsibility to recognize past triumphs of human rights in order to support future ones. The article draws on seven months of participant observation fieldwork at the Court, which included fifty-four interviews with judges, clerks, staff members, advocates, artists, curators, and visitors, as well as visual and archival research. (shrink)

With the struggle against apartheid achieved, South Africa faced the new struggle of overcoming the HIV/AIDS pandemic. This paper examines the response of government, the innovation system and civil society in rising to the challenge. The response included a fatal denialism concerning the etiology of AIDS, a fatalism that constitutes political market failure. This political market failure was counteracted through the emergence of social entrepreneurship in the form of the Treatment Action Campaign that mobilized civil society and like-minded (...) health practitioners and researchers within the innovation system. Dependency Theory coupled with a Quadruple Helix model of the innovation system offer possible explanations of this complex human tragedy and the way that government was compelled to embark on a massive program of providing anti-retroviral therapy that has now significantly improved life expectancy. The paper provides socio-economic context, appraisal of the innovation system, and a sketch of how the Quadruple Helix took form. Of special importance is the independence of South Africa’s ‘Republic of Science.’ Independent courts were critical in allowing TAC to obtain remedy against government, Big Pharma, and AIDS dissident scientists. It is argued that its Republic of Science met its obligation of objectivity by shifting emphasis to the cause of AIDS research in the face of official denialism. In effect, the system of innovation and social entrepreneurs are shown to have acted in concert in constituting a Quadruple Helix. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Diacritics 32.3-4 (2002) 33-59 [Access article in PDF] Amnesty or Impunity? A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC) Mahmood Mamdani The Truth and Reconciliation Commission of South Africa was the fruit of a political compromise whose terms both made possible the Commission and set the limits within which it would work. These limits, in turn, defined (...) the space available to the Commission to interpret its terms of reference and define its agenda. This paper takes the compromise legislation that set up the TRC as a historical given and focuses attention on the TRC's interpretation of its terms of reference.The TRC claimed to be different from its predecessors, whether in Latin America or Eastern Europe. It would practice neither impunity nor vengeance. It was therefore determined to avoid two pitfalls: on the one hand, reconciliation becoming an unprincipled embrace of political evil and, on the other hand, a pursuit of justice so relentless as to turn into revenge. To do so, the Commission was determined to address both "victims" and "perpetrators," not just one or the other.This double determination was first written into the interim constitution that paved the way for the legislation that set up the TRC. First, there would be no blanket amnesty. Amnesty would be conditional. It would not be a group amnesty. Every perpetrator would have to be identified individually, and would have to own up to his or her guilt—the truth—before receiving amnesty from legal prosecution. Second, any victim who is so acknowledged would give up the right to prosecute perpetrators in courts of law. Justice for the victim would thus not be criminal but restorative: acknowledgment would be followed by reparations. In sum, individual amnesty for the perpetrator, truth for the society, and acknowledgement and reparations for the victim—this was the pact built into the legislation that set up the TRC.Since the Act did not clearly define "victim," however, the definition of "perpetrator" was unclear as well. The task of defining "victim" and "perpetrator" was left to the Commission and was the single most important decision that determined the scope and depth of the Commission's work. Without a comprehensive acknowledgment of victims of apartheid, there would be only a limited identification of perpetrators and only a partial understanding of the legal regime that made possible the "crime against humanity." From this perspective, the paper identifies three key limitations in the Commission's Report.First, the TRC individualized the victims of apartheid. Though it acknowledged apartheid as a "crime against humanity" which targeted entire communities for ethnic and racial policing and cleansing, the Commission majority was reluctant to go beyond the formal acknowledgment. The Commission's analysis reduced apartheid from a relationship between the state and entire communities to one between the state and [End Page 33] individuals. Where entire communities were victims of gross violations of rights, the Commission acknowledged only individual victims. If the "crime against humanity" involved a targeting of entire communities for racial and ethnic cleansing and policing, individualizing the victim obliterated this particular—many would argue central—characteristic of apartheid. Limiting the definition of harm and remedy to individuals center-staged political activists as victims of apartheid, as indeed happened with the victim hearings. The consequence was to narrow the TRC perspective to a political reconciliation between state agents and political activists, individual members of a fractured political elite, rather than the "national unity and reconciliation" mandated by the legislation that set it up. To pursue its actual mandate, the TRC needed to broaden its perspective: to work for a social reconciliation between perpetrators and victims required that the relationship between the state and the entire South African people be addressed.Second, by focusing on individuals and obscuring the victimization of communities, the TRC was unable to highlight the bifurcated nature of apartheid as a form of power that governed natives differently from non-natives. If the apartheid state spoke the language of rights to... (shrink)

In 2002 the constitutionality of the Sexual Offences Act, which criminalizes the behaviour of sex workers but fails to punish their clients, was at issue in the South African Constitutional Court. The majority of the Court held that the legislation does not constitute indirect discrimination on the basis of gender. The minority judgment found indirect gender discrimination, but held that the legislation did not infringe upon sex workers’ rights to dignity and privacy. This note argues that (...) the reasoning in both the majority and minority judgments reflects and contributes to detrimental stereotypes of feminine sexuality, which, in turn, exacerbate women’s vulnerability to H.I.V. infection in South Africa. (shrink)

: In 1998, 39 pharmaceutical manufacturers sued the government of South Africa to prevent the implementation of a law designed to facilitate access to AIDS drugs at low cost. The companies accused South Africa, the country with the largest population of individuals living with HIV/AIDS in the world, of circumventing patent protections guaranteed by intellectual property rules that were included in the latest round of world trade agreements. The pharmaceutical companies dropped their lawsuit in the spring (...) of 2001 after an avalanche of negative publicity. Yet, despite the government's victory, AIDS drugs remain very expensive in South Africa, and the government still refuses to provide antiretroviral therapy to adults. These events have shone a spotlight, not only on the possibilities for coordinated political activism in the era of instant global communications, but also on the tangled social, economic, and political dimensions of AIDS treatment in poor countries. (shrink)

In 1998 Ghia Van Eeden was sexually assaulted by a serial rapist who had escaped from police custody due to the negligence of the South African police authorities. Claiming that the State owed a common law duty of care to potential victims to protect them from violent crimes, Van Eeden sought damages for the harm she had suffered. In a path-breaking decision, the Supreme Court of Appeal (S.C.A.) found that a duty of care did indeed exist and that (...) its execution had to be considered in line with the constitutional requirement to protect women's right to be free from violence and the constitutional obligation to develop the common law so as to promote the spirit, purport and objects of the South African Bill of Rights. Examining the Van Eeden decision in terms of its substantial development of the circumstances in which the State may be judged liable for a wrongful omission, this note positions the S.C.A.'s decision in the context of the evolving case law of the Constitutional Court on sexual violence and ultimately questions its practical significance for addressing the prevalent abuse of women in South Africa. (shrink)

South Africa is experiencing an HIV/AIDS epidemic of enormous proportions. The workplace, like all the other sectors, is adversely affected. The tendency of a significant proportion of employers has been to discriminate against employees and job applicants living with HIV/AIDS through use of HIV testing to exclude those that are HIV‐positive. In the case of Hoffmann v South African Airways, the Constitutional Court was asked to determine the constitutionality of excluding a job applicant on account (...) of an HIV‐positive status. The Court ruled in favour of the applicant and ordered instatement. Through an analysis of Hoffmann v South African Airways, the article examines how constitutional values are impacting on HIV/AIDS‐related ethics in the workplace. (shrink)

