Research Articles (Constitutional Law and Philosophy of Law)

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Celebrating the common law rights of man - a note on Blackstone's work on natural law and natural rights: chronicles
(Faculty of Law, University of the Free State, 2009-12) Nydam, L.; Raath, A. W. G.
William Blackstone's (1723-1780) Commentaries, a four-volume work, the first edition of which appeared in 1765, was produced in an epoch of natural law theory which marked the transition from "justification" to the "exposition" of natural law precepts and the shift from the ground of obligation of natural law to the formulation of detailed rules in natural law jurisprudence. Similar in style to E de Vattel's Le Droit des Gens, ou Principes de la Loi Naturelle (1758), and T Rutherford's Institutes of Natural Law (1748), Blackstone focused on the detailed rules of natural law rather than indulging in the philosophical underpinnings of natural law theory as such.
Open Access
Conscientious objection and legal abortion in South Africa: delineating the parameters
(Faculty of Law, University of the Free State, 2003) Ngwena, C.
English: The purpose of this article is to delineate the scope and limitations of the exercise of the right to conscientious objection in respect of participation in abortion procedures under theChoice on Termination of Pregnancy Act. The Act is silent about the right to conscientious objection. However, section 15 of the South African Constitution in particular, implicitly accommodates conscientious objection to abortion. It is submitted that whilst the Choice on Termination of Pregnancy Act fails to provide the principles for determining the limits of the right to conscientious objection, guidance can be derived from section 36 of the Constitution. It is submitted that section 36 supports the limitation of the right to conscientious objection where maternal life or health is in serious danger or there is a medical emergency. Furthermore, it is argued that in the particular circumstances of South Africa, section 36 is also capable of supporting the imposition of a duty to at least provide the pregnant woman with information about where she might be able to obtain an abortion. It is noted that determining the parties that are entitled to conscientious objection beyond health care professionals that are immediately involved with abortion procedures can raise difficult issues. However, section 36 of the Constitution is, once again, a useful tool for resolving any difficulties in this regard.
Open Access
The Constitutional Court and ubuntu's "inseparable trinity"
(Faculty of Law, University of the Free State, 2009-06) Keevy, I.
English: The purpose of this article is to deconstruct the Constitutional Court's definitions of ubuntu as humanness, group solidarity, umuntu ngumuntu ngabantu, personhood and a moral philosophy. It is submitted that the philosophy of ubuntu or ethnophilosophy represents a religious worldview as it is inseparable from African Religion and the African spirit world. It is argued that the advocating of ubuntu's shared beliefs and values by South African courts and the state is to the detriment of other religious philosophies as it violates section 15(1) of the Constitution and constitutes unfair discrimination.
Open Access
A critical retrospection regarding the legality of abortion in South Africa
(Faculty of Law, University of the Free State, 2005) De Freitas, S. A.
English: Abortion touches at the heart of the commencement of life, and therefore has to be approached accordingly. In this article, the South African jurisprudential debate on the legality of abortion, including the judgment in Christian Lawyers Association of SA v Minister of Health and the Choice on Termination of Pregnancy Act, is critically investigated. In conclusion, a proposed point of departure is postulated, with the aim of shedding more light on foetal status. In this regard, it is argued that, as part of the primary enquiry, morality and science, with special emphasis on fertilization, will have to play a more integral role.
Open Access
Die effek van die regulering van maksimum werkure op werknemers se grondwetlike reg op gelykheid
(Faculty of Law, University of the Free State, 2009-12) Marais, Marelize; Pretorius, J. Loot
English: The paper examines the effect of the provisons regulating maximum working hours, with reference to the principle of equality entrenched in section 9 of the Constitution of the Republic of South Africa, 1996. Section 9(1) read with section 10(1) of the Basic Conditions of Employment Act 75/1997 has the effect that, subject to certain exceptions, employees are not allowed to work for the same employer for more than 55 hours per week. This does not prevent employees from working longer hours in total for different employers, an option that entails clear disadvantages. As a result of the adverse effect of past discrimination, black people, women and people on low socio-economic levels are disproportionately more unfavourably positioned in respect of levels of income, occupational status, financial ability and, consequentially, opportunities for promotion and improvement. This disadvantage often creates a need to work longer hours, specifically for the same employer. An application of the test developed in Harksen v Lane NO leads to a conclusion that the provisions referred to constitute unfair discrimination in terms of section 9 of the Constitution. The provisions also fail the proportionality test of section 36 of the Constitution.
