Research Articles (Jurisprudence)

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Mother Earth is the pluriversal panarium of all : the living and the dead
(Unisa Press, 2023-12) Ramose, Mogobe B.
Mother Earth is the panarium of all who live and die in it. This is not restricted to human beings only. The principle of the equality of all human beings demands peaceful coexistence and mutual respect. This is not the case in conqueror South Africa despite the new constitutional dispensation inaugurated since 1994. The successors in title to conquest in the unjust wars of Western colonisation continue to insist that Mother Earth is their exclusive panarium. The conquered peoples continue to resist this insistence.
A question of underlying interests : economic justice, constitutional history and the capture of the South African state by white economic interests
(University of the Western Cape, 2023) Sibanda, Sanele; Raboshakga, Ngwako
Understanding the South African constitutional state beyond the banal framings of liberal or transformative thinking requires a reconsideration of the prevailing approach to questions of constitutional identity or character. Rather than fixating on the ideological underpinnings that mark the identity of the South African Constitution, we suggest that more may be learnt about its nature by examining the material relations that it recognises between its various subjects and the institutions it establishes. To understand why and how South African society came to be so constituted, it is imperative to interrogate how the Constitution deals with the question of material distribution. In this respect, we focus on how white economic interests impacted on South Africa's constitution-making processes at two distinct points in history, namely the making of the 1910 and post-1994 constitutions. In doing so, we seek to disturb the often uncritical, linear narratives of South Africa's constitutional history that focus on the prevailing politics and the identity of the main political actors and their political agendas. We draw attention to white economic interests, which were preeminent in the (re)constituting of South Africa. Historical events suggest that these discrete interests were key drivers in determining the nature of South African constitutionalism, which established a political and economic environment for the benefit of white interests. We contend that these interests determined the construction of the constitutional scheme by establishing the state as a key site for enabling the accumulation and preservation of white economic interests at the expense of the broader black population.
Using laptops in prisoners' cells : failing to distinguish between differentiation and discrimination, and failing to identify a prohibited ground of discrimination - Pretorius v the Minister of Justice and Correctional Services 2018 2 SACR 501 (GP)
(LexisNexis, 2023-11) Kok, Anton; Meyer, Zoe
Suid-Afrikaanse diskriminasiereg onderskei duidelik tussen blote differensiasie en diskriminasie. Blote differensiasie is meestal aanvaarbaar en howe stel 'n baie laer drempel daar vir differensiasie om grondwetlik te wees - rasionaliteit. Die Gelykheidswet 4 van 2000 spreek nie eers blote differensiasie aan nie. In Pretorius v The Minister of Justice and Correctional Services 2018 2 SACR 501 (GP) moes die hof duidelik aangetoon het tussen watter groepe gevangenes, en op watter verbode grond(e), gediskrimineer word. Die hof moes die twee toetse duidelik in gedagte gehou het - rasionaliteit vir differensiasie, en onbillikheid vir diskriminasie. Wat die hof in hierdie uitspraak moes gedoen het, was om duidelik uiteen te sit (a) wat die doel is van die relevante tronkregulasies; (b) die regverdigbaarheid van hierdie doel; (c) die verband tussen die differensiasie tussen lae-risiko gevangenes en hoe-risiko gevangenes, en die doel van die regulasies; en (d) of hierdie verband rasioneel is. Die hof het elkeen van hierdie stappe as vanselfsprekend aanvaar en in die proses onnodig met die regskonsep "diskriminasie" geworstel. Die dispuut moes eerder in terme van rasionaliteit en die Grondwet opgelos gewees het, in plaas van diskriminasie en die Gelykheidswet.
Narrating constitutional dis/order in post-1994 South Africa : a critical response to Theunis Roux
(Nomos Verlagsgesellschaft, 2024) Modiri, Joel Malesela; joel.modiri@up.ac.za
No abstract available.
The evolution of constitutionalism in conqueror South Africa. Was Jan Smuts right? An Ubu-ntu response
(Unisa Press, 2024-02) Ramose, Mogobe Benard; mogobe.ramose@up.ac.za
The ethically unjustified violence of Western colonisation continues in the economic and epistemic spheres in Africa, despite the reluctant concession by the Western coloniser to political independence. The constitutional histories of politically independent Africa are mainly the reaffirmation of the imposed domestication of the legal paradigm of the Western colonial conqueror. This is constitutionalism. With particular reference to conqueror South Africa, I take the “Union of South Africa” as the commencement of constitutionalism. General Smuts, later Prime Minister, was among three Afrikaner Generals engaged in the founding and the development of the “Union of South Africa.” He is selected here for his claim that the White colonial conquerors from Western Europe are endowed with superior intelligence. This can be used to continue the subjugation of indigenous conquered peoples into an indefinitely long future. This article challenges this claim because it is ethically untenable and fundamentally at odds with constitution-ness underlying the ubu-ntu legal paradigm. Given the evolution of constitutionalism in conqueror South Africa until the constitution of 1996, was Smuts right in his claim? In addition to the ethical indefensibility of this claim, it is argued further that the “epistemic decolonial turn” overlooks “decolonisation” as argued by Africans, and disregards humanisation—mothofatso—as the fundamental counter to the dehumanisation project of colonialism.
