OpenUCT :: Browsing by Author "De Vos, Pierre"

Browsing by Author "De Vos, Pierre"

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The application and reconstruction of international law by domestic courts : an analytical framework for the judicial mediation of a cosmopolitan and emancipatory international law
(2013) Lewis, Lizani; Bennett, Thomas; Corder, Hugh; De Vos, Pierre
The end-goal of this study is to promote a bottom up reconstruction of international law. This implies, first, that reconstruction is necessary, and, second, that such reconstruction has substantive merit. As humanity heads into the future in 'Lifeboat Earth', a number of global storms are brewing, ranging from catastrophic environmental degradation to an economic meltdown and political instability, accompanied by grave human suffering – all of which can be addressed only through ecumenical cooperation at a global level. This, in turn, presupposes a global system of regulation. Thus far, the only regime available has been international law. Hence, it is imperative that it is (or becomes) justifiable, persuasive and relevant for all its participants and recipients. The study construes this to mean that international law must be cosmopolitan, that is, globally relevant and counter-hegemonic, and thereby emancipatory, which signifies a normative order wherein human potential can flourish.
Open Access
Attaining Justice through ‘Just and Equitable Compensation': A critique of South African courts' current approach to section 25(3) of The Constitution, and determining whether ‘Expropriation without Compensation' may be considered ‘Just and Equitable'
(2020) Arend, Ayesha; De Vos, Pierre
The land debate regarding just and equitable compensation and the potential 'expropriation without compensation' amendment to section 25 of the Constitution of the Republic of South Africa1 has been a contentious issue in South Africa over the past year. Owing to colonialism and the apartheid regime, secured land rights and control were reserved for the white minority. This resulted in the mass dispossession of land that was owned and/or controlled by black, coloured and Asian people. In light of our country's deplorable history of land dispossession, section 25(1) of the Constitution was included to command that no person be deprived of property except in terms of law of general application. In addition, in accordance with section 25(2), property may be expropriated only in terms of law of general application for a public purpose and subject to compensation. However, despite the inclusion of these transformative provisions, 25 years into our constitutional democracy, a large portion of previously disadvantaged individuals remain disadvantaged owing to socio-economic oppression, their inability to secure land rights and the country's slow-moving land reform process. This dissertation is based on the notion that transformation in the area of land reform has been conducted at a glacial pace, owing to South African courts' market value-centred approach to determining just and equitable compensation amounts that are to be awarded in expropriation cases. By analysing sections 25(2), 25(3) and 25(8) of the Constitution, the courts' constitutional jurisprudence and academic literature, this dissertation aims to investigate whether it is necessary for the courts to re-evaluate the approaches taken during the initial stages of land reform; considering the need for a speedier land reform process. Upon considering the current composition of section 25(3), I contend that if the courts alter their approach to legal interpretation by placing more weight on a purposive approach when interpreting this section's requirement of 'just and equitable compensation', the results of expropriation cases will give effect to the transformative values that underpin section 25 - hence the Constitution need not be amended to allow for expropriation without compensation in order to give effect to land reform as envisioned in section 25(8). This increased purposive approach to interpretation will encourage the courts to adopt an inclusive interpretation of 'just and equitable compensation' which allows for the expropriation of land with compensation, without compensation and with partial compensation.
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The burgeoning constitutional requirement of rationality and separation of powers has rationality review gone too far?
(2013) Kohn, Lauren Manon; Corder, Hugh; De Vos, Pierre
This thesis presents an analysis of three recent judgments of our apex courts which collectively illustrate a maximising of the 'minimum threshold requirement' of rationality through the seemingly inexhaustible constitutional principle of legality. The question sought to be addressed is whether, in extending this baseline requirement to cover procedural fairness, reason-giving and something akin to proportionality, in the context of non-administrative action and in the absence of any meaningful engagement with the doctrine of separation of powers, the courts are going too far.