The case of the revocation of ordination from the two pastors by the Evangelical Lutheran Church in Southern Africa (hereafter, ELCSA) in the Gauteng Province, Pretoria, South Africa has motivated the present conversation. In order to respond appropriately to the scenario mentioned earlier, the research will dialogue with Paul’s teaching on spiritual gifts in Romans 11:29–32. The document released by the High Court of South Africa, Gauteng Division, Pretoria (hereafter, HCoSAP) ruled that ELCSA acted (...) against the law and ordered that the revocation of the ordination be reversed (Case No: 62810/2018). The study comprises three main layers as follows: (1) analysis of ordination in the biblical text, including a dialogue with Paul’s view of calling and spiritual gifts in 11:29–32, (2) a ruling by the HCoSAP, and (3) a critique of ELCSA. Documentary analysis, ethnography, and participant observation are employed as methodological approaches.Contribution: The contribution of this research is two-fold. Firstly, the readership in general and believing communities in particular should adhere to the rules of the game as prescribed by the biblical text so that they will mitigate both conflict and confrontation with other congregants. Secondly, the study aims to educate societies that no one is above the law. Members of the sacred institution can appear at the high court either when their constitutional right is violated or as suspects of crime. (shrink)

The topic of abortion was in the limelight again in Dobbs v Jackson, where the US Supreme Court overturned the decision of Roe v Wade, ‘which guaranteed women and pregnant people a constitutional right to abortion’. While not bound by the judgment, this gives us an opportunity to reflect on the current law in South Africa which regulates the termination of pregnancy. The primary piece of legislation which governs abortion is the Choice on Termination of Pregnancy (...) Act. Section 2 of the Act lists the grounds under which one may lawfully terminate a pregnancy. One of those grounds relates to the period of the 13th up until the 20th week of the gestation period, and states that if a medical practitioner, after consultation with the pregnant woman, is of the opinion that the continued pregnancy would significantly affect the social or economic circumstances of the woman, then the pregnancy may be lawfully terminated. The question is: What exactly is meant by ‘social grounds’? This article considers this aspect from a legal perspective and attempts to provide clarity on the issue, in the hope that this will be of assistance to medical practitioners who are concerned about the outcome of their actions, when assisting persons in this position. (shrink)

The purpose of this article is to address the questions as to whether a criminal conviction of a healthcare practitioner should affect his or her professional standing, and whether such conviction constitutes ‘unprofessional conduct’ in terms of the Health Professions Act. The article also explores a related matter, namely whether the Health Professions Council of South Africa (HPCSA) has a legal duty to refer complaints regarding unprofessional conduct that displays criminal elements for criminal prosecution. After considering relevant case (...) law on these issues, the article concludes that a practitioner, after being convicted of an offence, should be afforded an opportunity to explain him- or herself to the board, not only in extenuation of the conduct in question, but also in response to the question of whether the conduct constitutes improper or disgraceful conduct. Moreover, the article explains why the HPCSA and professional boards have a legal duty to refer matters of unprofessional conduct with criminal elements in terms of section 34 of the Prevention and Combating of Corrupt Activities Act to law enforcement agencies. (shrink)

The purpose of this article is to explore the multiple layers of representation which occur in the South Africa Pavilion at the Art Biennale in Venice in order to understand how they constitute and affect the state’s political imaginary. By analysing three artworks (David Koloane’s The Journey, Sue Williamson’s For thirty years next to his heart, and Zanele Muholi’s Faces and Phases) which were exhibited in the 2013 Pavilion, two key arguments emerge: 1) in this context artistic representation (...) can be understood as a form of political representation; and, 2) these artists are simultaneously state and citizenry representatives. A tension emerges between the political imaginary desired by the South African state and the political imaginary enacted by its representatives. The article draws on seven months of participant observation fieldwork at the Biennale, which involved 76 interviews with people associated with the South Africa Pavilion, including government representatives, exhibition organisers, artists, and visitors. Part I explores the concept of representation in order to establish the two philosophical trajectories (political and artistic) with which this article engages – with particular reference to Michael Saward’s framework of the representative claim. Part II explores the multiple representative claims which the three artists and their artworks enact.Abbreviations: Biennale: Venice Art Biennale; DAC: Department of Arts and Culture; For thirty years: For thirty years next to his heart, by Sue Williamson; TRC: Truth and Reconciliation Commission; US: United States of America. (shrink)

This article proceeded from the assumption that the theme of service delivery in present-day South Africa could well be qualified by the notion of 'crisis', to the extent that this qualification, from a theological perspective and on the basis of comparative social analysis, well recalls the statements in such critical and profound theological documents as The Kairos Document and Evangelical Witness in South Africa on the 'crisis' in the latter years of apartheid. The further recognition that (...) the theme of service delivery constitutes an essentially new focus for practical-theological scholarship in South Africa led the author, who has a pertinent interest in the field of Christian diaconia, to thereupon go the full circle of practical-theological interpretation in developing such a focus. This was done by, firstly, attempting to develop a deeper contextual understanding of the problem of service delivery in the country on the basis of the prevailing debate on service delivery in South Africa, after which the ideas from conceptualisations of two different modes of diaconal practice within contexts of endemic poverty in the practical-theological literature were explored. The discussion concluded with a more pertinent consideration of the extent to which these two conceptualisations could be taken as providing direction in conceptualising a transformational diaconal response to the current service-delivery problem. (shrink)

The main issue in the Masiya judgment was whether the current South African definition of rape—namely non-consensual penetration of a vagina by a penis—should be extended to include anal penetration of both female and male victims. The majority of the Constitutional Court held that anal penetration of female victims should constitute rape, but declined to offer similar protection to male victims. This note argues that this judgment reverts to and reinforces patriarchal stereotypes and dichotomies and that it (...) misunderstands, in a profound way, central concepts such as sex and gender and the gendered nature of rape. It further suggests that, instead of being an aberration, the judgment actually fits into a pattern of conservative judgments about gender and sexuality by the South African Constitutional Court. (shrink)

This article outlines the basic tenets of political liberalism, a recent twist in liberal theories of justice, and distinguishes a ?sufficiency? approach from its more ?egalitarian? rivals. The article argues that a ?sufficiency? principle as the basis for distributing social and material goods, is a logical extension of the commitment to a democratic ideal, one that is required to give substance to political rights guaranteed to all citizens as free and equal members of society. To illustrate the attractiveness of this (...) approach, the paper illustrates how political liberalism offers a compelling way of characterising and interpreting the new South African constitution. As a pluralist society which has until recently been ruled by an unjust regime, political liberalism in general, and the ?sufficiency? version in particular, would offer an effective and inclusive way of addressing what ought to be the paramount concern for all citizens: namely, how to prevent the state's coercive powers from being used by one sectarian group to dominate and repress other groups. (shrink)

