Constitutional Law and Philosophy of Law

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Open Access
African philosophical values and constitutionalism: a feminist perspective on Ubuntu as a constitutional value
(University of the Free State, 2008) Keevy, Ilze; Raath, A. W. G.
English: Since 1995 the South African Constitutional Court has contended that it would no longer entertain only Western thought and legal thinking but also African law and legal thinking as the values of all sections of society must be taken into account in South Africa’s open and democratic society. The Court acknowledged ubuntu as part of South Africa’s jurisprudence and fused Western and African jurisprudence into a new South African “rainbow” jurisprudence. But beneath this miraculous fusion lies a volatile philosophical relationship of two ancient patriarchal philosophies which resulted in the erosion of African values and innumerable injustices against the African Other. Like Greek philosophy, Western philosophy has always been plagued by philosophical prejudice towards women, slaves and barbarians. Racism, however, only entered the equation of Western philosophy when the West had to justify their trade in twenty million African men, women and children as African chattel slaves in the seventeenth century. This crime against humanity was justified in the name of Christianity by philosophers and clergy alike. Whilst the Enlightenment philosophers proclaimed human equality and individual liberties in the eighteenth century they also fuelled a “new racism” which stereotyped Africans as inferior and subhuman. Not only did the Otherness of Africans result in racial segregation in the United States of America in 1883, it also legitimised Western colonisation of the “Dark Continent”. Under the banner of the cross, Western colonial powers embarked on their Christian civilising mission of the African continent: destroying African trade patterns, ancestral lands, self government, tribal systems, African law, cultures, belief systems and values. It was, however, not these factors, the colonial genocides in Congo Free State and German South-West Africa or Apartheid South Africa’s crime against humanity which resulted in the lingering inferiority complex Africans experience on the African continent, but the most destructive weapon wielded by the West: the “cultural bomb”, which eroded African values. The publication of Temple’s Bantu Philosophy in 1945 did not only bring proof that traditional Africans have a collective philosophy but also sparked a heated international and national philosophical debate. In an attempt to structure the discourse on African philosophy Oruka introduced his six trends in African philosophy. According to Oruka, ethnophilosophy (or ubuntu) represents the collective philosophy, or ubuntu, of either an African community or Africa as a whole; sage philosophy illustrates that rational thought prevails in philosophical sages; political philosophy contains the liberation philosophies of African leaders who envisaged the rekindling of eroded traditional African values; Negritude is described as the “sum total of African values”; professional African philosophy is African philosophy in the strict sense produced by African philosophers; the hermeneutical approach attempts to reconstruct African reality in post-colonial Africa; and the literary trend illustrates the devastating effect of Western subjugation of the African Other. The debate on African philosophy illustrates that there is no homogenous way of African thinking and that professional African philosophers, modern Africans, African theologians and African feminists reject traditional African modes of thought. The Constitutional Court claims ubuntu values are in line with the Constitution in general and the Bill of Rights in particular but this study brings evidence to the contrary. Not only are ubuntu values represented in traditional Africa’s closed, strong communitarian societies unique and not universal, but ubuntu “moral philosophy” proves to be a religious philosophy. Whilst sec. 15(1) of the Constitution guarantees freedom of religion one has to question why the Court entertains a religious philosophy such as ubuntu in its deliberations and not other religious philosophies. The Constitutional Court, African Renaissance, the Moral Regeneration Movement, the Ubuntu Pledge, the Heartlines Project and other programmes throughout South Africa aspire to revive ubuntu’s eroded traditional African values. African feminists, African theologians and modern Africans reveal that ubuntu fuels inequalities, sexism and xenophobia and that ubuntu does not comply with sec. 39(1) of the Constitution. Ubuntu is neither in line with international or regional human rights and gender mechanisms nor “the Constitution in general and the Bill of Rights in particular”.
