David Bilchitz

Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socio-Economic Rights Jurisprudence

Abstract The Constitutional Court has in a series of cases begun to develop its approach to adjudicating claims based on socio-economic rights. This article focuses on the Court’s recent decision in Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) and considers three main issues. First, it is argued that there is a need to supplement the Court’s approach based on reasonableness with an analysis of the obligations imposed upon the government by socio-economic rights. Secondly, an analysis of the obligations placed upon the government by socio-economic rights should include what has been termed a minimum core obligation to realise without delay the most urgent survival interests protected by the right. Despite recent pronouncements by the Court, there is a way in which the minimum core approach can be rehabilitated. Finally, this article considers the Court’s claim that a minimum core approach attempts to force the government to do the impossible, and argues that the Court has misconstrued this approach. In so doing, the article considers important conceptual questions concerning the nature of socio-economic rights and the conditions under which they can be realised.

Moving beyond arbitrariness : the legal personhood and dignity of non-human animals

Abstract This article considers the legal personhood and dignity of non-human animals. It first argues that the concept of legal personhood can embrace all those who are capable of having rights or duties. Since the concept includes those who are rights-bearers, without necessarily being duty-bearers, it is necessary to investigate whether it is possible for animals to be rights-bearers within our law. It is argued that the traditional classification of animals as legal objects has already been challenged by the enactment of animal welfare legislation. Certain traditional justifications for such legislation cannot withstand scrutiny and it is shown that such legislation rests upon the recognition that animals have important interests in their own lives and so require legal protections in their own right. This provides the basis for recognising that they have certain rights within the law, and consequently, if we take the argument to its logical conclusion that they are natural persons rather than things. This conclusion can be reached through courts simply drawing out the implications of the existing legal regime in relation to animals. An alternative basis for restricting the category of legal personhood only to those who are members of the human species is often rooted in the notion that human beings have a special ‘worth’ or ‘dignity’ not possessed by other animals. The dignity claim is shown to be capable of two different interpretations: one that asserts the special value of human beings as a category and the other that asserts the special value of certain complex characteristics – such as rational agency – largely found only within the human species. Both interpretations are shown to be flawed and, ultimately, provide no acceptable justification for recognising that only human beings are capable of having rights that must be respected. The notion of dignity, it is argued, can be developed to remove the arbitrary exclusion of non-human animals. The concept, as developed recently by Martha Nussbaum, embraces all those who have the capacity to flourish and can recognise the variable nature of the good for diverse beings. The adoption of the revised conception of dignity paves the way for the recognition of the legal personhood of animals. The final part of this article considers the possibilities for interpreting both the common law and constitutional provisions so as to recognise the dignity and personhood of animals. A key problem that is addressed is whether South African society is ready to embrace the full implications of this recognition. The legal concept of ‘progressive realisation’ of animal rights is proposed as offering the possibility of ensuring greater protections for animals through recognising their dignity and personhood whilst embracing a gradualist approach towards the full realisation of their rights, thus preventing a wholesale disjunction between the law and the attitudes of wider South African society.

Should religious associations be allowed to discriminate

Abstract Should religious associations be allowed to engage in acts of unfair discrimination on grounds prohibited in the Constitution where they claim their religious doctrines require it? This article argues for this question, in general, to be answered in the negative and seeks in the process to explore the tension between advancing equality in South African society whilst recognising the autonomy of private associations. The Strydom case – dealing with the dismissal of a gay music teacher from a church on grounds of his sexual orientation – provides the backdrop for an analysis of these issues. The article critiques the work of two authors – Patrick Lenta and Stu Woolman – who argue that greater emphasis should be placed on freedom of association in these circumstances even where such associations promote values that are in direct contradiction to those contained in the Constitution. For Lenta, the core concern relates to ‘protecting diversity’ whilst, for Woolman, it involves ensuring a society with a high quantity of ‘social capital’. I shall argue that both authors pay insufficient attention to the South African context, which provides a strong case for a presumption in favour of equality and non-discrimination. Moreover, an engagement with the history of religion in South Africa provides strong reasons to avoid simply leaving a private religious domain alone that is at odds with the political morality of the state. I shall also seek to show that the very values that both Lenta and Woolman are concerned with do not unequivocally support their conclusions and in fact provide a case for the contrary point of view. The arguments I provide seek to establish that courts should generally refuse to condone discrimination on prohibited grounds even where this occurs on the basis of religious doctrines. Ultimately, the article argues for South Africa to adopt an egalitarian form of liberalism that recognises limits on the freedom of religious associations to discriminate as this is necessary to ensure respect for the equal dignity of all individuals in the polity.

Why courts should not sanction unfair discrimination in the private sphere : a reply

Abstract This article addresses the question as to whether religious associations should be granted an exemption from legal anti-discrimination provisions relating to their employment practices. It focuses on responding to criticisms mainly by Patrick Lenta of my position that, in general, no such exemptions should be granted. The key issues I address are the following. Firstly, I shall consider the relationship between South Africa’s particular context and the approach to be adopted towards interpreting and balancing fundamental rights in South African constitutional law. Secondly, I shall contend that religious associations do violate liberal reciprocity when seeking such an exemption and respond to Lenta’s argument in this regard. Thirdly, I shall consider the harms of discrimination by religious communities upon the equal citizenship of vulnerable groups and distinguish these from the distress caused by refusing members of religious associations exemptions from anti-discrimination legislation. Finally, I shall discuss the question of remedies and the possibilities they allow for encouraging religious associations to act in ways that are consonant with South Africa’s constitutional democracy.