Much of the debate about post-secularism has presumed a background of Western countries and the sort of statutory law that legislatures should make, and how they should make it, in the light of residents’ religious attitudes and practices. In this chapter I address a fresh context, namely, that of South Africa and the way that courts have interpreted, and should interpret, law in the face of African traditional religions. Specifically, I explicate the fact that, by South (...) class='Hi'>Africa's famously progressive Constitution, religious customs already count as law, and I illustrate how such customary law could work with three court cases related to indigenous African spirituality. Then, I lay out and evaluate the two central arguments that jurists have made in favour of South Africa's Constitutional practice of deeming long-standing religious ways of life to be sources of law. I contend that these influential arguments for customary law, which are substantially individualist, are weak, and also sketch more promising rationales, which invoke more communitarian considerations. My aim is not so much to convince the reader that South Africa’s approach to post-secularism is justified as to identify some argumentative strategies that particularly promise to justify it. (shrink)

This article recognizes that linguistic prejudice (with its associated cultural biases) is a reality in any multilingual country, including South Africa. Prejudice is inherently human and the article suggests that it can be both positive and negative. In the case of the Senzo Meyiwa murder trial the article suggests that the linguistic prejudice experienced by witnesses and legal practitioners was largely negative. Even though the South African Constitution suggests an empowering multilingual environment where there are now twelve (...) official languages, in contrast to this, the article takes as a point of departure the monolingual language of record policy that has been in place in the South African legal system since 2017. This is contrary to the constitutional imperatives. It is argued that this policy negatively impacts witnesses and legal practitioners and that the Meyiwa trial is a case in point. It is found that in this trial there is linguistic prejudice (practiced by the presiding judge) where there are linguistic or cultural voids related to communicative inequality and where the speaker does not have sufficient English vocabulary to proceed. It is concluded that the interpretation process also has its challenges and that ideally the use of African languages as languages of record in courts could only aid the delivery of social justice and the implementation of language rights in a multilingual and multicultural country such as South Africa. (shrink)

South African law currently forbids those seeking to arrange a surrogate motherhood agreement from creating a child that will not be genetically related to at least one of them. For a surrogacy contract to be legally valid, there must be a ‘genetic link’ between the child created through a surrogate and the parents who will raise it. Currently, this law is being challenged in the High Court of South Africa, and in this article I critically explore (...) salient ethical facets of the dispute. I argue that the law is unjust and should be revised. (shrink)

South Africa implemented a comprehensive response to COVID-19 comprising of several coercive public health measures. As in many countries, COVID-19 measures were subject to a number of legal challenges on the grounds that these measures infringed on individual rights and liberties. Here, courts were required to assess the extent to which these limitations were justifiable against the state’s imperative to improve public health. Consequently, the acceptability of different justifications of coercive public health measures during the COVID-19 pandemic in (...) South Africa may be understood and assessed through the lens of its jurisprudence. This paper seeks to outline the approach to allowing, or disallowing, coercive public health measures as adopted by the judiciary as arbiters of allowable human rights infringements and thus permitting or prohibiting the state from exercising coercive powers. Specifically, this analysis aims to identify the principles underpinning the decisions with an expressly ethical lens with a view to providing content for the operationalisation of justifications for coercive state action such as the harm principle, reciprocity, least restrictive means in relation to the promotion of public health and the limitation of individual liberty. (shrink)

South Africa’s groundbreaking constitution explicitly confers a right of access to sufficient water. But the country is officially ‘water-stressed’ and around 10 % of the population still has no access to on-site or off-site piped or tap water. It is evident that a disconnect exists between this right and the reality for many; however the reasons for the continuation of such discrepancies are not always clear. While barriers to sufficient water are myriad, one significant factor contributing to insufficient (...) and unpredictable access to water is the high percentage of broken water pumps. Previous studies have reported that between 20 and 50 % of all hand operated water pumps installed on the African continent are broken, or out of use. Monitoring and maintenance of pumps, which in South Africa is the responsibility of local municipalities is often ineffective, in part due to the distances between municipal centres and rural communities and the consequent costs of site visits, as well as breakdowns within the local bureaucratic system. The emergence of new telemetry tools that can remotely monitor water applications constitutes a novel and cost-efficient alternative to undertaking regular sites visits. Sustainable, appropriate, low-cost telemetry systems are emerging that could be used to monitor the operational performance of water pumps, or a wide range of other field parameters, and to communicate this information swiftly and cheaply to water service providers, using SMS messages. Data on the performance of water pumps could also be made available to the public online. This is an example of how ICT can be used for water resources management and environmental regulation, as well as in the governance of socio-economic rights: helping to optimize water allocation by improving communication and strengthening accountability. (shrink)

Background Despite the growth of biomedical research in South Africa, there are few insights into the operation of Research Ethics Committees (RECs) in this setting. We investigated the composition, operations and training needs of health RECs in South Africa against the backdrop of national and international guidelines. Methods The 12 major health RECs in South Africa were surveyed using semi-structured questionnaires that investigated the composition and functions of each REC as well as the operational (...) issues facing committees. Results Health RECs in SA have an average of 16 members and REC members are predominantly male and white. Overall, there was a large discrepancy in findings between under-resourced RECs and well resourced RECs. The majority of members (56%) are scientists or clinicians who are typically affiliated to the same institution as the health REC. Community representatives account for only 8% of membership. Training needs for health REC members varied widely. Conclusion Most major health RECs in South Africa are well organized given the resource constraints that exist in relation to research ethics in developing countries. However, the gender, racial and occupational diversity of most of these RECs is suboptimal, and most RECs are not constituted in accordance with South African guidelines. Variability in the operations and training needs of RECs is a reflection of apartheid-entrenched influences in tertiary education in SA. While legislation now exists to enforce standardization of research ethics review systems, no provision has been made for resources or capacity development, especially to support historically-disadvantaged institutions. Perpetuation of this legacy of apartheid represents a violation of the principles of justice and equity. (shrink)

To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular (...) appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law. (shrink)

This article uses a comparative approach to elucidate the ways in which women’s testimony operated in South Africa’s Truth and Reconciliation Commission and in Rwanda’s gacaca courts, to draw out some important lessons for future mechanisms of transitional justice. The author argues that while restorative justice mechanisms allow more space for including women’s own experiences of human rights violation than conventional trials, they may pose greater danger for those who testify. A significant problem resulting from the narratives of (...) both gacaca and the TRC is the way in which a ‘singular woman victim’ emerges that elides the complexity of women’s experiences in collective memory. It is feared that what has emerged from the official discourse of these two truth-seeking mechanisms is a one-dimensional female victim subject – in South Africa, she is of secondary importance, in Rwanda, she can only be Tutsi, and in both cases she is stripped of all agency, where rape becomes definitive of her experience. (shrink)

In the late twentieth century constitution-designers came to understand that, in addition to the three classic Montesquiean functions of law-making, law-applying, and law-interpreting, constitutional institutions had to perform an additional function, that of protecting the constitution itself. That function is performed by constitutional courts, but also by agencies concerned with elections and with corruption. A case study of an important anti-corruption inquiry in South Africa illustrates the proposition that institutions protecting the constitution must combine independence from (...) other political actors with some degree of accountability to them. Following the case study, the Article examines some general characteristics of these institutions, sketching some of the questions about independence and accountability that constitution-designers must consider. Among those questions are the possibility of too much independence, with the institutions having a greater impact on political outcomes than is appropriate, too much responsiveness to non-political but professional concerns such as legality and the details of accounting conventions, and of course too much accountability to the very political institutions that these agencies are designed to regulate. Throughout the Article emphasizes the role of conflicts of interest both in setting the agenda for these agencies and in posing the risk that the agencies will undermine rather than protect the constitution. (shrink)