Open Access
Compassion and Corruption
(Indiana University Press on behalf of the W.E.B. Du Bois Institute, 2014-11-18) De Vos, Pierre
Reflections on the life of Nelson Mandela for a special issue of Transition this article asks whether the example of Nelson Mandela’s extraordinary ability to show understanding, compassion, and forgiveness - even to those who might have done wrong - can teach us anything about being both principled and compassionate. Is it possible to be both? Can one insist on the importance of integrity, but show understanding for others who have strayed?
Open Access
Consent to minor customary marriages perpetuates abuse towards african girls and women in south africa
(2024) Mkandhla, Samantha; De Vos, Pierre
That in terms of South African law, a minor under the age of 18 years, may enter into a valid and legally binding civil or customary marriage if they obtain consent from their parent or guardian, but only if said marriage is found to be “in the best interests of the child”. That, furthermore, this legally permissible minimum age of marriage differs for boys and girls, where the marriageable age of a minor girl has been reduced to 15 years old, while a boy remains at 18 years old. That, while significant in the overall considerations of discrimination, this research did not examine this age difference in detail. That parental consent to minors' marriages applies to minor civil and customary marriages, regulated by the Marriage Act1 and Recognition of Customary Marriages Act2 respectively. That this consent provision also applies to customary marriages is made clear by sections 3(1)(a) and (b) of the latter Act. That this dissertation hypothesises that the provisions that allow a parent or guardian to consent to a marriage entered into by their child, under the respective marriageable ages of 15 and 18 years, have a disproportionately negative impact on black African minor brides who obtain such consent for a customary marriage specifically. That this parental consent usurps section 12(2)(a) of the Children's Act 38 of 2005 of South Africa, which says that a child below the minimum age set by law may not be given out in engagement or marriage. That section 12(2)(b)3 explicitly requires consent to be given out in marriage from a child spouse above the minimum age set for marriage, which is thus between the ages of 15 and 18 years for minor girls, and above 18 years for both minor boys and girls. That this section is important and provides irrefutable legal protection to girl children engaged and/or married between ages 15 and 18 years de jure, but not de facto, especially not for minor girl brides within the context of an African customary marriage. That, additionally, being that this section, enacts the requirement of consent to marry from minors above the minimum age set for marriage, it falls outside the scope of this research in relation to the boy spouse, whose minimum age of marriage remains set at 18 years, because the argument is that marriage below the age of 18 years should not be permissible, with or without the consent of the minor in question. 1 Marriage Act 25 of 1961. 2 Recognition of Customary Marriages Act 120 of 1998. 3 Children's Act 38 of 2005. That this research further demonstrates that in practice, the legislation that empowers a parent or guardian to consent to their minor child's customary marriage simply legalises a child marriage, which is in contravention of South Africa's international law obligations and conflicts with other domestic legislation that made 18 years the minimum permissible age of marriage, for girls and boys. That international and regional instruments include the International Convention on the Rights of the Child, the African Children's Charter, the African Women's Protocol, and the SADC Gender Protocol. That these all seek to advance the rights of children, while judiciously balancing the recognition of other rights such as culture and religion and eliminating harmful practices related to those. That the argument in this dissertation is that while enabling a parent or guardian to consent to the marriage of a child under the minimum age to marry as set by law, could be justified in some contexts, or be interpreted as a measure introduced to protect minors, the customary law setting, debatably renders African girl children particularly vulnerable to the harms associated with child marriage and/ or the interrelated traditional practices, such as ukuthwala. That this dissertation examines the patriarchal foundation of customary law and marriage, questioning whether the parental consent provisions that apply to the customary marriages of girl children, unfairly discriminate against African girls on the grounds of sex and race. That the conclusion reached is that the parental consent provisions do constitute indirect unfair discrimination in terms of section 9(3) of the Constitution of the Republic of South Africa, 1996, on the grounds of race and gender, and that the limitation of the right is not justifiable in terms of its section 36 limitation clause. That the marriage regime researched is limited to heterosexual marriage.