Open Access
Analysing the three-fold relationship between corruption, socio-economic rights and social justice in South Africa
(University of the Free State, 2023) Morisse, Taylor Riley; De Man, Annelie
This study analyses the three-fold relationship between corruption, socio-economic rights, and social justice in South Africa. This analysis consists of a review of three concepts and the relationship between these concepts in a South African context. Referred to as the three core concepts, the research problem that this study addresses and the research questions that emanate from it revolve categorically around (a) corruption, specifically governmental corruption; (b) human rights, specifically socio-economic rights; and (c) social justice. The aim of this study is two-fold. First, this study aims to combine academic comprehension of these core concepts. This study's second and overriding aim is to establish how these concepts relate, this second aim relates directly to the objective of this study which is to analyse the three-fold relationship between corruption, socio-economic rights, and social justice in South Africa. To establish this three-fold relationship between these concepts, each concept is investigated in terms of its attributed meanings, suggested consequences, assigned obligations, and debated achievement views. This investigation is done by analysing ample differing academic views. As it relates to the first core element of this study, corruption within government in South Africa is probed with the objective possibly to show its extent and gravity as its existence is well documented. The consequences of corruption within government are elucidated due to their potential contribution to understanding this element's role within this three-fold relationship. A commonly suggested consequence of corruption within government is that it adversely affects the fulfilment of human rights. To understand whether anything is undermining human rights fulfilment in South Africa, an assessment of the respect, protection, promotion, and fulfilment of human rights is applicable. Regarding the evaluation of human rights, the scope of this study is limited to the assessment of two socio-economic rights recognised in the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘙𝘦𝘱𝘶𝘣𝘭𝘪𝘤 𝘰𝘧 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢, 1996 (𝘵𝘩𝘦 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯). Note below the applicable sections of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 that guarantee these rights and the limitations of this study. Sections 27(1)(a)-(c) of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 guarantee the following socio-economic rights: (a) everyone has the right to access healthcare (including reproductive healthcare), (b) everyone has the right to access to sufficient food and water, and (c) everyone has the right to access to social security. This study is limited to assessing the right to access healthcare as contained in Section 27(1)(a). This assessment includes the evaluation of the availability of pre-exposed HIV/AIDS (Human Immunodeficiency Virus Infection and Acquired Immune Deficiency Syndrome) medications for mother-to-child transmission, including nevirapine, but excludes the evaluation of reproductive healthcare. The space limitation of this study does not allow for this subset of rights to be addressed. Section 29 of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 guarantees that everyone has the right: (a) to basic education, including adult basic education and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible. This study is limited to assessing the right to a basic education as contained in Section 29(a). This assessment excludes the evaluation of adult basic education due to the space limitation of this study. Therefore, the assessment of corruption within government in national departments in South Africa focuses on the Department of Health and the Department of Education as these departments are arguably the national departments responsible for enabling the realisation of the rights contained in Sections 27(1)(a) and 29(a) of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯. Considering modernity and the aim of providing an updated viewpoint, it must be acknowledged that governments have ever changing variables, when assessing a government, ongoing changes and challenges must be considered. The inclusion of current events does this. Befittingly, corruption in state-owned enterprises as it relates to the investigation into state capture in South Africa carried out by the 𝘑𝘶𝘥𝘪𝘤𝘪𝘢𝘭 𝘊𝘰𝘮𝘮𝘪𝘴𝘴𝘪𝘰𝘯 𝘰𝘧 𝘐𝘯𝘲𝘶𝘪𝘳𝘺 𝘪𝘯𝘵𝘰 𝘈𝘭𝘭𝘦𝘨𝘢𝘵𝘪𝘰𝘯𝘴 𝘰𝘧 𝘚𝘵𝘢𝘵𝘦 𝘊𝘢𝘱𝘵𝘶𝘳𝘦, 𝘊𝘰𝘳𝘳𝘶𝘱𝘵𝘪𝘰𝘯 𝘢𝘯𝘥 𝘍𝘳𝘢𝘶𝘥 𝘪𝘯 𝘵𝘩𝘦 𝘗𝘶𝘣𝘭𝘪𝘤 𝘚𝘦𝘤𝘵𝘰𝘳, 𝘪𝘯𝘤𝘭𝘶𝘥𝘪𝘯𝘨 𝘖𝘳𝘨𝘢𝘯𝘴 𝘰𝘧 𝘚𝘵𝘢𝘵𝘦 (the Zondo Commission) is included because it is the most recent investigation into corruption within government in South Africa. The findings of the Zondo Commission are included to demonstrate that it is not only corruption in national departments that has a potential plummeting effect on government funding in South Africa. Arguably, it is also corruption in state-owned enterprises that erodes the availability of government resources.¹ Although there are other variables that impact the availability of government resources this study is limited to the assessment of the above mentioned. Given the last core element of this study, the conceptual idea of social justice and what is believed to be necessary to achieve social justice is analysed to understand whether it is possible to achieve social justice in South Africa if socio-economic rights are not respected, protected, promoted, and fulfilled for everyone. An idea of social justice is to see all people be equal under the law and have equal opportunities to develop their potential.² Social justice includes the fair distribution of rights, resources, and opportunities.³ The achievement of social justice within a society is necessary because its potential to enable and promote human rights fulfilment including the fulfilment of socio-economic rights, redress injustices, ensure equality, create opportunities and an overall better standard of living.⁴
Open Access
Black spaces: the Group Areas Act, the material boundaries of life and grievability
(University of the Free State, 2023) Goba, Nosipho Salazi; Van Marle, K.