Open Access
Do "values" mean anything at all? Implications for law, education and society
(Faculty of Law, University of the Free State, 2008-06) Benson, Ian T.
English: The term "values" is ubiquitous in modern discourse. It is held by many to embody high and noble aspirations that can be shared meaningfully. Often preferred to other terms, such as "virtues", however, values can be seen as creating an illusion of moral meaning rather than conveying something substantive and worthy of pursuit. This paper reviews scholarship that examines the term "values," particularly in relation to law and education , and suggests that the term is one that obfuscates rather than furthers clarity of meaning and that does, in fact, tend in a subjective and individualistic direction contrary to the best interests of citizenship in a free and democratic society. The article argues that the concept of "values" itself, and programmes relating to such things as "values clarification" should not form the basis of education in and for a free and democratic society. An understanding of the nature and history of "virtues" as a tool for public education is argued for, and an extensive bibliography on "values" and "virtues" included.
Open Access
Equality for people with disabilities in the workplace: an overview of the emergence of disability as a human rights issue
(Faculty of Law, University of the Free State, 2004) Ngwena, C.
English: In essence, the article explores the development of disability as a human rights issue with a particular focus on equality in the workplace. It draws from developments that have been taking place at the international plane as well as in other jurisdictions. Throughout, the article seeks to ultimately relate disability to the South African workplace. It is submitted that human rights jurisprudence has been slow in harnessing equality as a normative tool for overcoming prejudice and indifference in the workplace environment. However, in the last two decades or so, there has been a paradigm shift, with disability emerging as a human rights issue at international and domestic levels. The growing recognition of the concept of reasonable accommodation as a mechanism for realising equality for people with disabilities in the workplace, is one of the most promising signs of a new approach to disability.
Open Access
Huber, natural law and the reformational basis of the iurisprudentia universalis
(Faculty of Law, University of the Free State, 2005-12) Raath, A. W. G.; Henning, J. J.
English: Ulrich Huber's work, De Jure Civitatis, contains the first serious effort to apply the Reformational perspectives on natural law to the field of Public Law. Not only did he integrate the perspectives on natural law with his views on Public Law generally, but he used the idea of natural law as the basis for jurisprudence as a whole (iurisprudentia universalis). In his opposition to the natural law theories of Bodin, Hobbes and Pufendorf, Huber maintained the perspective that law and justice cannot be seen as the products of utility or be determined simply by their usefulness. To Huber the principles of good and bad, lawful and unlawful, just and unjust, are based on immutable principles superceding human manipulation. For these reasons, Huber emphasises the fact that natural law is not the product of man's reason, but is based on the eternal will of God. However, man is able, with his reason, to determine the will of God from its revelation in God's moral law. In effect, then, God's eternal law is the fundamental source of natural law. As such the validity of natural law principles are not subject to an agreement among men, or to the principles of civil law, but they precede the state and the authority of government. Not only do these precepts of natural law apply as normative provisions to all elements of Public Law, but also to the rights of man (among others to life and property) irrespective of the nature and composition of the state. Huber's response to Hobbes's natural law theory in particular, highlights the importance of establishing the principles of law and justice not susceptible to the manipulation of political authorities and government authority. As such Huber's theory of natural law was not only an important contribution in his own time, but he postulated an alternative which may serve as an essential corrective in legal systems where the formal notion of the state subject to law, does not penetrate to the level of informing the material idea of the law state in a fundamental sense.