In the wake of colonial fragmentation and genocide, Indigenous ‘Khoisan resurgence’ movements in South Africa have mobilised subversive forms of authenticity, including heteroglossic and inventive translanguaging from fragments of Khoekhoegowab. In our analysis of video ethnographic texts produced in collaboration with the Gamtkwa Khoisan Council (GKC) in Hankey, the birthplace of Sarah Baartman, we explore how memory, language politics, and environmental activism are interwoven in acts of linguistic citizenship that constitute the ‘rememorying’ of a history that has remained (...) persistently obscured. We argue that rememorying advances a politics of reminding which counters the Rainbow Nation’s institutionalised politics of forgetting, as well as anthropological accounts that consider Indigenous activist invocations of history as merely ‘therapeutic’. Through an engagement with the memory activism of the GKC, we identify how reconstructing word-histories, reliving historical traumas, retelling histories of sites of memory, seeing oneself mirrored in one’s ancestors, and the nexus of land, memory, and time form the basis for shared meaning-making, bringing impetus, focus, and intergenerational continuity to struggles for environmental and land justice. (shrink)

South Africa's 1996 Constitution promises a measure of ‘social citizenship’ alongside formal political and legal equality. South Africa's public welfare and social policies may be less effective in ensuring social citizenship, through reducing insecurity and inequality, than those of the more established democracies, but they are far more effective than those of other ‘developing’ countries. The origins of social citizenship in South Africa lie in the early and mid-1940s, when the state first assumed responsibility (...) for the welfare, broadly understood, of all South Africans. The most significant achievement was the introduction of a universal old-age pension system. The importance of these initiatives has been largely overlooked. This has been in part because later scholars largely ignored the heterogeneity of liberal thought in South Africa in the mid-twentieth century, as followers of the ‘New Liberalism’ broke with the classical liberalism of John Stuart Mill and argued for a range of state interventions in social and economic life. In South Africa, as elsewhere, the Second World War provided a context in which revised liberal thought gave rise to major policy reforms, some of which were to survive even the election of a National Party government in 1948. (shrink)

This paper focusses on the Belgian constitutional and legal regulations which are clearly and relatively directly linked to minority protection as welt as their relevance for South Africa by way of analogy, taking into account South Africa's specific circumstances.Generally, what seems to be highly relevant for South Africa is the different kind of solutions in Belgium for its three categories of minorities as related to a different degree of territorial concentration. Going from an (...) emphasis on territorial federalism, providing autonomy, for the highly territorial concentrated linguistic groups, over the use of the relative concentrations of the ideological and philosophical groups in certain federated entities, to a combination of individual human rights and group rights without a territorial connection whatsoever for the religious groups which are highly dispersed throughout the country.An analogous differentiation ofseveral types ofminority protection could bedivised in South Africa as the genera! lack of territoria! concentration of thecountry's several population groups bas a different degree for the ethnic/linguistic groups as compared to the religious ones. (shrink)

The liberal constitution in South Africa, which entrenches a certain kind of socio-economic organisation, renders systems of socio-economic organisation traditional to Africa, dysfunctional. These traditional communitarian systems contain within themselves structures endorsing harmony, mutuality and reciprocity as ground rules or values which distribute significant resources (both material and moral) to all agents in accordance with their socially determined deserts. The absence of these structures in South Africa contributes to a condition, inflamed by liberal structures, of (...) rights paralysis under which agents are unable to translate rights into substantial benefits. In this article I examine this condition with reference to two traditional systems of socio-economic organization to exhibit their advantages as correctives to the paralysis of rights, and to compare them in order to establish which one is preferable. (shrink)

Since the international community has offered their nearly unanimous condemnation of the system of apartheid in the Republic of South Africa, the topic of this essay might seem moot. However, the involvement and cooperation with the South African government of numerous governments, businesses, and other institutions suggest that those condemnations do not constitute the final word - certainly not politically, nor, perhaps, morally.

The South African political and social landscape has been dominated and characterised by, among others, a growing number of protests in recent years. Protesting and marching are allowed by the constitution of the country, provided the required permission is granted by relevant authorities. Unfortunately, very few protests and marches end peacefully. Most lead to the destruction of property and even loss of life. Recent violent protests demanding the release of the jailed former President, Jacob Zuma, were estimated to cause (...) losses of not less than a hundred million rand, with shops looted and trucks burnt. Violent protests have become the norm – similar to the period of contestations against the apartheid government. The point of departure of this article is that destructive protests need to be investigated to determine the causes while unveiling the challenges such protests bring to the community and the nation at large. The critical reading of post-apartheid academic and non-academic texts relevant to the topic will be read within the South African context, to determine the causes as we seek ways to minimise or even eradicate the violence that is destroying South Africa. The article will also advance the role of theology, particularly practical theology, in the elimination of such practices. Contribution: Working towards eliminating and arresting the social ills that are destroying South Africa cannot be achieved without addressing the destructive protests, which are delaying and even reversing the achievements of democracy. It is the role of practical theology, through its pastoral care and counselling, to engage with broken communities in trying to teach, counsel and show them the importance of avoiding vandalism and cruelty when seeking service delivery from their leaders. (shrink)

Bonginkosi Shozi and Donrich Thaldar’s (2023) contribution is relevant to epistemic justice, which involves efforts to develop an inclusive and global bioethics that takes seriously perspectives fr...

This article seeks to examine the ways in which courts of constitutional review have tried to deal with public sentiments within societies emerging from large-scale oppression and conflict. A comparative analysis of judicial review decisions from post-communist Hungary, post-apartheid South Africa and post-dictatorial Argentina is meant to show-case how judges have, more or less successfully, recognised and pedagogically engaged social negative feelings of resentment and indignation towards former victimisers and beneficiaries of violence. Thus, the article hopes to (...) pave the way for more in-depth research on one of the most neglected dimensions of post-conflict societies: public affect. (shrink)

South Africa has an abortion law which codifies the broad themes of reproductive rights set out in the Constitution of South Africa, other laws and national guidelines. Certain wording of the conditions in the Choice Act for abortion after 20 weeks' gestation, are open to interpretation, being ‘severe malformation of the fetus’ and ‘risk of injury to the fetus’. From 24 weeks onwards, abortion is carried out by feticide/induced fetal cardiac asystole (‘IFCA’) and subsequent induction of (...) labour in South Africa. Some maternal‐fetal units have developed guidelines to assist clinicians and patients in decision‐making around eligibility for abortion after 20 weeks' gestation, given the broad terms in the law. We consider the guideline used by an institution in the Western Cape for abortion after 23 weeks and 6 days gestation, in terms of its alignment with the law on reproductive rights and its compliance with fair and transparent procedures. We also note its effect on respect for patients and on staff professionalism. (shrink)