Is silence in the face of global injustice in the “best interests” of South African universities?
(Academy of Science of South Africa, 2025-03) Lewins, Kezia; Van Heusden, Peter; Mohamed, Nazeema; Sibanda, Sanele; Pointer, Rebecca; Reynolds, Louis; Wadee, Shabbir A.; Baldwin-Ragaven, Laurel
SIGNIFICANCE : Invited to respond, we write here not to rebut every argument advanced in the provocation piece ‘Should our universities respond to geopolitical conflicts around the world?’. This would presuppose alignment with the issues raised as the only ones germane to questions of academic neutrality in the face of injustice of genocidal proportions. Rather, we probe assumptions we consider central to the ethical responsibilities of South African universities when faced with immense human suffering. Rather, we ask: what is the cost of silence to our society and academic communities if, as once beneficiaries of global outrage and action against apartheid, we now comfortably look on so as not to be seen as taking sides?
Moving beyond the abyssal line : the possibillity of epistemic justice in the ‘post’-apartheid constitutionalism
(University of Pretoria, 2022) Niemand, Lilandi
In this article, I reflect on the idea of a ‘post’-apartheid South African constitutionalism and the related and implicated notion of Transformative Constitutionalism by emphasising its continued bondage to a colonial and apartheid past. In an effort to critically explore the ‘post’-apartheid transformative constitutional framework, I examine the endurance of colonialism as coloniality in the manner it has unfolded in the South African context. This exploration involves highlighting three constitutive elements of this endurance: linear historicism as observed in Hobbes’ social contract; the geography of reason as theorised by Schmitt; and the lines within South African society and knowledge systems as a result of what De Sousa Santos calls ‘abyssal thinking’. Although the endurance of historical colonialism as coloniality can be described in a number of ways, I deal with these specific constitutive elements in order to argue that the doctrine of transformation, which includes Transformative Constitutionalism, has largely been ineffective in its attempt to eradicate coloniality as it has failed to achieve epistemic justice for the majority of (South) Africans. I conclude by suggesting that the doctrine of transformation and, as such, Transformative Constitutionalism has served to further exclude and marginalise the knowledge of indigenous (South) African people in the ‘post’-apartheid constitutional dispensation. The project of transformation has sustained the abyssal line as it has been internalised through coloniality. As such, the ‘post’-apartheid South African dispensation remains divided by this line — essentially discarding indigenous (South) African people and their knowledge systems to the abyss. I further argue that the persistence of coloniality, sustained by the abyssal line, requires a project of conceptual decolonisation if coloniality and epistemic injustice is to be undone. In this sense, a true (South) African dispensation may be disclosed.
The development of a western-centric notion of modernity and the inclusive reconstruction thereof according to the twail principles
(University of Pretoria, 2022) M'membe, Makumya
Modernity significantly influences global action regarding social, political, and economic justice and liberation. Because of this, its flawed origins cannot simply be ignored. This article explains the development and current conception of economic, social and political modernity and shows how non-Western thought is excluded from these spheres. The article focuses on problematising he recent construction of modernity by showing how modernity is founded on Western ideals. Additionally, this article tracks the spread and universalisation of modernity by cruel and illegitimate means like colonialism and the othering of indigenous peoples. All these form the basis for an arguments that there must be a substantial reconstruction of the concept of modernity, and TWAIL’s relationship with international law is offered as inspiration for such a reconstruction.
The in- or ex-clusiveness of International Law
(Oxford University Press, 2023-02) Achiume, E. Tendayi
No abstract available.
The drive towards certainty : a short reflection on “law is/as code”, complexity, and “the uncontract”
(Pretoria University Law Press, 2022) Jooste, Yvonne
Increasingly, technology is used in the enforcement of legal rules. These changes, in addition to establishing new forms of regulation, have implications for the future functioning of the legal system. Most of the current debates around technology's impact on existing legal frameworks centre around self-driving cars and aspects of liability. Other popular examples include the United States' No Fly List that relies on data mining for predictive analysis regarding potential national security threats as well as the use of computer algorithms in judicial decisions relating to criminal sentencing and parole. In the South African context, there are plans to use smart technology including facial recognition to keep law and order (Swart "Eye on Crime" Daily Maverick 2021-03-03). In this regard, many computer scientists as well as those in the field of critical algorithm studies have pointed to the possibilities of false arrests, discrimination, and the targeting of innocent citizens by using technologies that reflect prejudice and bias rather than eliminating it. Further, technologies such as Blockchain and Machine Learning is progressively moving into the law's domain (Hassan and De Filippi "The Expansion of Algorithmic Governance: From Code is Law to Law is Code" 2017 Field Actions Science Report 89). For example, "smart contracts" are contracts that transpose legal and contractual provisions into a block-chain based agreement that guarantees execution (as above).