Open Access
Decriminalization of cannabis - high time to revisit Prince
(2016) Kowalski, Kelly Maxine; De Vos, Pierre
Open Access
An examination of the relationship between public participation in constitution making processes and the objective to write a democratic constitution : the case of Zimbabwe's 2010-13 constitution making exercise
(2014) Mavedzenge, Justice Alfred; De Vos, Pierre
In recent years, many States particularly within the SADC and East Africa region have embarked on constitution making exercises as part of the democratization process. There is a strong emphasis that such constitution making processes must be based on public participation. An assumption is often made that public participation in constitution making processes will lead to the creation of a legitimate and democratic constitution. With reference to the Zimbabwe 2013 constitution making process, this dissertation argues that whilst public participation in constitution making will surely enhance the legitimacy of the final constitution, it does not necessarily result in the writing of a democratic constitution. There are contextual and conceptual challenges that constrain public participation from resulting in the creation of a democratic constitution. Using the Zimbabwe 2013 constitution making process and the resultant final constitution as a case study, this dissertation identifies and examines these contextual challenges and they include the legal context prevailing at the time of the constitution making process, political culture of the society and its leadership, manipulation of public views by the dominant forces as well as constitutional illiteracy. The conceptual challenges relate to the shortcomings of the theoretical foundations of public participation in constitution making. Such theoretical foundations include the doctrine of popular sovereignty and the doctrine of nation building and national reconciliation.
Open Access
The infringement of prisoners' right to vote : an analysis of intentions and general principles in due consideration of recent judgements
(2012) Seitz, Florian; De Vos, Pierre
The right to vote is the most important and often even the only possibility of citizens to participate in a democracy’s governance. Generally accepted democratic principles like the electoral equality and the objective to include all citizens who have acquired their full age and are of sound mind in the decision-making process demand that disenfranchisement may - if at all - only occur in very exceptional cases. However, laws infringing prisoners’ right to vote are widespread and differ greatly among established democracies: While some states do not impose any restrictions on the right of prisoners to vote, others (like many states in the USA) exclude most or all of their detainees from taking part in elections, sometimes even after their release.1 Even though this phenomenon pertains to core issues of democratic principles as well as central human rights aspects, it has not been subject to noteworthy public debate for a long time. Due to several decisions of national constitutional courts and the European Court of Human Rights (ECtHR) within the last decade, felony disenfranchisement has gained more attention among legal academics. Still, most of this literature is limited to the specific arguments which have been brought forward in the particular court procedures. From my point of view, a holistic analysis which seeks to give a general recommendation whether or not to grant prisoners the right to vote – and if so, what restrictions may still be feasible – must not only focus on a national context, but has to consider legal philosophic and political issues, too. The long grinding debate which is going on in the British Parliament about the amendments demanded by Strasbourg’s European Court of Human Rights (ECtHR) emphasises the practical necessity of such a study.
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Is the right to education for children with disabilities in South Africa sufficiently protected, promoted and supported by the government?
(2019) Mycroft, Michaela; De Vos, Pierre
Disability in South Africa is a complex issue to understand and address. Society is structured in such a way that ableism persists, creating ongoing challenges for minority groups such as those living with a disability. In the light of the above, this dissertation examines the right to education for children with disabilities. This dissertation has a narrowed focus, through a desktop study investigating legislation and policies addressing and supporting the right to education in South Africa. If the right to education is effectively addressed, it could lead to improved access to equality, dignity and freedom for children with disabilities, as enshrined in the Constitution. Civil society organisations have become increasingly involved in supporting and promoting the right to education for children with disabilities, to ensure that children with disabilities can and do access their basic rights, when government fails to provide for equitable realisation of this right. I propose that the government has accepted responsibility to meet its obligation1 to provide equal education opportunities for children with disabilities in South Africa through signing international and regional treaties but is ineffective in doing so. However, the pervasiveness of ableism is a major barrier to implement this obligation. As a result institutions such as civil society have been ‘required’ to fill the gap to avoid further marginalisation of children with disabilities and violation of their human rights.