My aim in this thesis is to unpack the ways in which the Group Areas Act of 1950 and apartheid spatial planning more broadly was not only concerned with who had access to socio-economic rights but also with deciding which lives were valuable and thus grievable. The spatial expression of (post)apartheid South African life is undoubtedly racialised, gendered and classed. The central theme of this research project is to critically engage apartheid geography through the lens of Judith Butler’s notion of “grievability” as put forward in 𝘗𝘳𝘦𝘤𝘢𝘳𝘪𝘰𝘶𝘴 𝘓𝘪𝘧𝘦: 𝘛𝘩𝘦 𝘗𝘰𝘸𝘦𝘳𝘴 𝘰𝘧 𝘔𝘰𝘶𝘳𝘯𝘪𝘯𝘨 𝘢𝘯𝘥 𝘝𝘪𝘰𝘭𝘦𝘯𝘤𝘦 𝘢𝘯𝘥 𝘍𝘳𝘢𝘮𝘦𝘴 𝘰𝘧 𝘞𝘢𝘳: 𝘞𝘩𝘦𝘯 𝘪𝘴 𝘓𝘪𝘧𝘦 𝘎𝘳𝘪𝘦𝘷𝘢𝘣𝘭𝘦? as well as Giorgio Agamben’s “bare life” as put forward in 𝘏𝘰𝘮𝘰 𝘚𝘢𝘤𝘦𝘳: 𝘚𝘰𝘷𝘦𝘳𝘦𝘪𝘨𝘯 𝘗𝘰𝘸𝘦𝘳 𝘢𝘯𝘥 𝘉𝘢𝘳𝘦 𝘓𝘪𝘧𝘦 to explore an understanding of spatial injustice that is informed by the (re)production of exclusionary conceptions of a normative human those falling outside of which cannot be mourned publicly. One of the main arguments in this project is that spatial justice extends beyond the geographic arrangements of the material realm into the recognition and restoration of humanity and dignity. This thesis examines how social markers impact the ways in which certain people can navigate space and the results of not belonging in certain spaces. As a research project grounded in critical race theory, feminist theory, queer theory, class analysis and disability rights, this thesis pushes me to think about space and how we inhabit space as marginalised people in (post)apartheid South Africa. I turn to black feminist geographic thought for a grounded exploration of pathways to achieving spatial justice and conducting a critical race spatial analysis of the endurance of apartheid geography.
Open Access
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
The constitutional framework for broad-based black economic empowerment
(University of the Free State, 2010) Janse van Rensburg, Adri; Pretorius, J. L.
