Pierre De Vos

'Grootboom', the right of access to housing and substantive equality as contextual fairness

ABSTRACT This article explores the relationship between social and economic rights and the right to equality through an analysis of the decision in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC). Arguing that the transformative vision of the 1996 South African Constitution is one that is committed to remedying social and economic inequality, the article explores how the right of access to housing and the right to equality are interrelated and mutually supportive in pursuit of this goal.

Same-sex sexual desire and the re-imagining of the South African family : focus on sex and secrecy

Abstract Many individuals who form same-sex intimate relationships argue that the social and legal protection associated with heterosexual marriage should be extended to their relationships. This is understandable because marriage in South Africa remains the focal point for the protection and regulation of the interests of individuals who engage in intimate relationships of any kind. However, merely extending marriage rights to same-sex couples whose relationships mirror the idealised heterosexual norm will be problematic. Because of homophobia and prejudice many individuals in same-sex intimate relationships will not be able to freely ‘choose’ to get married. Others will form intimate relationships that will not be recognised because they will be insufficiently similar to the traditional heterosexual notion of marriage. Those who do not marry will therefore once again be marginalised and the law will once again fail to protect the weaker and more vulnerable partners in such relationships. The early case law of the Constitutional Court recognised that the right to substantive equality entails a right to equal concern and respect across difference and thus hinted that not only marriage-like intimate same-sex relationships, but also non-traditional forms of suchrelationsh ips should be constitutionally protected and respected. However, later judgments seem to suggest that intimate relationships that stray too far from the model of traditional heterosexual marriage, are less worthy of respect and protection. This narrow conception of what constitutes worthy intimate relationships is deeply problematic, not only for individuals in non traditional same-sex relationships but also for the millions of individuals in different-sex relationships who are not married, because it marginalises them and fails to extend legal protection to some of the most vulnerable members of society. The legal regulation of intimate relationships should therefore completely move away from the marriage model and should instead be based on a functional model which takes account of the unequal power relations in intimate relationships.

The 'inevitability' of same-sex marriage in South Africa's post-Apartheid state

Abstract This article argues that the adoption of the Civil Union Act, extending marriage rights to same-sex couples, does not represent the inevitable and triumphant victory of a long legal and political struggle for the emancipation of gay men and lesbians in South Africa. A combination of luck, wise strategic leadership and fortitude eventually led to the adoption of full marriage rights for same-sex couples. The article traces the roots of this legal and political victory back to the debates about the inclusion of the sexual orientation clause in the South African Constitution and points to the importance of the distinct (conservative) legal strategy employed by the National Coalition for Gay and Lesbian Equality in achieving full partnership rights for all. The initial jurisprudence developed by the Constitutional Court created the basis for later legal victories and brought along judges who might have had some misgivings about the extension of marriage rights to same-sex couples had the issue arisen earlier on. The Constitutional Court’s judgment in Fourie left very little room for Parliament to manoeuvre because it emphasised the symbolic value of marriage and confirmed that a ‘separate but equal’ partnership law for same-sex couples would not pass constitutional muster. However, this important legal victory will not have any direct and immediate bearing on the lives of many gay men and lesbians in South Africa as they face social, cultural and economic hardship in ways that cannot be easily addressed through the legal reform of partnership laws. The improvement of the lives of ordinary gay men and lesbians will go hand in hand with changes in societal attitudes towards minority sexualities, which to a large extent will be dependent on grassroots activism and organisation. Because the battle for full marriage rights was a well directed, elite-based legal battle, it failed to build a sustainable, vibrant, grassroots movement to take on this task but the symbolic space created by the same-sex marriage reform may well begin to allow for the fostering of such a movement and thus for true emancipation of gay men and lesbians.

A bridge too far? History as context in the interpretation of the South African Constitution

ABSTRACT Judges and other interpreters of the South African Constitution are faced with the dilemma of how to achieve a semblance of objectivity in constitutional adjudication given the open-ended and often vague nature of the provisions with which they are faced. In an attempt to solve this dilemma, the judges of the Constitutional Court often turn to South Africas history and use it as a ‘grand narrative’ — a universally accepted, meaning-giving story about the origins and purpose of the Constitution. This ‘grand narrative’ or ‘super context’ purports to limit the discretion of judges by providing the context within which the various provisions of the Constitution can be understood without recourse to the personal, political or philosophical views of judges. This attempt to deploy South Africas recent history cannot be successful, however, because it ignores the emerging view of history as a profoundly subjective account of selected events in the past. History is just as much about the present as the past, and it reflects choices about who and what must be included and who and what excluded. The use of a ‘grand narrative’ of history in constitutional interpretation is therefore highly problematic: it presents these choices as inevitable, thereby potentially precluding different, more inclusive, understandings of the Constitution. This does not mean that South African judges should not deploy history when they are called upon to interpret the Constitution. If history is deployed not as ‘grand narrative’ but with an acknowledgement of its open-ended nature, it might assist in establishing the Constitution as a living document, a document that will adapt to changing circumstances in South African society.ABSTRACTJudges and other interpreters of the South African Constitution are faced with the dilemma of how to achieve a semblance of objectivity in constitutional adjudication given the open-ended a...