Open Access
The impact of Scholasticism and Protestantism on Ulrich Huber's views on constitutionalism and tyranny
(Faculty of Law, University of the Free State, 2004) Raath, A. W. G.; Henning, J. J.
English: Ulrich Huber's (1636-1694) contribution to public law was initiated with his lectures on the general principles of constitutional law at Franeker. The fruits of his work culminated in his De Jure Civitatis. The era in which Huber produced this work was generally characterized by the emergence of rationalism and enlightenment in Dutch jurisprudence. More specifically Huber's work reflects the influence of the transition from enlightened absolutism to democratic government based on the will of the subjects. His views on popular sovereignty culminated in Huber's theory of limited government and resistance to tyranny. A study of the Latin text of Huber's pioneering work reveals valuable perspectives on these trends in the transition of Dutch jurisprudence from scholasticism to enlightenment.
Open Access
Japie Neser en die Afrikaneropstand van 1914-1915: rebel sonder/met 'n rede?
(Faculty of the Humanities, University of the Free State, 2014) Wessels, Andre
The decision taken by the government of General Louis Botha to actively deploy the Union (of South Africa’s) Defence Forces in support of the Allied cause during the Great (later known as the First World) War of 1914-1918, elicited strong negative reactions from a portion of South Africa’s white Afrikaans-speaking community. In due course, nearly 12 000 Afrikaners took up arms against their lawful government. One hundred years later, the Afrikaner rebellion of 1914-1915 is still a controversial episode in South Africa’s history. In this article the events of 1914 (and their aftermath) are revisited by analysing the reminiscences of two-time rebel, Commandant Jacob Petrus (Japie) Neser. (During the Anglo-Boer War of 1899-1902 he was a Cape rebel in Boer ranks.) His reminiscences shed light on the rebel activities in the Orange Free State, with special reference to the role played by General Christiaan de Wet. To what extent was Neser a rebel without (or with) a cause? How should the rebellion be evaluated from a military point of view? Is it unfair to label the 1914-1915 rebellion as a farce in the veld? These are some of the issues that are addressed in this study.
Open Access
'n Krygsteoretiese evaluering van die militêre optrede van generaal JH (Koos) de la Rey ter voorbereiding van en tydens die slag te Tweebosch-De Klipdrift, 7 Maart 1902
(Faculty of the Humanities, University of the Free State, 2011) Raath, Andries
In this article an assessment is made of the military operations of General JH de la Rey during his preparations for the conflict and the military tactics employed during the battle of Tweebosch-De Klipdrift. The application of the criteria for determining the relative success of war operations enables us to conclude that the outcome of the battle was due to a number of principles operating in De la Rey’s favour. De la Rey’s successful application of these principles enabled him to score a significant success at Tweebosch-De Klipdrift the speed with which he massed his men at the crucial points of the conflict; his ability to stick to the objective identified; his seizing of the initiative and maintaining it; the unity of command he maintained throughout; his ability to keep his plans clear and simple; the element of surprise operating in his favour, and the fact that he allocated and applied his forces economically.
Open Access
Legal evaluation of affirmative action in South Africa
(Faculty of Law, University of the Free State, 2001) Pretorius, J. L.
English: With its equality jurisprudence only in its infancy stage, affirmative action will provide a difficult challenge to the Constitutional Court. Employment equity and affirmative action, like other projects of social transformation translated into law, need to be balanced with individual and collective needs of security, continuity and national integration. The specific challenge facing the court will be to integrate its approach to affirmative action with its endorsement of the notion of substantive equality and the normative standards it has developed for the determination of unfair discrimination. It is submitted that the latter do provide at least a rudimentary focus, which is sensitive and open-ended enough to accommodate the complex array of competing interests at stake in affirmative action disputes. In this article, the implications of the court's equality approach for affirmative action are considered, with reference to some pertinent issues, such as the applicable standard for the constitutional review of affirmative action, and the fairness and proportionality of affirmative action measures (including the problem of the over- or underinclusiveness of affirmative action). The present state of South African case law on the subject is considered, with comparative references to approaches adopted in other jurisdictions.