The negative impact of the apartheid regime’s policies on the social, political and economic conditions of the majority of the population is well established and persists into the present day South Africa. The South African Constitution acknowledges this negative legacy, but also contains a vision of the type of society it envisages for South Africa. The inclusion of values, principles and rights on which this new society is based does not, by virtue of its design, erase all the consequences of the previous discriminatory policies. Simply removing discriminatory legislation and practices cannot alleviate the injustice and poverty that resulted from 40 years of oppressive legislation and government policies. Implicit in this constitutional vision are remedial and restitutionary measures for the achievement of the constitutional goal of a free, prosperous and egalitarian South African society. Illustrative of this fundamental commitment, several constitutional provisions, directly or indirectly, sanction remedial measures to address remaining injustices. Different types of remedial measures are envisaged, namely affirmative action programmes, a government policy of preferential procurement, and Black Economic Empowerment. The constitutional imperative for policy tools to transform the South African economy in particular, by means of black economic empowerment is therefore clear. In this study the legacy of apartheid, with specific reference to the economic aspect thereof, is researched. From this it becomes clear that transformation in the way economic resources are divided is necessary. The enactment of specific legislation dealing with the subject resulted from the recognition of the need for regulatory intervention to give momentum to the process of reform. The B-BBEE Act and its Codes of Good Practice provide the foundation for the drafting and implementing of the BBBEE programme. The B-BBEE programme’s operation is analysed in order to draw conclusions on the constitutionality thereof. Within the framework of the Constitution, several provisions empower the state to adopt remedial measures to correct systemic injustice. The most apparent of these is the right to equality in section 9. It provides that everyone is equal before the law and has the right to equal protection and benefit of the law and entrenches the right not to be discriminated against, either directly or indirectly, on a number of specifically enumerated and analogous grounds. Section 9(2) makes specific provision for remedial measures, not as an exception to the equality guarantee, but rather an extension thereof — a restitutionary equality conception. In the Preamble to the B-BBEE Act it is stated that one of the objectives with the Act is to “promote the achievement of the constitutional right to equality”. The right to equality therefore occupies a central place in any constitutional discussion on the B-BBEE programme. The position on the constitutional validity of affirmative action measures, and therefore also the B-BBEE programme, is currently governed by the Constitutional Court’s decision in Minister of Finance v Van Heerden, where the Court formulated three elements for a valid section 9(2) measure. The Court’s approach in the Van Heerden case was therefore analysed in order to make a determination of the constitutionality of black economic empowerment measures. However, in order to place B-BBEE in its constitutional context the totality of constitutional provisions which touch on the programme, that is both mandating and limiting provisions, was considered. The practical operation of the programme was analysed and that information was used to draw conclusions on the constitutionality of the programme when placed in the framework provided by the relevant constitutional provisions. Recommendations were also offered which could address some of the problematic aspects of the programme identified.
Open Access
The constitutionality of categorical and conditional restrictions on harmful expression related to group identity
(University of the Free State, 2014-01) Marais, Maria Elizabeth; Pretorius, J. L.
English: The theories of truth and the marketplace of ideas, of democracy, and of human dignity underlie the constitutional protection of freedom of expression and simultaneously set boundaries with regard to such protection. The value of expression in terms of these theories firstly determines the scope of protection afforded to particular forms and incidences of expression. There exists an inherent tension in the appeal of each of the values and interests that is involved. Freedom of expression is central to the development of human personality, but may also harm inherent human dignity. The response to discriminatory expression may eventually promote equality. Free expression may be instrumental to the increase in knowledge and to the maintenance of democracy, but may also discourage target groups from participating in the marketing of ideas and in the democratic process. Secondly, the extent to which a discriminatory statement or expressive conduct serves the values and interests of knowledge, democracy and dignity is a relevant consideration in the context of proportionality analyses. It determines the weight to be assigned to the right to freedom of expression relative to other rights or interests that are involved. The Constitution, in terms of section 16(2)(c), categorically excludes, from constitutional protection, “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. “Hate speech” on these grounds constitutes a proven threat to constitutional democracy. Expression of this nature should be criminalised. Circumstances may exist where “hate speech” on other grounds poses a similar threat and should likewise be criminalised. Current atrocities in South Africa related to homosexuality and nationality constitute such circumstances. This approach is in accordance with South Africa’s obligations in terms of international agreements. Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act categorically prohibits a narrowly defined field of expression, including expression under section 16(2)(c) of the Constitution. The prohibition does not criminalise expression and does not apply to bona fide engagement in expression stipulated in terms of section 16(1) of the Constitution. Within the limited field that remains, it prohibits expression related to any prohibited ground that could reasonably be construed to demonstrate a clear intention to be hurtful, harmful, or to incite harm or promote or propagate hatred. The prohibition will be constitutional if it can be accepted that the expression will, in all given circumstances, constitute or promote unfair discrimination. Considerations in the South African context of the values that inform the protection as well as the restriction of expression, and of international obligations, lead to a positive conclusion in this respect. Of essential importance is the fact that the prohibition does not stifle debate about issues, even if statements relevant to the debate offend people with reference to their group identity. Section 6 of the Act prohibits unfair discrimination, subject to a fairness analysis. It is often not possible to determine whether the effect of discriminatory expression in the broad societal context is indeed detrimental. In the media context, the unequal balance of power in given circumstances reinforces the risk that inequality will be promoted. In the determination of fairness, care should be taken not to restrict expression without sufficient context-related indications of disadvantage. At the same time, the obligation to prohibit unfair discrimination, and the categorical restriction in terms of section 10, may not be disregarded. In the light of section 192 of the Constitution, these considerations are particularly significant with respect to broadcasting. The present broadcasting codes lack the necessary related guidelines and should be amended accordingly.