Open Access
‘The past is unpredictable’: South African history and the understanding of the constitution
(2014-09-29) De Vos, Pierre
South Africa’s Constitution contains a list of rights protecting the interests of individuals. Formulated in an open-ended way, their scope and content are not always apparent. For example, section 9(3) prohibits ‘unfair discrimination’ on any ground, but when, for instance, would affirmative action based on race be fair and when not? When would it be fair to discriminate against people with disabilities, pensioners, men, or people who used to be classified ‘white’ during apartheid, and when not? Judges, who have their own personal views and beliefs, must determine the scope and content of the rights by interpreting them. For an interpretation to be credible, and not seen as based purely on political and personal beliefs, judges often rely on ‘objective’ criteria. This three lecture course will look at how the Constitutional Court relies on South Africa’s history as one such ‘objective’ criterion. Taking its title from a remark made by Evita Bezuidenhout that ‘the future is certain – it’s the past that is unpredictable’, the course will illustrate that the manner in which the court understands South Africa’s history partly determines how it interprets the scope and content of the right. The right to equality and the question of affirmative action will be the points of departure, to assist understanding how South Africa’s particular history influences the court’s understanding of various human rights. LECTURE TITLES 1. History and the interpretation of the Bill of Rights 2. History and non-discrimination: race, gender and sexual orientation 3. On affirmative action Recommended reading De Vos, P. 2012. The past is unpredictable: race, redress and remembrance in the South African Constitution. South African Law Journal, 129, 73–103. (Read Prof de Vos's inaugural lecture of the same title here: http://www.uct.ac.za/downloads/uct.ac.za/news/lectures/inaugurals/De_Vos...) De Vos, P. 2012. Why Historical Context Still Matters in South Africa. Available here: http://constitutionallyspeaking.co.za/why-historical-context-still-matte... Ngcukaitobi, T. 2013. Equality. In The Bill of Rights Handbook. 6th ed. I. Currie et al. Eds. Cape Town: Juta. 209–249. This lecture series was part of the 2014 UCT Summer School programme http://www.summerschool.uct.ac.za/ Image details: The judges' table in a courtroom of the Constitutional Court of South Africa at Constitution Hill, Braamfontein, Johannesburg. (2007). Available at: http://commons.wikimedia.org/wiki/File:ConstitutionalCourtofSouthAfrica-...
Open Access
The potential impact of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on the realisation of socio-economic rights in the international arena: what can be learnt from the justiciability of socio-economic rights in South Africa?
(2010) Galliker, Doris; De Vos, Pierre
The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (the 'Optional Protocol' or the 'OP-ICESCR') has recently been adopted by the General Assembly of the United Nations. This document establishes a new complaints procedure for economic, social and cultural rights ('ESCR') within the United Nations human rights system. Hence, those rights ' as it is already the case for civil and political rights (CPR) ' will become quasi-justiciable at international level. Once the Optional Protocol will enter into force, individuals and groups victims of violations of any right contained in the International Covenant on Economic, Social and Cultural Rights (the 'Covenant' or the 'ICESCR') will have the possibility to submit communications to the United Nations Committee on Economic, Social and Cultural Rights (the 'Committee' or the 'CESCR'), as long as the state concerned is party to the OP-ICESCR.
Open Access
Right of access to information and its limitation by national security in Nigeria: mutually inclusive or exclusive?
(2017) Salau, Aaron Olaniyi; De Vos, Pierre
Section 39(1) of the 1999 Constitution of Nigeria guarantees freedom of expression, including the right to receive and impart information. Also, the domestication of the African Charter on Human and Peoples' Rights' makes the Charter's protections for access to information part of Nigerian law. Indeed, sections 39(3) and 45(1) of the Constitution permit restrictions on access to information, but only by 'law that is reasonably justifiable in a democratic society'. Unfortunately, access to information in Nigeria is heavily circumscribed by statutes that confer absolute powers on the executive to classify information to protect vague 'national security' interests inconsistently with what is reasonably justifiable in a democratic society. Underlying this problem are a colonial legacy of administrative secrecy that disdains disclosure of official information and clumsy constitutional rights provisions that accentuate security restrictions rather than the right to information. Using democratic theory as an analytical tool, this thesis advocates for the right of access to information as not just a constitutional value, but also a minimum requirement for the functioning of a democratic society. In so doing, it aims to curtail abuse of executive powers under national security laws that permit limitations on access to information. The thesis uses African human rights standards of reasonableness to evaluate how national security laws that limit access to information measure against constitutional standards of reasonableness and justifiability in a democratic society. The thesis finds that constitutional protection and jurisprudential recognition of the right of access to information in Nigeria do not comply with minimum international law requirements. The thesis ultimately suggests that limitation of access to information on grounds of national security must be in the public interest. In striking a balance between access to information and national security, it recommends a sufficient legislative description of 'national security' and clear constitutional framework for access to information, subject to restrictions only where harm to national security is demonstrably greater than access to information.