Open Access
Political Covenantalism, sovereignty and the obligatory nature of law: Ulrich Huber's discourse on state authority and democratic universalism
(Faculty of Law, University of the Free State, 2004) Raath, A. W. G.; Henning, J. J.
English: Ulrich Huber's De Jure Civitatis, published in Latin, has never been translated into any other language, making this a relatively unknown source in constitutional law. In this work Huber responds to the state absolutism of Machiavelli and Hobbes. Although Huber objects strongly to Hobbes's enlightened absolutism, his own theory of the double social contract scheme harbours distinct elements of political universalism.The possibilities for political resistance by subjects in the state are very limited. Although Huber's theory of constitutionalism prepared the way for the enlightened individualism in the theories of Locke and Rousseau, his constitutional law theory shows a clear preponderance towards political absolutism.
Open Access
Prosecuting the main perpetrators of international crimes in Eritrea: possibilities under international law
(Faculty of Law, University of the Free State, 2008-12) Mekonnen, D. R.; Pretorius, J. L.
English: A growing international consensus has emerged in the last few decades on the need to prosecute egregious violations of international law. In this regard, the establishment of the International Criminal Court (ICC) is seen as a landmark development in the global protection of international human rights and humanitarian law standards. Since its independence in 1991, Eritrea has experienced heinous violations of international law. The violations amount to international core crimes, as defined by the ICC Statute and customary international law. These include crimes against humanity, war crimes and the crime of aggression. There are consistent reports, as well as documentary and testimonial evidence from reliable sources on this. Accordingly, a number of high-ranking government officials may be reasonably suspected of involvement in the perpetration of international crimes in Eritrea. However, Eritrea is not a state party to the ICC Statute and this means that many of the international crimes perpetrated in the country may not fall under the jurisdiction of the ICC. On the other hand, violations are continuing with impunity, as there are no effective domestic remedies to rectify the problem, giving rise to the need for immediate intervention by the international community. The article discusses the legal implications of the ICC Statute with regard to international crimes committed in Eritrea before and after the coming into effect of the Statute. Drawing on the latest developments of international criminal law, it explores possible options for the prosecution of the main perpetrators of international crimes pursuant to Security Council referral as stipulated under article 13(b) of the ICC Statute.
Open Access
Publiekregtelike estoppel, billikheid en die ontwikkeling van die gemenereg: 'n vonnisbespreking van Eastern Cape Provincial Government v Contractprops 25 (Pty) Ltd en Eastern Metropolitan Substructure v Peter Klein Investments (Pty) Ltd: chronicle
(Faculty of Law, University of the Free State, 2005-12) Raath, A. W. G.
Abstract not available
Open Access
The reply of the Eritrean government to ACHPR's landmark ruling on Eritrea: a critical appraisal
(Faculty of Law, University of the Free State, 2006) Mekonnen, D. R.
English: This article assesses the official and most recent stance of the Eritrean government on the illegal detention of eleven prominent Eritrean political personalities who remain behind bars since September 2001. The objective is to evaluate the unlawful detention pursuant to relevant Eritrean laws, namely: the 1993 "Interim Constitution" of Eritrea; the transitional codes of Eritrea which include the Penal, Criminal Procedure, Civil and Civil Procedure Codes; and other laws that amended and supplemented some of the above acts. The article critically examines the grounds which have led to the detention of the victims and analyses the legality of such reasons according to operational Eritrean laws. The contribution will also assess the prolonged duration of detention (detention without trial) and the justifications of the government for such a prolonged detention. It is submitted that the grounds of detention and the justifications for the prolonged detention, as corroborated by the Eritrean government, are ill-founded and have no legal basis. The assessment is based on the latest official account given by the Eritrean government about the detention of the officials. This account was given in a letter sent to the African Commission on Human and People's Rights upon the Commission's landmark ruling against Eritrea in November 2003.