The years 2015 and 2016 were marked by violent protests at South African universities. While the focus of many of the protests was on access to university education, an equally major theme was the decolonisation of universities. University statues, such as that of Cecil John Rhodes at the University of Cape Town and many others, were pulled down or defaced. Within the discourse on decolonisation of curriculum, statues were viewed as symbols of maintaining and preserving the colonial hegemony that (...) is being sustained by a Western or Eurocentric curriculum taught at universities. These developments led to a national discourse, which, among others, highlighted universities as spaces of exclusion because of residual colonial features. These protests became represented by hashtags such as #RhodesMustFall. These protests indicated a conflict and contest to eradicate the remnants of colonialism, as represented by statues (#YourStatueMustFall), which some protesters argued should be replaced by symbols of black liberation and anti-apartheid iconic symbols (#MyStatueShouldBeErectedInstead). For an integrated South Africa, with its constitutional ideals of a rainbow nation, a discourse of coexistence is required (#BothOurStatuesShouldBeErected). In this situation, a contextually engaged reformatory public practical theology is required to contribute to a constructive discourse and coexistence. (shrink)

How should judges deal with the manifestation of religious symbols in public educational institutions? In light of the important role of human rights in our legal and political system, courts should grant maximum protection under the freedom of religion or belief. The central thesis of this article is that the European Court of Human Rights fails to live up to this standard. In order to reach this conclusion, the article analyzes relevant case law of the European Court and (...) compares its case law with that of the high courts of Canada and South Africa. In addition, the article assesses the case law of all three courts from the angle of interpretation theory and particularly Cass R. Sunstein’s theory of judicial minimalism. Adoption of a more consistently minimalist methodology by the European Court might lead to a greater protection granted to individuals and groups. However, a wide and deep ruling is first required to overturn the current line of reasoning. The European Court can draw inspiration from Canada and South Africa for such a judgment. (shrink)

This article engages with the question of land in South Africa based on the jubilee notion, from a decolonial theological perspective. It shifts the focus from debating the merits of ‘expropriation of land without compensation’ towards assessing the relations of power that determine and legitimate what constitutes the human relationship to the land. It argues that disruption in eco-relationality wrought by colonial-apartheid is a foundational factor of the land struggles in post-apartheid South Africa. In order to (...) promote land justice, there is a need to liberate the land from apartheid through reclaiming African and Christian notions of land as belonging to God. (shrink)

Why was the South African state so much more successful than the Brazilian state in its attempts to collect income taxes during the twentieth century? Nationally distinctive tax policies and patterns of administration can be explained by examining the impact of contrasting definitions of National Political Community, specified in critical constitutions written around the turn of the century. The ways in which racial and spatial cleavages were addressed in the 1891 Brazilian constitution and the 1909 South Africa (...) Act influenced the development of interclass and intraclass relations, which in turn affected the willingness of upper-income groups to accept state demands for income tax payments. Varied patterns of state development were largely predicated on contested notions of “us” and “them.”. (shrink)