Open Access
The role of municipalities in energy governance in South Africa
(2016) Mosdell, Susan Carolyn; De Vos, Pierre
It is commonly known and acknowledged in contemporary times that the burning of coal and other fossil fuels has caused environmental harm on a global scale, especially global warming caused by emissions of carbon dioxide and other gases. Nuclear energy does not cause emissions, but the risk of nuclear accidents is a deadly and serious one for communities close to nuclear power stations.8 Furthermore, humans have not yet found a completely safe method for disposal of nuclear waste.9 Florini and Sovacool write that global energy governance is currently on an unsustainable and conflict-prone path. There are issues of unreliable supply, brittle and vulnerable energy infrastructure, massive environmental degradation, and failure to deliver energy services.10 Udall goes so far as to say that 'energy is the original currency', and that mankind is at the beginning of a period of resource nationalism.11 Victor and Yueh endorse this view, saying that the decade between 2000 and 2010 has seen governments in all the large consumer nations of the world besieged by doubts about their energy security.12 The increasing demand for energy across the world has a number of consequences. Among these, the most challenging for governments is the association of energy generation with climate change, resulting from emission of greenhouse gases in the process of burning fossil-based fuels to generate electricity.13 Victor and Yueh describe the energy sector as one of the most exciting technological frontiers in the world, with many countries changing their expectation as to what the sector should deliver, due to climate change.14 Across the world, renewable energy sources are being recognised as the safest and most desirable energy sources, as they are largely free of emissions and are non-depletable.15 In South Africa the legislative framework explicitly promotes the development and use of renewable energy. In this dissertation it will be shown how municipalities in South Africa can play a valuable role in energy governance, which, it is posited, is a central element of their legislative responsibilities with regard to service delivery, upholding of the Bill of Rights, promoting a safe and healthy environment, promoting local economic development, and other issues.
Open Access
Same-sex marriage, civil unions and domestic partnerships in South Africa: critical reflections on an ongoing saga
(Juta Law, 2007) De Vos, Pierre; Barnard, Jaco
This article reflects critically on the various stages in the legal recognition of same-sex marriage in South Africa. The authors devote particular attention to a connection between the apartheid order's use of the 'separate but equal' slogan and the operationalization of this slogan (and its political history) by activists to counter the legislative attempt to enact a second-class civil partnership regime for same-sex life partnerships in South Africa. The authors argue that the Constitutional Court's decision in the Fourie matter left Parliament with a carefully delineated mandate fully to recognize same-sex life partnerships by way of marriage. They critically evaluate the proceedings of the Home Affairs portfolio committee during the public participation hearings. In conclusion the authors consider the legal consequences (and paradoxes) of the enactment of the Civil Union Act 17 of 2006, which they read as a concession to colonialism in the broadest sense of that word.
Open Access
The South African Police Service Amendment Bill : possible compliance with Glenister v President of the Republic of South Africa : submission made to the South African Parliament, April 2012
(2012-04) De Vos, Pierre
A policy paper analysing the Constitutional Court judgment of Glenister v President of the Republic of South Africa and Others and comparing it to the draft legislation published to give effect to the judgment. The paper argues that the draft Bill does not fully comply with the judgment and proposes ways in which the draft legislation could be amended to make it compliant.
Open Access
The reasonableness approach of the South African Constitutional Court - making the constitutional right of access to housing "real" or effectively meaningless?