Rejecting the free marketplace of ideas: a value-based conception of the limits of free speech

Abstract The robust protection of freedom of expression is not well-served by the assumption that the regulation of free expression may never take into account the content of the expression being regulated. The assumption fails to acknowledge that some forms of expression are far more valuable and in need of protection in a democracy than others. It also fails to acknowledge that some forms of expression threaten democracy and the dignity of those who live in it. The idea of a content neutral approach to the protection of freedom of expression should, therefore, be rejected as it is not useful for the effective protection of freedom of expression in a democracy that respects human dignity and diversity. To the extent that free expression is believed to operate in a free marketplace of ideas, it furthermore fails to identify (and may even mask) some of the most pressing threats posed to a thriving free expression culture. Instead, turning to the South African Bill of Rights – with its general limitation clause – will provide for a far more nuanced and effective approach to the possible limitation of free expression, provided that certain important safeguards are put in place. The article therefore argues that we should reject the metaphor of the free marketplace of ideas and should, instead, turn to the idea that freedom of expression’s protection depends to some extent at least on whether it advances, protects or reflects the values that form part of the ‘objective normative value system’ embodied in the South African Constitution. The article concludes by arguing that the problems raised by the metaphor of free marketplace of ideas can at least partly be addressed by reimagining freedom of expression as a right that places not only negative obligations on the state to refrain from interfering with the right of individuals to receive and impart information and ideas, but also as a right that places positive obligations on the state to take steps progressively to extend the ability of individuals to receive and impart ideas and to access a more diverse array of information and ideas.AbstractThe robust protection of freedom of expression is not well-served by the assumption that the regulation of free expression may never take into account the content of the expression being re...

It's my party (and I'll do what I want to)? : internal party democracy and section 19 of the South African Constitution : political rights since 1994 focus

Abstract South Africa’s democracy has both representative and participatory elements. The participatory aspect of democracy enhances the civic dignity of citizens by empowering them to take part in decisions that affect their lives. However, the overbearing role that political parties play in the South African democracy runs the risk of limiting the ability of citizens to participate effectively in decisions that impact on their lives. This is because the leaders of political parties (especially of governing parties) may wield enormous power and influence inside their respective parties and in the legislature and executive. Where the ordinary members of parties have little or no direct say about the formulation of the policies of the party they belong to or the election of its leaders or those who will stand for election as public representatives at national and provincial level, the ability of such members to participate in democratic processes and decisions are limited. To facilitate the participation of party members in the activities of a political party to ensure the enhancement of their civic dignity s 19(1)(b) of the Constitution guarantees the right of every citizen freely to make political choices, including the right to participate in the activities of, or recruit members for, a political party. In Ramakatsa v Magashule the majority of the Constitutional Court affirmed the importance of the right of party members to participate freely in the activities of the political party they belong to and also found that the constitutions of political parties have to ensure this happens. Provisions of a political party’s constitution can be declared invalid if it fails to comply with the provisions of the Bill of Rights (including s 19(1) (b)). This article contends that Ramakatsa can be interpreted to place a positive duty on the legislature to pass a ‘party law’ that sets minimum requirements to protect the democratic participation of party members in the activities of the party – including about the formulation of party policies, the election of party office bearers and the selection of the party’s candidates for election as public representatives.

The South African Police Service Amendment Bill: Possible Compliance with Glenister v President of the Republic of South Africa

In a groundbreaking judgment of Glenister v President of the Republic of South Africa, South Africas Constitutional Court found that the abolition of the Scorpions, a special corruption fighting unit, and its replacement with the Hawks, a far less independent body, was unconstitutional as the new body lacked the requisite independence to protect it from political influence and interference. The South African Parliament was given the opportunity to rectify this problem. This submission - made to Parliament - argues that the draft legislation purporting to give effect to the Glenister judgment fell short of the requirements set in that judgment.