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
Die magsfaktor in internasionale verhoudinge
(University of the Free State, 1975-06) Barnard, Lukas Daniel; Wessels, F. J. H.
Open Access
'Disabled people' and the search for equality in the workplace :. an appraisal of equality models from a comparative perspective
(University of the Free State, 2010-12) Ngwena, Charles Gideon.; Pretorius, J. L.
English: Disabled people constitute a historically disadvantaged and marginalized group that experiences discrimination in the workplace among other socio-economic sectors. In this thesis, my focus is on searching for an inclusive type of equality that could inform the interpretation and application the equality clause in the South African Constitution. My aim is neither to arrive at a mathematically constructed abstract type of equality, nor to produce a blueprint of equality that puts finality on the debate on equality. Rather, it is to engage with equality discursively with a view to contributing towards an ongoing development of a juridical as well as philosophical path for constructing the normative architecture of a type of equality that is more responsive to the equality needs of disabled people. The spotlight is on developing a type of equality that is normatively inclusive and transformative as to be capable of sufficiently meeting the quest for political, and more crucially, economic recognition of disabled people. I use a repertoire of analytical techniques to explore and appraise the inclusiveness and responsiveness of contemporary approaches to equality. At a more general level, the discourse employs comparative analysis. However, whilst comparative analysis in this thesis includes comparing and contrasting the equality jurisprudence of different jurisdictions, and in this instance, comparing and contrasting South Africa with Canada and the United States, it is, nonetheless, a relatively small part of my comparative discourse. It is not the primary sense in which the thesis develops a comparative discourse. The greater part of my discourse employs a comparative approach to mean comparing and contrasting the underpinning moral compasses of formal equality and substantive equality with a view to revealing the capacities of each type of equality to be responsive to the equality aspirations of disabled people. Over and above comparative analysis, I use, in the main, the historicity of apartheid, the social model of disability, and feminist theory and practices as analytical techniques for interrogating the responsiveness of notions of formal equality and substantive equality. From insights drawn mainly from the social model of disability and feminism, I construct disability method as a syncretic and legal method for interrogating the normative sufficiency of equality laws and praxis. Disability method is the study’s principal interpretive method for ensuring that the appraisal of pertinent laws, policies or practices is always conscious of the status of disabled people as a disadvantaged and vulnerable historical community, and the imperative of transforming erstwhile culturally, and even more crucially, economically oppressive norms. I contend throughout the study that law does not carry inherently neutral values that, as a matter of course, allow for searching for alternative paradigms of equality. Ultimately, it is the social construction of disability that holds the key to interrogating equality norms in a serious manner and not merely restating what the legislature and the judiciary proclaim about disability and equality. In this sense, by way of clarifying the methodological and philosophical orientation of this study, it bears stressing that the analytical approach that it adopts differs markedly from conventional legal discourses that only use an ‘internal critique’, as it were, to critically evaluate legal norms by using norms derived from law in order to determine whether the law is living up to the standards which it professes to hold and whether the justice promised by those standards is being dispensed evenly across all social groups. Though ‘internal critique’ is part of how some of the arguments in this study are framed, it is only a small part. The greater part of my equality discourse derives from external critique. It derives from appraising the law using ethical or social values that are external to the law but which I argue ought to shape the law. Using disability method, and drawing from the thesis of a heterogeneous civic public sphere, I situate the normative ethical framework for substantive equality within a type of participatory democracy in which equality is constructed dialogically and not unilaterally or hegemonically. I treat equality as a component of democratic ethics that result not from a given centre but from an egalitarian dialogue between disabled people and enabled people. I argue for inclusive heterogeneous equality as the operative equality template for eradicating disablism in an imagined participatory democracy in which respect for pluralism and the eradication of dominance and subordination among social groups are core foundational ethics.
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
Gender trouble in the church: promoting associational autonomy through ontological difference
(University of the Free State, 2023) Vorster, Janko; de Freitas, S.