A future of justice inclusion: examining access to justice in South Africa through the 'ethic of care' and 'complexity'
(Brill Academic Publishers, 2022-05) Nagtegaal, Jackie; Jooste, Yvonne; yvonne.jooste@up.ac.za
In South Africa, a number of obstructions exist to realising the right to access to justice as enshrined by section 34 of the South African constitution. Globally, many countries grapple with access to justice due to a number of multi-layered and complex causes. This article explores traces, connections, definitions and perceptions related to access to justice so as to allow for a deeper understanding of persisting justice problems. It employs a multi-disciplinary approach that examines worldviews on access to justice in South Africa through the lens of what Sohail Inayatullah terms ‘other ways of knowing’. These worldviews are also considered through the framework of the ‘ethic of care’ as formulated by Carol Gilligan and connected to the notion of ‘complexity’ as understood by Yvonne Malan and Paul Cilliers. The worldviews explored represent ‘different voices’ that discloses a possibility for a future of justice inclusion. The article calls for a people-centred approach to access of justice, underpinned by notions of humility, complexity, concreteness, and particularity.
Azanian political thought and the undoing of South African knowledges
(Berghahn Journals, 2021-09) Modiri, Joel Malesela; joel.modiri@up.ac.za
This article sets out a few key questions, themes, and problems animating an Azanian social and political philosophy, with specific reference to the radical promise of undoing South African disciplinary knowledges. The article is made up of two parts: The first part discusses the epistemic and political forces arrayed against black radical thought in South Africa and beyond. A few current trends of anti-black thinking – liberal racism, Left Eurocentrism, and postcolonial post-racialism – which pose challenges for the legibility of Azanian critique are outlined. Part two constructs an exposition and synthesis of key tenets of Azanian thinking elaborated upon under three signs: ‘South Africa’, ‘race and racism’, and ‘Africa’. The aim of the discussion is to illustrate the critical, emancipatory potential of Azanian thought and its radical incommensurability with dominant strands of scholarship in the human and social sciences today. The article ultimately defends the reassertion of black radical thought in the South African academy today and underscores in particular the abolitionist drive of Azanian political thought.
Introduction to special issue: separation of powers, the judiciary and the politics of constitutional adjudication
(Routledge, 2020) Sibanda, Sanele; sanele.sibanda@up.ac.za
This special issue of the South African Journal on Human Rights arises from a general call for papers that was issued in October 2019. The special issue has come to fruition in circumstances that none of us could ever have imagined at the time of its conceptualisation. No one imagined that within six months from that date a health pandemic would sweep across the world, plunging humanity into crisis and bringing life to a virtual standstill while simultaneously redefining the norms of human movement, interaction and exchange. Indeed, the impact of Covid-19 and the regulations taken in order to protect public health were felt everywhere, including our editorial processes.
Falling through the cracks : the plight of “over-aged” children in the public education system
(Pretoria University Law Press, 2021) Arendse, Lorette
The legislative and policy framework regulating compulsory education in South Africa requires that learners beyond the age of fifteen enrol in an adult education centre to meet their educational needs. Adult education which has been called the “dysfunctional stepchild” of South African education, is poorly regulated in terms of access and quality control. Therefore, learners who are forced to leave the formal schooling sector are not necessarily guaranteed a placement in an adult education facility. This article focuses on a specific cohort of learners between the ages of fifteen and eighteen who are technically children in terms of South African law and therefore in need of special protection. In particular, the article assesses the extent to which the constitutional rights of these learners are violated by the current compulsory education legislative and policy structure. These rights include the rights to basic education, equality as well as the bests interests of the child.
(Un)constitutional amendments and Cameroon constitutions : strange bedfellows with the rule of law and constitutionalism
(Edinburgh University Press, 2021-02) Wanki, Justin Ngambu
The article examines unconstitutional constitutional amendments in the constitutional order of Cameroon dating back from 1960 to 2008. The examination reveals that all the amendments engaged within this period fail to comply with the rule of law and constitutionalism, facilitated and abetted by the three branches of government in Cameroon. The article ends by emphasising that since power is held by government only as a trust for the benefit of the people, it entails that constitutional amendments should be undertaken only when they are in the interests of the people who are the ultimate beneficiaries of the trust.