continent. 1.4 (2011): 242—252. Introduction The following two works were produced by visual artist Jonas Staal and writer Vincent W.J. van Gerven Oei during a visit as artists in residence at The Bag Factory, Johannesburg, South Africa during the summer of 2010. Both works were produced in situ and comprised in both cases a public intervention conceived by Staal and a textual work conceived by Van Gerven Oei. It was their aim, in both cases, to produce complementary works (...) that could be read “through each other,” in which the movement of artistic construction would be imitated by textual deconstruction and vice versa. Both works deal with the way in which capital, apartheid, and monumentality are interwoven in South-African society. The Missing Link addresses a monument for democracy, erected on the premises of a private corporation running both an amusement park and the Apartheid Museum franchise. The textual intervention accompanying this public intervention investigates the limits of the inclusiveness of the anti-discrimination section in the South-African constitution, itself a monumental work of democracy. The Monument for the Distribution of Wealth deals with the history and eventual dissolution of a monumental square, commemorating the Soweto Uprising, in one of the poorest townships of Johannesburg. The history accompanying this public dismemberment of memory is equally fragmented, which is expressed by the many voices recounting uncertain and perhaps even irrelevant “facts” about the genius loci, the way in which the memorial space has actually entered into the memory of the inhabitants surrounding it. Next to their individual practices, Staal and Van Gerven Oei have worked together on a number of projects ever since 2007, including several art residencies. Their work involves an investigation of the different interfaces between art, politics, and public space in media ranging from theater and public interventions, to video installations and (co-authored) textual works. The Missing Link Missing Link (1) Missing Link (2) Missing Link (3) Intervention on the monument entitled The Seven Pillars of the Constitution , part of the Apartheid Museum in Johannesburg, South Africa. The Seven Pillars represent the constitutional values propagated in South Africa since the abolition of the apartheid regime. The monument and museum were built by the Gold Reef Resorts corporation, which is also responsible for the theme park and casino next to it. By placing the word “capitalism” on the wall surrounding the museum, the capitalist system and the constant social divisions that it implies are interpreted as sophistic continuations of apartheid politics. Through the capitalist system, apartheid is still operational within South African society. Whereas during the apartheid regime, the separation clearly ran along race divisions, in the current, “democratic” system, the same actual separation is sustained without it being an explicit element of the foundations of the country, i.e. the constitution. This intervention foregrounds the constant role of capitalism is both periods. At the same time the intervention acknowledges that contemporary Western artisthood is a mirror of the privileges that are offered by the capitalist system, and the type of artist that it produces. The intervention initiates a critical discourse concerning the capitalist system situated within the disaster of capitalism itself, in other words: through the desire to break with the presumption that art would be able to operate outside the capitalist system and to confirm that art—and the artist himself—is in fact modeled on this system. The public intervention by Staal was supplemented by a textual intervention by Van Gerven Oei: a proposition to alter the seventeenth amendment of the South African constitution. Even though the anti-discrimination legislation in South-Africa is one of the most stringent and inclusive in the world, one factor—wealth—remains outside its scope, thus continuing the schisms along racial lines produced during the apartheid regime: §9.3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, and wealth. Monument for the Distribution of Wealth Intervention concerning the June 16 Memorial Acre in Central Western Jabavu, one of the poorest townships of Johannesburg. The monument comprises a park on which different are placed recalling an important protest the black population against the former apartheid regime. In 1976, from a school adjacent to the park, they started a massive protest against the introduction of Afrikaans in the school curriculum. The police reacted violently, and shot several hundreds of students. The construction of the June 16 Memorial Acre was started in 2005, and from the start was the paragon of corruption. Coordinated by local politicians, some family members of the protest leader from 1976 gained control of the realization of the monument, outside the regulation through external institutions. The available budget of 41 million rand (at that time well over 5 million euro) was largely embezzled. In the meantime, the monument has become fully dilapidated and defaced. The park has become overgrown with weeds and covered in a layer of dirt, and the local population is slowly plundering the square to use the material for the construction and decoration of their own houses. The Monument for the Distribution of Wealth develops the dynamics already existent around the June 16 Memorial Acre. Without obtaining official permission in advance, several local inhabitants were hired to break down the monument, sort the materials, and offer it to the neighborhood. Thus, the redistribution of wealth after the fall of the apartheid regime is finally taking place, albeit from the mere remains of the capital that was once invested in the community. The words “monument” and “for free” are spray-painted on the stacks of material, both in English and Zulu, as these are locally the most common languages. Van Gerven Oei supplemented Staal’s public intervention with an account of the history of the monument based on a series of interviews. The account clarifies how the different interests within the protest 1976 are reflected in the exceeding decay of the park, and how in the end those interests were represented by the June 16 Memorial Acre. Monument for the Distribution of Wealth 1: Removing stones Monument for the Distribution of Wealth 3: Pulling down statues Monument for the Distribution of Wealth 4: Offering the material Monument for the Distribution of Wealth 5: Offering the material Monument for the Distribution of Wealth 6 The next day A Fragmentary History of the Monument for the Distribution of Wealth, Formerly Known as the June 16 Memorial Acre in Central Western Jabavu, Soweto Vincent W.J. van Gerven Oei The following text, based on interviews and online research aims to provide parts of a history of the park in front of Morris Isaacson High School in Central Western Jabavu, Soweto. The idea for the transformation of the park into a memorial site has its source in the events of June 16, 1976: the start of the the student uprising in Soweto. The development of the park was started in the early 1980s, and the actual transformation into a memorial site, the June 16 Memorial Acre, was initiated in 2005. Over the last few years, several monumental additions have been made to the park: A marble monument with three pillars was revealed on June 16, 2006. A sculpture of a book and several billboards on June 16, 2008. A sculpture of student leader Tsietsi Mashinini on June 16, 2010. The park was transformed into the Monument for the Distribution of Wealth on August 3, 2010. According to the entry “Youth Struggle” on the website South African History Online, the Bantu Education Act was introduced in 1953 . In 1954 , Dr Verwoerd, Minister of Native Affairs, stated: “What is the use of teaching the Bantu child mathematics when it cannot use it in practice? That is quite absurd.” According to the entry “Soweto uprising” on Wikipedia, the Afrikaans Medium Decree was issued in 1974 , forcing all black schools to use Afrikaans and English in a 50-50 mix as languages of instruction. The Regional Director of Bantu Education (Northern Transvaal Region), J.G. Erasmus, told Circuit Inspectors and Principals of Schools that from January 1, 1975 , Afrikaans had to be used for mathematics, arithmetic, and social studies from standard five (7th grade). English would be the medium for general science and practical subjects. Indigenous languages would be used for religion instruction, music, and physical culture. According the entry “Soweto uprising” on Wikipedia, on April 30, 1976 , students from the Orlando West Junior School in Soweto went on strike, refusing to go to school. Their example was followed by other schools in Soweto. A student from Morris Isaacson High School, Toboho “Tsietsi” Mashinini, proposed a meeting on June 13, 1976 to discuss further action. According to Weizmann Hamilton’s article “The Soweto Uprising 1976,” which appeared in the September 1986 edition of Inqaba Ya Basebenzi (Fortress of the Revolution), on June 13, 1976 , the South African Students’ Movement called a meeting at the Donaldson Community Center in Orlando. 300-400 Students representing 55 schools decided to hold a mass demonstration on June 16. According to Brian Mokhele, member of the Joint Community Safety Forum, Dr Edelstein was the first victim of the Soweto uprising and killed the day before the march on June 15, 1976 . Edelstein was an administrator at the pass office in Jabavu and gave golf courses to the local community. Edelstein was put in a garbage bin and pierced by pickaxes. The garbage bin was left at the very spot of the murder for many years. A few years ago, a child was beheaded at the same spot, and the basketball court next to it has been abandoned since. According to Marcus Neustetter, founder of the Trinity Session, this story is untrue. According the entry “Soweto uprising” on Wikipedia, on June 16 , Tsietsi Mashinini led students from Morris Isaacson High School to join up with others who walked from Naledi High School. A crowd of between 3,000 and 10,000 eventually ended up near Orlando High School. According to Raymond Marlowe, a local photographer, Tsietsi Mashinini was heading the march. According to the entry “Hector Pieterson” on Wikipedia, Dr Edelstein died on June 16, 1976 , stoned to death by mob and left with a sign around his neck proclaiming “Beware Afrikaaners.” The first child to die that day was called Hastings Ndlovu. According to Pat Motsiri, Orlando West is claiming struggle heritage through the Hector Pieterson Museum, while Hector Pieterson was from Jabavu. According to Pat Motsiri, his generation effectively struggled between 1980 and 1991, forcing the release of Nelson Mandela and negotiations with the apartheid regime while the 1976-generation was safely in exile. Nevertheless, this has not been recognized in any monument. After the abolition of apartheid, the generation from 1976 returned from exile, occupied important government and ANC positions, creating an abundance of 1976 memorials and refusing to acknowledge that this was only possible because of the younger generation’s struggle. He calls this a generational conflict. According to Archibald Dlamini, the park officer responsible for the Memorial Acre, he started working for the municipality in 1978. In 1981/82 , Isaac Makhele from Pimville, who used to work in the cemetery business, was the first developer of the park. It used to be just a normal park until City Parks decided to develop the Memorial Acre in 2006. In 2007 the work was stopped by the community. According to Brian Mokhele, he left the country in 1989 after he participated in the riots of 1986. But when he returned in 1999 he found that nothing had changed. He says that they were promised to be protected by the Constitution, but that reality is different. The police uses fear to suppress them so that they don’t come out to talk openly. He has been arrested twice, both times harassed and tortured by the police, but in the end always released without indictment. He says that this is their way to threaten communities to back off from politics. According to Moses, who is sitting outside rolling a joint, Brian knows everything. He tells Brian to tell me everything he knows. According to Brian Mokhele, Tsietsi Mashinini was possibly murdered in 1990 during his exile in New York. Two weeks before he was supposed to return to South Africa, his papers in order, he was found dead under mysterious circumstances. His coffin was sealed when he was buried. According to Pat Motsiri, he came up with the idea for the Memorial Acre in 2003 . He submitted the documents for the proposal to the council, which sidelined him as soon as the budget came out in 2005 . According to Brian Mokhele, there was on estimation R 41,000,000 spent to redesign the park and turn it into the Memorial Acre. The millions were divided by Amos Masondo, the mayor of Soweto, the local councilor Bongani D. Zondi, and the director of the city of Johannesburg, Pat Lephunya. They were dividing the money between several contractors: Tsietsi Mashinini’s brothers were involved in the development of the park, they got the tender to do the green areas, the landscaping. Construction was done by other companies, some did the paving, the toilets, etc. EMBA, a private company appointed by the municipality was in control of the money flow, but the money was quickly gone. According to Raymond Marlowe, the contractor bought a BMW with the money. According to Archibald Dlamini, the Mashinini brothers got the tender, so the space would look more like the other places around in Soweto. It was agreed that after they were done, they would return the property to the municipality. They did whatever they could do. According to Mafaisa, a member of the Jabavu business community, he was one of the contractors for the landscaping and the pavement under Mpho Mashinini, one of the brothers. He says that I should contact Mavi for information on Mpho. According to Poi Stuurman, a local youth worker, Mafaisa is one of the guys who ran away with the money. According to Mavi, Mpho Mashinini was never a contractor. The contracts were organized by Sbu Butelezi, the former head of the Gauteng Department for Public Works. The June 16 Foundation and the Mashinini brothers will be the beneficiaries of the park when it is finished. According to Brian Mokhele, City Parks did not accept the Memorial Acre because it was not finished. The rest of the year, the unfinished park is not maintained, as should have happened. This was done deliberately so that in the end they can just clean the whole thing up and have a reason to redo the whole park. According to Brian Mokhele, the Mashinini brothers now work for the government. People that manipulate for money purposes always come from the government’s side. Because the park was left unfinished, the people from the neighborhood are taking away the stones to decorate their own homes with. According to Archibald Dlamini, because City Parks doesn’t accept responsibility of the park, he officially has nothing the guard, except for his cottage, which is municipal property. The thieves come at night and destroy the park, but he cannot do anything because he is sleeping. According to the website of the Thanda Foundation on June 16, 2006 a bronze statue of Hector Pieterson, the first child to die in the 1976 protests, made by Kobus Hattingh and Jacob Maponyane was unveiled in the Maponya Mall in Soweto. The statue is sculpted after the famous image shot by Sam Nzima of Mbuyisa Makhubo carrying the dead body of the boy. The sculpture was sponsored by the Thanda Foundation, founded by the Swedish entrepreneur Dan Olofsson and South-African entrepreneur Matthews Phosa. According to the official website of the City of Johannesburg, the Memorial Acre and Artwork were unveiled in 2006. According to a blog post on sowetouprisings.com, the Memorial Acre was still under development on July 24, 2006. According to Archibald Dlamini, City Parks only cleans up the park once a year just before the June 16 celebrations. Everybody is waiting for the Mashinini brothers to finish their job. The last time he talked with them was in 2007 . According to a sign on the school grounds of the Morris Isaacson High School, the June 16 Trail will be finished in 2008 . According to a blog post on sowetouprisings.com, the Memorial Acre contains another monument erected in Tsietsi’s honor. The monument was created as part of the Sunday Times Heritage Public Art program. Its physical form resembles a giant book which symbolizes the crisis in education experienced in 1976. On the face of the book is the map of the route taken by the students from Morris Isaacson High School in Central Western Jabavu to Phefeni Junior Secondary in Orlando West (currently the site of the Hector Pieterson Museum), while the back cover of the ‘book’ is inscribed with a tribute to Tsietsi Mashinini. The monument was revealed on June 16, 2008 . According to Marcus Neustetter, the billboards on the Memorial Acre were part of a school project realized in 2008. Following several workshops, the students from different high schools along the June 16 Trail were invited to work with artists on the billboards, while the neighborhood community was invited to watch the process during the festivities on June 15 and 16, 2008 . The billboards were supposed to be removed because of construction works on the Memorial Acre, which never ended up happening. According to Brian Mokhele, the former toilet facilities were converted into a house for the park officer. This park officer has been working for city parks for more than 12-15 years, but does nothing here, because the park, including the new toilet buildings, is not finished. The government is now moving around looking for people to take this job because they stopped it. They confronted everybody who was going in and chased them away. According to John, in 2009 , some girls, around 16 or 17 years old, were raped by four men who had been drinking in a local shebeen. When the bar quit they said that they would go home by car, but instead raped the girls on the Memorial Acre nearby. This happened in the unfinished toilets, because the doors couldn’t be closed. According to Brian Mokhele, there used to be some fences around the park because of the construction work that was eventually stopped, but these were also stolen. According to Archibald Dlamini, people from the neighborhood started about two and a half years ago, and the last piece was stolen near the end of 2009 . Sometimes he would catch someone with a roll of fence, and then use it for his own cottage. According to the official website of the City of Johannesburg, a statue of Tsietsi Mashinini by Johannes Pokhela was revealed on June 16, 2010 , “Youth Day.” According to Shirley Makutoane, deputy principal of Isaac Morrison High School, the statue of Tsietsi Mashinini, funded by the June 16 Foundation, has temporarily been placed within the school perimeter. The statue will be moved to the Memorial Acre when it will be finished, in 2011 . According to Brian Mokhele, beside the June 16 Foundation, there is also a June 16 Memorial Acre Foundation. Both foundations are quarreling about the money involved in the Memorial Acre project. Nobody knows who’s involved in them. According to Marcus Neustetter, the June 16 Foundation consists of people that were part of 1976 protest movement, local government officials, representatives of the Hector Pieterson Museum, and the council. According to students from the Isaac Morrison High School, the statue of Tsietsi Mashinini is on the school ground because on the Memorial Acre it would be vandalized by youths from White City, an adjacent neighborhood. Accorcing to Brian Mokhele, the statue of Tsietsi should eventually be mounted on the Memorial Acre. It is wrong that the statue is in the school at the moment, because it is not a public school. He wants the statues to depict the massiveness of the force that was coming into Soweto after the protests. According to Brian Mokhele, City Parks, City of Jo’burg, City Lights, and SAPS are making some sort of plan to take the plan back. They want to remove the trees from the Memorial Acre, and redesign the Memorial Acre into a relaxing park, without political content. They want to depoliticize the square. In doing so,they will have their own employment and not use local workforces. According to Brian Mokhele, the community wants to remove the monuments, amphitheater, and sculptures from the Memorial Acre because they do not resemble anything. The sculptures should be depicting the truth of what happened, because the Memorial Acre is a political heritage site. He wants to involve the people that actually participated in the struggle to make the monument so that everyone can enjoy it and get a better understanding of the struggle heritage. Therefore, he proposes collective ideology in which everyone has a say. This would prevent future vandalization of the monument. According to Pat Motsiri, the sculptures must depict the event around June 16, 1976. Like the story of Dr Edelstein, who was pierced by pickaxes, forced into a garbage bin and burned alive. According to Jonas Staal, the Memorial Acre should be destroyed, its elements stacked on pallets, thus forming the Monument for the Distribution of Wealth . According to Mafaisa, his men can do the work quickly. He has about twenty men working under him. (shrink)