This dissertation investigates the complex interplay between a pluralistic, liberal, and democratic state's duty to maintain diversity and protect the identities of individuals and groups with irreconcilable worldviews, focusing on the intersection of transgender identity and religious associations. The study grapples with the challenges of defining key concepts in the discourse of religious rights and diversity within a liberal democracy, avoiding simplistic definitions. The examination reveals the limitations of the prevailing discourse, which often assumes a secular neutrality that overlooks religion's role in shaping communal identity. It also explores the nuances of transgender rights, recognizing the importance of gender identity while respecting the traditional perspectives within religious associations. International legal developments highlight the tension between advocating transgender rights and upholding the principles of liberal democracy, revealing potential biases within the Yogyakarta Principles. The study underscores that claims based on transgender identity are ontological rather than empirical scientific facts. In the context of religious employment exemptions, the doctrinal core approach is critiqued in favour of the organic or permeated ethos approach, which respects the communal perspective and substantive autonomy of religious associations. Hypothetical scenarios further emphasise the doctrinal core approach's inadequacy in addressing issues related to religious exemptions and discrimination involving transgender individuals. Overall, the dissertation calls for an inclusive and nuanced approach that upholds the ideals of freedom, democracy, and diversity, while emphasising the need to safeguard the rights and identities of both transgender individuals and religious groups within a pluralistic society.
Open Access
Die grondwetlikheid van die vasstelling van maksimum werkure ingevolge die Wet op Basiese Diensvoorwaardes
(University of the Free State, 2009-11) Marais, Maria Elizabeth; Pretorius, J. L.
English: The purpose of the Basic Conditions of Employment Act is to advance economic development and social justice by fulfilling the primary objects of the Act which are to give effect to and regulate the right to fair labour practices conferred by section 23(1) of the Constitution, and to comply with obligations incurred by the Republic as a member state of the International Labour Organisation. Section 9(1) read with section 10(1) of the Act has the effect that employees covered by the sections 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 in terms of employment agreements with different employers, an option that entails certain disadvantages. The study investigates the constitutionality of the limitation of the opportunity to work for longer hours for the same employer. Reference to comparative law focuses on the legal position in America, Germany and Canada. Throughout the study the notion that work involves more than a trade agreement in terms of which labour is sold, is a basic theme. Constitutional perspectives on the concepts human dignity and freedom, with reference to freedom of the person as well as freedom of contract, are discussed. A direct relationship between work and employment, and the development of personality and human dignity, is indicated. The discussion leads to a conclusion that the relevant articles limit the rights to human dignity and freedom of the person, including freedom of contract, of the employees concerned. Human dignity is also discussed within the context of the entrenchment of socioeconomic rights. The relevant provisions are substantively assessed in terms of the reasonableness standard set by the Constitution. The conclusion is reached that the provisions cannot be accounted for on this basis. A third fundamental constitutional principle, equality, is considered. A substantive assessment in terms of the applicable test established in Harksen v Lane NO reveals that the provisions have the effect of reinforcing the disadvantaged position, owing to past discrimination, of black people and women with regard to job opportunities, which supports a conclusion that the relevant provisions constitute indirect unfair discrimination based on race, gender and socio-economic status. It furthermore appears that, although the provisions pass the rationality test that applies to provisions that regulate trade, occupation or profession, the fact that the regulating effect of the provisions violates fundamental constitutional rights, constitutes a violation of the right to freedom of trade, occupation or profession, protected by section 22 of the Constitution. The study also focuses on section 23(1) of the Constitution that determines that everyone has a right to fair labour practices, as well as on section 23(5) that confers a right to engage in collective bargaining. It appears that the provisions have a negative effect as far as work security is concerned, and therefore are unfair. The position with regard to section 23(5) is that the bargaining options of union members and employers are limited by the determination of minimum standards. The study concludes with an application of the section 36 test for the justification of limitations of constitutional rights. The adverse effects and the objects of the relevant provisions, taking into account the extent to which the provisions effectively promote the objects, are weighed up proportionally. Less restrictive means by which the objects can be promoted, are discussed. A conclusion is reached that the infringement of the constitutional rights of employees who are adversely affected by the relevant provisions, cannot be justified.