Revisiting personal immunities for incumbent foreign heads of state in South Africa in light of the Grace Mugabe decision
(Pretoria University Law Press (PULP), 2021) Dyani-Mhango, Ntombizozuko; ntombizozuko.dyani-mhango@up.ac. za
In the Grace Mugabe decision in which the conclusion was arrived at that Grace Mugabe was not entitled to spousal immunity by virtue of being the wife of the then incumbent foreign head of state, Vally J remarked that the late former President Mugabe would not have been entitled to immunity had he been accused of committing the assault. This article analyses this remark and its potential negative impact on South Africa’s relationship with other African states. The analysis is valuable as South Africa has positioned itself as being a human rights state that strives to play a significant role in peace making in Africa and consistently has argued that removing customary international law immunity, to which foreign heads of state are entitled, may undermine these intentions. The article examines South Africa’s position on personal immunity for foreign heads of state in customary international law against the backdrop of the Mugabe decision. It argues that as it currently stands South African law recognises absolute personal immunity for foreign heads of state in cases not relating to the perpetration of international crimes.
The powers of the South African public protector : a note on economic freedom fighters v speaker of the national assembly
(Brill Academic Publishers, 2021) Mhango, Mtendeweka; Dyani-Mhango, Ntombizozuko; ntombizozuko.dyani-mhango@up.ac.za
The scope of the powers of the Public Protector was one of the main questions for determination by the Constitutional Court in the landmark case of Economic Freedom Fighters vs Speaker of the National Assembly. This note critically examines that case, especially in relation to its finding that the remedial actions of the Public Protector have a binding effect. The note argues that the court erred by ignoring the text and history of the Constitution in its interpretations of the powers of the Public Protector. We argue that the Court got it wrong when it dismissed an argument that the powers of the Public Protector should be sourced from the Public Protector Act and not directly from the Constitution. In its critical analysis of Economic Freedom Fighters vs Speaker of the National Assembly, the note engages with two other related decisions from lower courts.
Tax legislation and the right to equality : does section 23(m) of the Income Tax Act 58 of 1962 rationally differentiate between salaried individuals and individuals who earn their income mainly from commission?
(Juta Law, 2020) Botha, Louis; Meyer, Zoe; Kok, J.A. (Anton)
The authors speculate how a court should deal with a tax matter that implicates the right to equality. Section 23(m) of the Income Tax Act 58 of 1962 squarely raises an equality dispute — in the context of rational/irrational differentiation, not fair/unfair discrimination. The aim of this article is to evaluate if section 23(m) rationally differentiates between salaried and nonsalaried individuals — if the differentiation created by section 23(m) is constitutionally permissible. First, the authors discuss the influence of the Constitution of the Republic of South Africa, 1996 on tax legislation with reference to selected cases where provisions in tax legislation came under constitutional scrutiny. Secondly, the operation of section 9 of the Constitution is explained. Thereafter, the authors interpret section 23(m) in considering whether the differentiation therein falls foul of section 9 of the Constitution. Having regard to those deductions which are not available to a salaried individual in terms of section 23(m) and to the number of individuals who are listed by SARS as salaried and nonsalaried individuals in SARS's statistics from 2015 to 2018, the conclusion is reached that the differentiation between salaried and nonsalaried individuals appears to be rational as it might lead to a significant increase in the administrative burden of SARS and of the salaried individuals in question.
Reflections on prosecutorial independence and impartiality in South Africa : the recent jurisprudence of the courts
(Unisa Press, 2020-07) Dyani-Mhango, Ntombizozuko; ntombizozuko.dyani-mhango@up.ac.za
Prosecutorial independence and prosecutorial impartiality are important for the effective administration of criminal justice in South Africa. These two concepts are interconnected and yet they are distinct, and distinguishable from judicial independence and judicial impartiality. In the past decade or so, controversy has surrounded and allegations have been made of political interference with prosecutorial independence and impartiality in South Africa. This article reflects on recent developments in the exercise of prosecutorial independence and impartiality in South Africa. The interest was sparked by recent constitutional jurisprudence in developing the law on prosecutorial independence and impartiality. In its analysis of the courts' jurisprudence on prosecutorial independence, the article further demonstrates that this jurisprudence has had an influence in determining the independence of other institutions responsible for the administration of criminal justice.
Surveillance capitalism as white world-making
(University of the Free State, 2021-07) Jooste, Yvonne; yvonne.jooste@up.ac.za
The era of ‘surveillance capitalism’ as a new logic of accumulation that claims human experience as free raw material necessitates an understanding of how corporate-controlled digital communication technologies govern and structure how we come to know the world. This article investigates surveillance capitalist operations and argues that it enables (1) algorithmic colonisation, (2) oppressive digital practices that reify bias along racial lines, and (3) the turning of bodies into objects in the creation and maintenance of whiteness. Through presenting these different arguments, a larger point emerges, namely, that surveillance capitalist operations must be understood as intimately tied to the project of white world-making.

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