From a young age Albie Sachs played a prominent part in the struggle for justice in South Africa. As a result he was detained in solitary confinement, tortured by sleep deprivation and eventually blown up by a car bomb which cost him his right arm and the sight of an eye. His experiences provoked an outpouring of creative thought on the role of law as a protector of human dignity in the modern world, and a lifelong commitment to (...) seeing a new era of justice established in South Africa. After playing an important role in drafting South Africa's post-apartheid Constitution, he was appointed by Nelson Mandela to be a member of the country's first Constitutional Court. Over the course of his fifteen year term on the Court he has grappled with the major issues confronting modern South Africa, and the challenges posed to the fledgling democracy as it sought to overcome the injustices of the apartheid regime. As his term on the Court approaches its end, Sachs here conveys in intimate fashion what it has been like to be a judge in these unique circumstances, how his extraordinary life has influenced his approach to the cases before him, and his views on the nature of justice and its achievement through law. The book provides unique access to an insider's perspective on modern South Africa, and a rare glimpse into the working of a judicial mind. By juxtaposing life experiences and extracts from judgments, Sachs enables the reader to see the complex and surprising ways in which legal culture transforms subjective experience into objectively reasoned decisions. With rare candour he tells of the difficulties he has when preparing a judgment, of how every judgment is a lie. Rejecting purely formal notions of the judicial role he shows how both reason and passion are required for law to work in the service of justice. (shrink)

Ownership is an important identity marker. It provides people with a sense of autonomy, rootedness and opportunity. This essay examines the oral submissions of civil organisations to the Joint Constitutional Review Committee about the issue of land expropriation without compensation. The discussion pays specific attention to the philosophical understandings of land and identity that emerged during the hearings. Three dominant trajectories came into play, namely land as commodity, land as social space and land as spiritual inheritance. Some submissions espoused (...) more than one view, which indicates that the boundaries between the identified paradigms are permeable. However, even those presentations tended to prioritise one approach above the others. Besides identifying the main approaches to land and identity, this essay also provides an immanent critique of their moral assumptions. In contrast to a transcendental approach, an immanent critique asks questions from 'within' and evaluates paradigms in terms of their plausibility, universal applicability, ethical consistency and moral integrity. (shrink)