Open Access
Guidelines to achieve social justice through cooperatively governed education
(University of the Free State, 2023) van der Merwe, Juané; Reyneke, Mariëtte
One of the main objectives of our constitutional state is to establish a society based on social justice as contemplated in the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘙𝘦𝘱𝘶𝘣𝘭𝘪𝘤 𝘰𝘧 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢 1996.¹ Indeed, social justice is also one of the central visions and ideals of the South African education system.² However, the public basic education system fails to provide equal access to the opportunities and rights required to achieve social justice. While schools may be accessible, learner attendance does not necessarily equate to quality education.³ Historical geographic patterns of (dis)advantage continue to affect institutions’ capacity to provide quality education and achieve equality of opportunity and outcomes. The historical influence of race on equitable opportunities and outcomes is compounded by geography and social class.⁴ In his discussion of the education markets, Ball states that in an ideal world, every parent would have the freedom to pick any school where they want their children to be educated.⁵ In the South African reality, however, this is not the case. In fact, parents from rural areas often have access to only one or two poorly resourced schools with poorly trained teachers, leaving them with not much choice for their children’s education.⁶ These children might never enjoy the equal and quality education they should be receiving.⁷ In essence, therefore, for some, socioeconomic realities limit the constitutionally entrenched right to education.⁸ The implementation of the constitutional rights framework that enshrines equal access to quality basic education has been hindered by a number of deficiencies and failures. These include a a shortage of proficient educators and staff,⁹ an undervaluing of the pedagogical importance of the language of instruction,¹º inadequate infrastructure (classrooms and physical space),¹¹ financial constraints and school quintiles,¹² and insufficient early childhood education.¹³ While the Department of Basic Education continues to add to its complex framework of education policies, the risk is that these may function more as a vehicle for politics than being a bona fide attempt to achieve true social justice in education and work together to achieve this goal.¹⁴ Detailed policies are often issued and strong political stances taken on specific social matters, but are not accompanied by the required will or funding to address the concern in practice. One example is the Department’s promotion of Grade R education to be made compulsory, though without allocating sufficient funds to incorporate it into the formal schooling system. In this way, policies are merely symbolic and social justice remains a pipe dream.¹⁵ The failure to provide adequate school infrastructure and facilities¹⁶ also contributes to disparities in access to quality education. This causes regular disputes between the governing bodies of well-functioning schools and provincial education departments over schools’ capacity to admit additional learners.¹⁷ Additionally, numerous disputes have resulted from provincial departments’ failure to fill educator positions or their abuse of power and overreach.¹⁸ Where the different spheres of government¹⁹ and organs of state²º do not cooperate and see eye to eye on the theory and practical realisation of social justice in education, the right to education of an equal standard, and by implication, to social justice is jeopardised. The Intergovernmental Relations Framework Act (IRFA)²¹ includes a number of mechanisms and procedures to regulate the relationship and settle intergovernmental disputes between the national Department of Basic Education and provincial education departments.²² However, IRFA and the education laws are silent on alternative processes to be followed if school governing bodies and education departments, particularly in the provincial context, are locked in dispute, thus preventing the achievement of social justice. This raises the question of how the relationship between school governing bodies and education departments could be guided and governed to ensure that it is peaceful and productive. The main aim of this dissertation, therefore, is to establish what the relationship between the national Department of Basic Education, provincial education departments and school governing bodies ought to be to comply with the imperative captured in chapter 3 of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 and realise social justice in education. Secondly, the dissertation seeks to develop guidelines to assist education departments and school governing bodies to achieve the principles of cooperative governance and settle any potential disputes between them. The ultimate goal is for relationships to remain intact as a prerequisite for safeguarding and promoting a democratic education system that is based on social justice. The partnership model for public school governance envisaged by the 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢𝘯 𝘚𝘤𝘩𝘰𝘰𝘭𝘴 𝘈𝘤𝘵²³ is underpinned by the principle of cooperative governance²⁴ set out in the Constitution.