Open Access
Tussen Afrikanereenheid, patriotisme en rebellie: 'n rekonstruksie van die transformasie van die politieke denke van Genl. JH De la Rey voorafgaande aan die Afrikanerrebellie 1914-1915
(Faculty of the Humanities, University of the Free State, 2014) Raath, Andries
On the eve of the Afrikaner Rebellion, 1914-1915, General JH (Koos) de la Rey was at the apex of a political and personal transformation in his career. He had finally decided to physically oppose the Union Government’s policy to support the British war cause to invade German South-West Africa. De la Rey was now basically committed to launch his rebellion from the military camp at Potchefstroom and to lead a bloodless coup by hoisting the Republican flag (Vierkleur) with the support of senior officers from the ranks of the Union Defence Forces and move towards Vereeniging. At the culmination of De la Rey’s decision to take the lead in this supposedly bloodless coup, he had parted ways with Niklaas van Rensburg, the Visionary (“Siener”), who had exerted considerable influence on De la Rey since the Anglo-Boer War. Although it is difficult to determine at which point the Siener’s influence over De la Rey was replaced by De la Rey’s headstrong determination to follow his own will, it is clear that by the time of his death De la Rey had already committed himself to lead the Rebellion from Potchefstroom. This article reconstructs De la Rey’s political transformation from sources – many hitherto unpublished – in the De la Rey family as well as from his circle of close friends and associates.
Open Access
Ubuntu versus the core values of the South African Constitution
(Faculty of Law, University of the Free State, 2009-12) Keevy, I.
English: At the dawn of South Africa's new era of constitutionalism the Constitutional Court introduced "African law and legal thinking" and ubuntu to South African jurisprudence as part of the Constitution's source of democratic values. Whereas the Constitutional Court averred on the one hand that African law sustains firmly entrenched gender inequality, it was contended on the other hand that ubuntu is "in consonance with the values of the Constitution in general and the Bill of Rights in particular". This article deconstructs the concepts "African law and legal thinking" and ubuntu and contends that ubuntu, African law and African religion are not only inseparable but that ubuntu - the basis of African law - sustains the deep-seated patriarchal hierarchy and entrenched inequality in traditional African societies. This article concludes that ubuntu "is [not] in consonance with the values of the Constitution in general and the Bill of Rights in particular".
Open Access
The unborn and A, B, & C v Ireland: chronicles
(Faculty of Law, University of the Free State, 2010-06) De Freitas, S. A.; Myburgh, G. A.
A, B, and C v Ireland (ABC-case) arose from an application lodged on 15 July 2005 to the European Court of Human Rights, which was directly referred to the Grand Chambers (thus indicating the importance of the case) for a hearing which commenced on 9 December 2009. The complaints were briefly the following: the third applicant complained that the restriction on abortion, and the lack of clear legal guidelines regarding the circumstances in which a woman may have an abortion to save her life, infringed upon her right to life under Article 2 of the European Convention on Human Rights.
Open Access
The unresolved search for the proper standard of review of affirmative action: Solidarity obo Barnard v SAPS
(Faculty of Law, University of the Free State, 2013-12) Pretorius, J. L.
In Solidarity obo Barnard v SAPS, the Supreme Court of Appeal (SCA) set aside the order of the Labour Appeal Court (LAC), which upheld the decision of the National Commissioner of Police not to appoint a white female (Barnard) to the position of superintendent in the National Evaluation Services Division of the South African Police Service (SAPS). The most important issue raised by the judgments is the proper standard of review of affirmative action measures in terms of section 9(2) of the Constitution and section 6(2)(a) of the Employment Equity Act (EEA). The Labour Court (LC), the LAC and the SCA all subscribed to different versions of what the standard of review ought to be. In so doing, they also applied different interpretations of the leading judgment of the Constitutional Court on affirmative action, Minister of Finance v Van Heerden. In this note, the different interpretations will be identified and analysed.