What was left unsaid : the unconstitutionality of the Performing Animals Protection Act in NSPCA v Minister of Agriculture, Forestry and Fisheries

It is rare for cases concerning animal welfare legislation to reach the Constitutional Court. The case of NSPCA v Minister of Agriculture, Forestry and Fisheries is therefore notable in that the constitutionality of sections of the Performing Animals Protection Act 24 of 1935 (PAPA) was placed under scrutiny. Even more importantly, two sections of the Act, which could be regarded as its heart and soul were declared unconstitutional. The Constitutional Court has effectively now placed the government on terms to require a revision of, at least, this piece of legislation.

Human Rights Obligations of Business: The human rights obligations of business: a critical framework for the future

In the last decade or so, significant developments have taken place at the international level in articulating the human rights responsibilities of business and devising a regulatory framework which can provide effective remedies to victims of corporate human rights violations. One development that stands out is the work done by Professor John Ruggie, who was appointed in July 2005 as the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (SRSG). After submitting two reports to the United Nations Human Rights Council (HRC), in 2006 and 2007, the SRSG proposed the ‘Protect, Respect and Remedy’ Framework (Framework) in the 2008 report to provide ‘a common conceptual and policy framework, a foundation on which thinking and action can build’. After the Framework was accepted by the HRC and his mandate renewed for another three years, the SRSG focused upon ‘operationalising’ the Framework. This work culminated in the Guiding Principles on Business and Human Rights (GPs), which were submitted to the HRC in March 2011 and endorsed on 16 June 2011.

Religion and the public sphere : towards a model that positively recognises diversity

Abstract What model of the relationship between religion and state is optimal for South Africa? In order to identify the possibilities that exist, this article engages in a critical evaluation of the differing models of the state-religion relationship that have been adopted internationally. Part I seeks to identify, from a philosophical perspective, the advantages and disadvantages of particular models. Part II then focuses more closely on the particular historical and social context of South Africa as well as the most important constitutional provisions and case law. We shall argue in this section for what we term a ‘positive recognition’ model of the relationship between religion and state in South Africa, which emerges from the values underlying the Constitution. The model is not predicated on a strict, inflexible separation between the public and private realms. It requires the state to recognise the significance of religious identities to individuals and to take active measures to enable individuals to realise those identities. Importantly, it must do so in a manner that treats differing religious (and other philosophical) conceptions of the good equally. The last part of the article seeks to illustrate the implications of this model in practice in relation to two important practical questions where the state-religion relationship is implicated: public holidays of a religious character and the presence of religion at state ceremonies.

The evolution of the separation of powers in the global south and global north

The separation of powers has been a central tenet of constitutional design since the French Revolution and the design of the United States Constitution. Perhaps its most prominent defense has been that preventing the concentration of power in any one political institution would help to guard against the abuse of power. Indeed, this idea is one which has a long pedigree and analogues in many parts of the world. While there was no developed doctrine of the separation of powers in pre-colonial African societies with much power concentrated in the hands of traditional leaders, such leaders were nevertheless required to consult with and seek the approval of advisory councils or popular assemblies (on matters of particular importance): this created opportunities by members of the community to check the power of the leader.1 Some of the theoretical foundations for the later development of the separation of powers doctrine in constitutional law were laid by Aristotle in Ancient Greece who recognized the desirability of a threefold division of power between a deliberative dimension, an executive dimension (he referred to this as the magistracy) and a judicial one.2 Whereas Aristotle focused on what would be an excellent form of government for the community, modern notions of the separation of powers developed during the Renaissance period, where the emphasis was placed firmly on how to ensure that power was not abused in a manner that severely circumscribed the liberty of individuals. Such ideas were initially put forward by John Locke3 and developed by Montesquieu, who argued for the necessity of distinguishing between a legislature (which made laws),

Animal Interests and South African Law: The Elephant in the Room?

Since the inception of constitutional democracy in South Africa in 1994, legislators, policy-makers and courts alike have tended to avoid expressly recognising the interests of animals in law. This chapter will seek to consider this trend in two significant areas – namely, the protection of animals against cruelty and the regulation of wildlife – in which there have been engagements in post-apartheid South Africa between the law and animal interests. Other than complete avoidance, where animal interests are considered, the discourse of courts and legislative bodies avoids the ethical implications of such a recognition and focuses on “objective” scientific matters. I shall contend that this “avoidance” of animal interests and ethics may often be successful in enhancing protections for animals and can be justified, at times, in this light. Yet, if the interests of animals continue to be routinely ignored, legal actors contribute towards the blindness of human beings to their value and thus limit what can be achieved in advocating for better protections. Thus, litigation and advocacy strategies need to develop a manner of ensuring that animal interests are expressly placed on the table and inviting courts (and other actors) to make pronouncements that can alter the status and seriousness with which they are treated. Such an approach, moreover, will be consistent with the ideas that shaped the liberation struggle and new constitutional order in South Africa and recognise that compassion, humanity and a refusal to sanction injustice must not arbitrarily be confined to the human species but extend to other animals too.

Introduction : political rights since 1994

South Africa marked 20 years of constitutional democracy when it went to the polls in May 2014. Voting is a particularly significant and moving occasion in South Africa: individuals waiting in the queues to cast their ballots are acutely aware of how the majority were excluded from the franchise; and, definitively, embrace a form of civic equality where every individuals voice counts. Given this history, the five successful free and fair national elections, held in South Africa since 1994, are a significant achievement. Yet, increasingly, they are seen not to be enough to guarantee a vibrant democracy. Individuals wish to participate in decisions that affect their lives more frequently than once every five years. The political system itself is often seen to create too much distance between the electorate and their representatives and there has been the domination of the political sphere by one party since 1994. The funding of political parties is once again in the spotlight as is the democracy within political parties themselves.