Mia Swart

Left out in the cold? Crafting constitutional remedies for the poorest of the poor

Abstract It is clear that the superior courts in South Africa have wide powers to fashion remedies. The socio-economic rights debate should now shift from the justiciability of the rights to crafting appropriate remedies for their infringement. There is reason to be critical of the relief granted in the Constitutional Court’s socio-economic jurisprudence. Litigants in cases such as Grootboom and Treatment Action Campaign have not received the shelter or drugs awarded in the judgments. To remedy this, the Constitutional Court should be concerned with remedies that assist in realising socio-economic rights and therefore primarily with affirmative remedies including declarations, damages, reading-in, mandatory interdicts and structural interdicts. Of these, constitutional damages and structural interdicts are particularly suitable as remedies that would increase government accountability. High Court judges are becoming increasingly adventurous in their choice of remedy and the Constitutional Court should follow suit. There is a positive new tendency on the part of the courts to move from ordering the friendly ‘soft’ remedy of a declarator to the unfriendlier ‘hard’ remedy of a structural interdict. An additional possibility, raised in the Eastern Cape High Court decision of Kate v MEC for Welfare, is to hold government officials in contempt of court for failing to obey court orders.

Sorry seems to be the hardest word : apology as a form of symbolic reparation

Abstract Almost none of the leaders of the apartheid government apologised during the TRC process. This article argues that it is not too late for these leaders to apologise, and that one should be open to the transcendent value of apologies. Although apology does not fit easily into our individualistic, adversarial legal culture, it does fit into the paradigm of restorative justice. As a form of symbolic reparation, apology can be part of a package of restorative measures. Symbolic reparations (such as apology) have been ordered by courts both in South Africa and internationally. Because of the essentially performative nature of apologies, even incomplete or insincere apologies have restorative value. Incomplete apologies can have value if the apologist exhibits shame or if the apology involves public humiliation. The foot washing gesture of Adriaan Vlok is an example of an incomplete apology with restorative results.

Introduction: considering the aftermath of Marikana

The tragic incidents at the Lonmin platinum mine between August 11 and 16, 2012 in which 44 miners were killed, more than 70 injured and approximately 250 people arrested, remains a scar in the tissue of post-democratic South Africa. The massacre, described as the worst since the Sharpeville massacre of March 21, 1960, was indicative of underlying crises in government and the fabric of society. In terms of the brutality of the shootings, the Marikana massacre was indeed no different from apartheid-era state-sponsored violence. It was also a turning point in South African history. The fact that the police appointed by the liberation party were opening fire on the people they vowed to protect and liberate sent shock waves throughout the world. Fundamentally, the massacre represented a break between the old and the new in terms of the nature of labour relations in South Africa and the nature of the relationship between the government and the governed. Starker even, it exposed the depth of the division between those in power and the powerless, those with means and the poorest. It represented a moment when the much-celebrated achievements of South Africa’s transition to democracy gave way to expose the cancer slowly eating at the body and soul of South Africa. It placed the spotlight on the lingering lack of social justice. Some believe that Marikana also represents a transition from old to new politics in that it created an opportunity for a new left, a new socialist politics to emerge to challenge the ruling ANC. The economic impact of Marikana and the subsequent mining unrest has largely caused the South African Rand to lose 30% of its value in the past two years. The Marikana massacre has been the subject of intense study and debate in South Africa and abroad. The massacre triggered a substantial number of academic conferences and events across a variety of disciplines. The current volume is the result of the seminar hosted on the first year anniversary of the massacre on August 16, 2013 hosted by the Department of Journalism, Film and Television in cooperation with the Department of Public Law at the University of Johannesburg. In recognition that the Marikana massacre was a symptom of larger issues facing South Africa, this seminar has now been instituted as a yearly seminar at the University of

Judicial Independence at the Regional and Sub-Regional African Courts

Qualified and independent judges are essential for the legitimacy of the Courts. African regional courts will only contribute to the rule of law if the courts are legitimately composed. The purpose of this article is to consider whether judicial independence at the African regional and sub-regional courts has contributed to setting standards for the rule of law in Africa. The focus will be on the African Court of Human and Peoples Rights as well as the courts of the most prominent sub-regional communities. Because of the influence of the African Commission the composition of this body will also be considered.

Politics gone cancerous: why the Marikana massacre should be prosecuted as an international crime

What makes the Marikana massacre particularly chilling and poignant is the fact that the use of lethal force on a mass scale was sanctioned by South Africa’s democratically elected government. It also makes the massacre relevant to international law. It will be established in this article that the killing of 34 striking miners by the South African police is a crime that transcends the limits and boundaries of domestic justice. This article will explore an approach to the legal aftermath of Marikana that has not yet received academic attention: the question of whether the Marikana massacre should be prosecuted as an international crime. The article will further consider the factors that will have to be taken into account in classifying the massacre as an international crime. It will be argued that even though instinctively a crime of this scale might seem to reach the gravity of an international crime, the application of the strict legal requirements for international crimes, the policy requirement in the definition of a crime against humanity, the doctrine of complementarity as well as the gravity threshold applied by the International Criminal Court render it complicated but not unlikely that the massacre will be considered an international crime in the sense of meeting the jurisdictional requirements set out for such crimes.

The warning voice from Heidelberg : Radbruch, Dugard and the prosecution of state injustice

Abstract This article explores the relationship between John Dugard and Gustav Radbruch. Drawing on the legal philosophy of Gustav Radbruch and John Dugard’s work on international criminal law the article addresses the complex question of whether retroactive punishment is legally and morally justifiable. The article discusses Dugard’s views on the question of retroactivity in three contexts: firstly, in his opinion on the legality of extraterritorial prosecution of torture in the Bouterse case; secondly, through his criticism of the Constitutional Court’s decision in Azapo; and thirdly, by his support for ius cogens norms as expressed in his separate opinion in the Congo v Rwanda decision. The article concludes that Dugard’s support for retroactive punishment in the specific context of serious international crimes is another example of his lifelong dedication to ‘higher law’ and his faith in the normative evolution of international law.

Ad hoc rules for ad hoc tribunals? The rule-making power of the judges of the ICTY and ICTR

ABSTRACT In terms of the Statutes of the ad hoc International Criminal Tribunals for Rwanda and Yugoslavia, the judges of the Tribunals are empowered to adopt and amend the Rules of Procedure and Evidence of the Tribunals. This article argues that this power infringes upon the principle of legality and threatens the independence of the judges. It is submitted that the power to amend rules, unaccompanied by review mechanisms or sufficient safeguards, exceeds the power the judges should legitimately have been granted. Legal certainty requires rules to be fixed, knowable and certain. An accused should be in a position to prepare a defence with knowledge of the rules that will be applied by the court. It is argued that the practice of frequent amendments at the Tribunals threatens legal certainty and shows little respect for the rights of the accused.