The prevalence of HIV/AIDS in South Africa has drawn particular attention in recent years, not only because of the country's high rates of infection but also because of the highly contentious debates between the state, AIDS NGOs, and scientists over AIDS policy. The national AIDS lobby in South Africa, including groups such as the Treatment Action Campaign (TAC), has been forcefully articulating a rights-based discourse as a strategy to realize particular normative claims on the state. I (...) examine these recent public debates and challenges to the human rights based response to AIDS that has gained consensus internationally among AIDS NGOs, governments, doctors and medical researchers. I explore the limitations of framing political demands in terms of the constitution and within a rights-based discourse in the present are of globalization and neo-liberalism, where the state’s capacity to respond to the social welfare demands of its citizens has declined, and where the protection of universal human rights requires that powerful transnational actors, in addition to the state, be held democratically accountable. (shrink)

Durban, a coastal city in KwaZulu-Natal (one of the nine provinces in South Africa) boasts the Durban Harbour. One hundred and sixty-two years ago, this harbour was referred to as the Port of Natal. Between the year’s of 1860 and 1911, 152 184 indentured Indian labourers entered the British owned Colony of Natal through this port. Even though indentureship was officially abolished in Natal on 21 July 1911, the hardships and challenges endured by Indian nationals in Natal continued. (...) This article shines a spotlight on the period 1895–1960 through the theoretical prism of indentureship by focusing on the reflective memories of the respondent, Mr J.S. Singh, a nonagenarian. Using oral history methodology, face-to-face interviews were held with the respondent. His reflective memories brought alive the reality of life experiences in Natal between 1895 and 1960. He shared the journey of his Indian born paternal grandmother, Mrs Takurine Mahesh Singh who constitutes the cohort that left their country of birth as Indian nationals but subsequently created the Indian diaspora in Natal, where their descendants now call South Africa their home. Contribution: The content of this article is not simply described but also briefly reflected upon and explored as certain issues may be of interest to new, emerging and established oral historians. Furthermore, audio and video recordings of the interviews, which clearly illustrate oral history as the methodology as applied in this research, are available for academic, education and research purposes. (shrink)

Marketing restrictions to promote public health invoke competing rights, including the right to free commercial speech which for-profit entities use to protect their freedom to market products without undue regulation. The right to free commercial speech in South Africa has been developed through case law since the adoption of the first democratic constitution in South Africa in 1996. This article examines the impact of this recent judgment and the lessons for policy makers to ensure effective regulation (...) of marketing practices in South Africa. (shrink)

Simulated standardized patients (SPs) are trained individuals who pose incognito as people seeking treatment in a health care setting. With the method’s increasing use and popularity, we propose some standards to adapt the method to contextual considerations of feasibility, and we discuss current issues with the SP method and the experience of consent and ethical research in international SP studies. Since a foundational discussion of the research ethics of the method was published in 2012, a growing number of studies have (...) implemented this method to collect data on the quality of care in a variety of settings around the world. We draw from that experience to provide empirical foundations for a popular approach to ethical approval of such studies in the United States and Canada, which has been to obtain a waiver of informed consent from the health care providers who are the subjects of the research. However, the majority of studies to date have evaluated quality of care outside the U.S., requiring additional ethical consideration when partnering with international institutions. We discuss these considerations in the context of a case study from a completed SP study in South Africa, where informed consent is constitutionally protected. (shrink)

Umuntu ngumuntu ngabantu is the Zulu version of a traditional African aphorism . Although with considerable loss of culture-specific meaning, it can be translated as: “A human being is a human being through other human beings.” Still, its meaning can be interpreted in various ways of which I would like to highlight only two, in accordance with the grammar of the central concept ‘Ubuntu’ which denotes both a state of being and one of becoming.Firstly, it can be interpreted as a (...) statement of fact about the human condition, i.e. as a descriptive claim about the social nature of human being and personal identity; even the constitutive relation between alterity and identity. Secondly, it can also be interpreted as a value-judgement, i.e. as a normative appreciation of social difference and human diversity; even as an imperative to expose ourselves to others, to encounter the difference of their humanness, in order to fully become our own. The meaning would then be — to paraphrase a translation of Ramose : To be human is to affirm one’s humanity by recognising the humanity of others in its infinite variety of content and form.CONCLUSION :The challenge of a philosophical understanding of the multi-cultural context of apartheid South Africa has still to be met. To meet this challenge is to try and trace the consequences of what it would mean if — to paraphrase Walzer — our crucial commonality is our particularity. Perhaps it will mean accepting that what we are and are becoming, our identity, escapes any reduction to the categories of the ‘self’ and the ‘other’ and eludes a dialectical ‘aufhebung’ of their difference. This may be the case if what we are and are becoming involves the paradox of being and becoming ever more different in the realisation of our self-sameness. Our African aphorism speaks of this paradox and, in so doing, it draws a limit to our philosophical understanding and provides us with a rule of conduct: Umuntu ngumuntu ngabantu! (shrink)

Neo-liberalism often reduces pluralism to a social fact based on the collapse of the big ideals that once claimed to stand in for the ideal of humanity. Tolerance of inevitable value diversity is all that can be offered by the rationalized modern western state. This understanding of pluralism is completely inadequate in the post colony. Ernst Cassirer offers a philosophical understanding of symbolic plurality that allows us to respect divergent symbolic forms, including myth and religion. This understanding of pluralism opens (...) the space for respect for the customary law and the great indigenous ideals such as uBuntu which has often been denigrated as mythical and thus outdated or, worse yet, not law at all. This denigration is inseparable from colonial violence, and demands a process of transculturation as integral to this struggle to transform the new South Africa into a society that lives up to the Constitution’s call for the respect of all of its citizens. This respect can only be done if there are serious economic reforms and a challenge to the hegemonic neo-liberal capitalism. (shrink)

This paper represents the first attempt to apply vertical equity principles to the South African health sector. A vertical equity approach, which recognises that different groups have different starting points and therefore require differential treatment, appears to offer an appropriate basis for considering how best to redress the vast inequities which exist in post-Apartheid South Africa. Vertical equity principles are applied in critically analysing two areas of recent policy action which are particularlyrelevant to health sector equity in (...) South Africa, namely public-private sector cross-subsidies and the allocation of government resources between provinces. Despite a strong political commitment to redressing historical inequities, recent government policy actions in these two areas appear to fall short of desirable goals when viewed through a vertical equity lens. In particular, policies since the first democratic elections in 1994 have done little to reduce the extent of government subsidies to the private health sector, which serves a minority of the population. In addition, recent proposals for a Social Health Insurance will allow minimal cross-subsidies between high- and low-income earners and would not adequately redress the currently inequitable public-private cross-subsidies. With respect to the allocation of government resources between provinces, a vertical equity approach would suggest that the most historically dis-advantaged provinces have an even greater claim on government resources than reflected in the current formula, as developed by the Department of Finance. This paper also considers the potential benefits of engaging with societal views in determining what constitutes dis-advantage in the South African context, in order to identify those who should receive priority in resource allocation decisions. It concludes with a review of a number of practical steps that can be taken to draw vertical equity principles into policy action. (shrink)