(2018) Lange, Pia Annika; De Vos, Pierre
The South African Constitution explicitly guarantees the right of access to housing (section 26 of the Constitution). To consider whether the state has fulfilled its positive obligations to take appropriate steps to realise the right of access to housing within its available resources, the Constitutional Court – based on the text of the provision 26(2) of the Constitution – uses the test of reasonableness. Contrary to the minimum core concept, which was developed through the General Comments of the United Nations Committee on Economic, Social and Cultural Rights and which is used to measure state actions in regard of the right to housing under Article 11 para 1 of the ICESCR, the reasonableness approach shifts the emphasis from the reasonableness of the solution to the reasonableness of the steps taken, moving away from a substantive right towards administrative oversight, which makes – so the assumption goes – the constitutional right of access to housing effectively meaningless. However, in this dissertation it is argued that it is not the reasonableness approach per se which hinders the implementation of the right of access to housing but rather the choice of remedy and the lack of (individual) access to the Court. In doing so, this study will show that the Court by using the reasonableness approach is acting in accordance with the wording and the transformative character of the South African Constitution and its own institutional role within the constitutional framework based on the separation of powers. Subsequently the study demonstrates that the effectiveness of the right of access to housing depends on the remedy granted by the Court and the possibility of access to the Court rather than the approach reverted to by the Court. Against this backdrop, the dissertation scrutinises what can be done to expand access to justice for claims flowing from the right of access to housing and thus to facilitate the right.
Open Access
The utilisation of ubuntu can promote accountability in public officials and state institutions as well as give effect to social solidarity in South Africa
(2018) Salie, Nadeem; De Vos, Pierre; Wandrag, M
INTRODUCTION The primary thrust of my work is to cast aside vacuous claims about ubuntu whilst emphasising the communal obligations’ focus of ubuntu. The state is duty-bound to give effect to socioeconomic rights as enshrined in the Constitution. Ubuntu, with reference to its communal obligations’ focus, could serve to facilitate the realisation of critical socio-economic rights as well as forge social solidarity. It is submitted that public officials that embrace ubuntu, as defined by an unwavering focus on communal obligations, will give effect to their duties (as provided for in the Constitution) as a means to create a just and caring nation-state. METHODOLOGY This is a mixed-methods study which delves into specific aspects of public law, anthropology and political philosophy. Political philosophy is explored as a means to develop a nuanced understanding of ubuntu whilst the anthropology discipline is utilised in order to develop a firm grasp of the lived reality of vulnerable groups. There is a specific focus on Constitutional Court jurisprudence (as pertaining to the progressive realisation of socio-economic rights as well as ubuntu) and the relevant international law obligations of the Republic of South Africa (i.e. the 2015 ratification of the International Covenant on Economic, Social and Cultural Rights). FINDINGS An exploration of political philosophy sheds light on the political landscape within which ubuntu is deployed and serves to confirm that to discuss ubuntu is to engage in a political act. The discipline of anthropology can make a telling contribution to the application and reception of law by providing textured insights of the lived reality of vulnerable groups. The Constitutional Court should utilise the minimum core obligation approach as a means to provide critical determinate content for key socio-economic rights. Furthermore, the Constitutional Court should embrace an oversight role in ensuring that the state does in fact progressively realise the subsistence rights of vulnerable groups. Ubuntu can in fact mesh with a human rights regime. This thesis serves to confirm the manner in which ubuntu, understood as an unwavering focus on communal obligations, can promote the accountability of public officials in South Africa (as well as foster social solidarity) by facilitating the progressive realisation of constitutionally guaranteed socio-economic rights. However, the expectations demanded of ubuntu should be tempered in the absence of an economic transition to fundamentally transform the living conditions of vulnerable groups.
Open Access
These queer gardens: a South African story
(Sun Media, 2014) De Vos, Pierre; Barnard-Naude, Jaco
Two white male Afrikaans gay academics decide to respond to a call for papers to be presented at a conference with the theme “Gardens of justice” in Stockholm, Sweden in 2012. In the course of their attempt to co-author an academic paper on the history of the struggle for sexual minority freedom in South Africa, they are confronted by their own histories, contradictions, literary influences and context - confrontations that ultimately mirror the instability of subjectivity and the valences of a critically queer positionality in post-apartheid South Africa.

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