²⁵ This compels the partners to cooperate in good faith. In 𝘔𝘌𝘊 𝘧𝘰𝘳 𝘌𝘥𝘶𝘤𝘢𝘵𝘪𝘰𝘯, 𝘎𝘢𝘶𝘵𝘦𝘯𝘨 𝘗𝘳𝘰𝘷𝘪𝘯𝘤𝘦 𝘷 𝘎𝘰𝘷𝘦𝘳𝘯𝘪𝘯𝘨 𝘉𝘰𝘥𝘺, 𝘙𝘪𝘷𝘰𝘯𝘪𝘢 𝘗𝘳𝘪𝘮𝘢𝘳𝘺 𝘚𝘤𝘩𝘰𝘰𝘭,²⁶ the Constitutional Court held that cooperation between school governing bodies and national or provincial government was “rooted in the shared goal of ensuring that the best interests of learners are furthered and the right to basic education is realised”. Moreover, the court in 𝘏𝘦𝘢𝘥 𝘰𝘧 𝘋𝘦𝘱𝘢𝘳𝘵𝘮𝘦𝘯𝘵, 𝘋𝘦𝘱𝘢𝘳𝘵𝘮𝘦𝘯𝘵 𝘰𝘧 𝘌𝘥𝘶𝘤𝘢𝘵𝘪𝘰𝘯, 𝘍𝘳𝘦𝘦 𝘚𝘵𝘢𝘵𝘦 𝘗𝘳𝘰𝘷𝘪𝘯𝘤𝘦 𝘷 𝘞𝘦𝘭𝘬𝘰𝘮 𝘏𝘪𝘨𝘩 𝘚𝘤𝘩𝘰𝘰𝘭²⁷ stated that the provisions in the Schools Act were: … carefully crafted to strike a balance between the duties of these various partners [governing bodies, principals, heads of department, Members of Executive Council and the education minister] in ensuring an effective education system. … [T]he interactions between the partners – the checks, balances and accountability mechanisms – are closely regulated by the Act. The Constitutional Court²⁸ went on to state: The importance of cooperative governance cannot be underestimated. It is a fundamentally important norm of our democratic dispensation, one that underlies the constitutional framework generally and that has been concretised in the Schools Act as an organising principle for the provision of access to education. Given the nature of the partnership that the 𝘚𝘤𝘩𝘰𝘰𝘭𝘴 𝘈𝘤𝘵 has created, public school governing bodies and the state should be in a close cooperative relationship, recognising the partners’ distinct yet interrelated functions. This relationship should be characterised by consultation and cooperation in mutual trust and good faith. The goals of providing quality education to all learners and developing their talents and capabilities depend on it. In practice, however, this kind of cooperation in the education sector is yet to be established. Among the challenges that currently prevent the realisation of the constitutional imperative of cooperative governance are overreach and abuse of administrative power,²⁹ tension relating to power and authority,³º failure to consult and meaningfully engage,³¹ ineffective intergovernmental structures and dispute resolution,³² and unethical leadership.³³
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
Humanity and the protection of the unborn : a jurisprudential rationale for the furtherance of the anthropological paradigm of international law
(University of the Free State, 2008-05) Myburgh, Georgia A.; De Freitas, Shaun A.
English: This thesis is primarily concerned with the legal status of the unborn in international law. It investigates the lack of jurisprudence concerning the legal status of the unborn in this area of law and contends that such a lacuna is unacceptable. The unacceptability of this lack of discourse is highlighted in light of the concept of rationality; and rationality is presented as the best alternative method to deal with the legal status of the unborn, based on various justifications showing that the current method of legal discourse is not only devoid of rationality but inadequate to deal with this problem. Rational procedural and substantive attempts are then promoted to advance the legal status of the unborn in international law. Here the thesis emphasises the importance of taking into account requirements of humanity, sensitivity to animals and fairness, and continues to investigate the irrationality of abortion jurisprudence by arguing that the sole use of human rights and more specifically, the right to life and women’s rights, as determining the legal status of the unborn is part of the problem. Rationality requires an inclusive and sensitive approach and therefore, the sole use of concepts such as human rights, to the exclusion of science, anthropology, humanity and international justice, amongst others, are argued to be irrational. Scientific and anthropological consideration is also very important, not only to present an inclusive approach, but because these disciplines present us with some of the few convincing facts that can be used to aid philosophers when dealing with a topic where assumption and argument, rather than facts, are ample. However, this thesis does not pretend that a final or absolute solution on the legal status of the unborn is possible as cultural and ethical relativism as well as ideological affiliations present a problem to obtaining a universal rational outcome on the legal status of the unborn. However, it is stated that the possibility of a universal rational outcome, which represents an improvement on the contemporary situation, does exist and therefore, it would be irrational if such possibility were not attempted on rational grounds by way of procedure and substance, taking into account requirements of humanity.
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.