Browsing by Author "de Vos, Pierre"
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- ItemOpen AccessA Third Gender in South Africa: Does the legal non-recognition of a third gender violate non-binary transgender person's Constitutional rights to dignity and equality?(2020) Sloth-Nielsen, Rachel; de Vos, PierreThis dissertation will attempt to answer question whether, in terms of the right to dignity in s10 and the prohibition of unfair discrimination in s9 of the South African Constitution, the State must recognise in law a third gender for transgender individuals who do not identify as either male or female. It does so, first, by asking whether the failure by the state to provide for the legal recognition of a third gender violates transgender person's right to dignity. Second, the enquiry proceeds to discuss whether s9(3) of the Constitution (which prohibits unfair discrimination on any ground, including on the listed grounds of sex, gender and sexual orientation) requires the state to recognise a third gender. After discussing the lived experiences of transgender persons in South Africa, the thesis reviews the terminology and concepts relevant to this area of study, in order to lay the foundation for the subsequent examination of relevant case law, the Constitutional Court's approach to dignity, and the analysis of the application of s(9)(3). I submit that transgender persons fall within the Constitutional Court's definition of a vulnerable group in that they have suffered past patterns of disadvantage, they constitute a minority in South Africa and are subject to stereotyping and bias. Despite the Constitutional Courts erroneous pronouncement that transsexualism falls under the umbrella of sexual orientation, it is argued, rather, that since the expression of their gender identity by gender nonconforming persons shares many of the characteristics of the specified grounds listed in s9(3), unfair discrimination can be found on a ground analogous to those grounds listed in the Constitution. The failure to allow for recognition of a third gender is thus under-inclusive. It cannot be justified under the limitations analysis. Further, if objections were to be raised by the state that recognition is not feasible or affordable and is, hence, justified, I conclude that because there are ways to accommodate individuals who do not identify as binary which are not unduly taxing on the State, this argument would fail.
- ItemRestrictedAn analysis of how Zimbabwe’s international legal obligation to achieve the realisation of the right of access to adequate housing, can be enforced in domestic courts as a constitutional right, notwithstanding the absence of a specific constitutional right of every person to have access to adequate housing(2018) Mavedzenge, Justice Alfred; de Vos, Pierre; Corder, HughThe Constitution of Zimbabwe of 2013 does not expressly guarantee every person a right to have access to adequate housing. However, the Government of Zimbabwe has an international legal obligation to achieve the progressive realisation of the right to have access to adequate housing by everyone in the country. This obligation is derived from art 11 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Zimbabwe is a dualist state and therefore, this obligation is not directly or automatically enforceable as municipal law in Zimbabwe. It can be enforced in domestic courts only if it has been enacted into legislation or if it is entrenched as a constitutional obligation. The absence of a specific constitutional right, guaranteed for everyone to have access to adequate housing, thus raises the concern that the government may not be held accountable, in the domestic courts, to comply with its international legal obligation to ensure that everyone enjoys access to adequate housing. There is a national housing crisis in Zimbabwe that is characterised by an acute shortage of adequate housing, mass forced evictions and unfair discrimination in the allocation of housing facilities by government. There is therefore an existing need to compel government to comply with and fulfil its international legal obligations relating to the right of every person to have access to adequate housing. In the absence of an explicit constitutional guarantee of such a right, it is necessary to find alternative constitutional rights which citizens and individuals in Zimbabwe can rely on to compel Government to comply with and fulfil its international legal obligations that arise from art 11 (1) of the ICESCR. The Constitution of Zimbabwe expressly guarantees for everyone the following rights; the fundamental freedom from arbitrary evictions, the right to life, the right to equality and the children’s right to shelter. The scope of each of these rights can be interpreted broadly to include some of the duties that ordinarily arise from the right to have access to adequate housing. Therefore, these rights can be applied together to enforce the international legal duty of the state to ensure the progressive realisation of the right to have access to adequate housing by everyone in Zimbabwe.
- ItemOpen AccessEvaluating The Human Rights Committee's Advancement of Norms to Protect Individuals of Diverse Sexual Orientation, Gender Identity and Expression and Sex Characteristics(2021) Stærfeldt, Leonora Kleppa; de Vos, PierreThroughout the world human rights abuses are committed against individuals on the grounds of their sexual orientation, gender identity and expression or sex characteristics (SOGIESC). The Human Rights Committee (HRC), which is the monitoring body of the International Covenant on Civil and Political Rights (ICCPR), can play a role in ensuring that human rights violations targeting SOGIESC diverse groups end. This can be done through the advancement of SOGIESC norms. By advancing SOGIESC norms the HRC would affirm that the rights in the ICCPR extend to SOGIESC diverse groups, thus promoting protection of SOGIESC diverse groups' civil and political rights. This dissertation examines the extent to which the HRC advances SOGIESC norms. This is realized through a combination of quantitative and qualitative analysis of how the HRC has engaged with SOGIESC under the auspice of its three monitoring functions – Views in individual communications, Concluding Observations and General Comments. The findings are explored within the theoretical framework of norm formation and theories about intrinsic qualities of successful norms. The analysis reveals that the HRC's advancement of SOGIESC norms is characterized by uneven progress. On one hand, the analysis demonstrates that the HRC has progressed significantly in its advancement of SOGIESC norms during the last 25 years. The HRC has increasingly advanced norms to affirm that numerous rights enshrined in the ICCPR extend to SOGIESC diverse groups. On the other hand, the analysis shows that progression on advancement of SOGIESC norms by the HRC is qualified. The HRC has not advanced the distinct SOGIESC norms equally, nor do the SOGIESC norms advanced by the HRC apply equally to individuals of diverse sexual orientation and gender identity and expression and sex characteristics. It is concluded that there is still scope for the HRC to improve advancement of SOGIESC norms. The dissertation offers three recommendations as to how the HRC can improve advancement of SOGIESC norms to achieve more comprehensive protection of SOGIESC diverse groups' human rights.
- ItemOpen AccessInheritance and redistribution: exploring the constitutional commitment towards redistribution in the private law of succession(2021) Cogger, Jonathan; de Vos, Pierre; Paleker, MohamedThe inevitability of the death of all property owners means that the redistribution of property at death is a basic function of the law of succession. In the systems that recognise testamentary freedom (including South Africa), the right to distribute property after death is considered as a natural extension of the entitlements that an owner enjoys while alive. Testamentary freedom is an age-old common law principle that has formed part of our law since time immemorial. This right vests in individual owners, and courts (and functionaries of the state) are obliged to give effect to the clear intentions of testators as expressed in their wills. Ownership therefore forms the basis of the right to make testamentary disposals that become enforceable after death. In this way, a primary role of testate succession law is to extend the rights of owners after death. The question this thesis seeks to answer is whether the common law right to dispose of property after death is a constitutionally protected property right in light of constitutional commitments to redistribution, restitution and historical redress. This involves an interpretation of the nature, purpose and scope of section 25 of the Constitution in the context of the common law of testate succession. In this thesis, I critique the academic and judicial view that ownership is central to the constitutional protection of the common law principle of freedom of testation. I argue that the current interpretation of the property clause represents a one-dimensional view of property rights that ignores accepted constitutional property jurisprudence of the interpretive approach to the property clause, including its dual purpose in protecting as well as transforming property relations and the emphasis on our historical context of past discrimination. In essence, my thesis is a critical evaluation of the nature and scope of testamentary freedom for the purposes of justifying the redistribution of wealth and property at death. My ultimate goal is to show that the redistribution of property through inheritance law is politically and constitutionally justified.
- ItemOpen AccessThe constitutional case for legal regulation of illicit drugs in South Africa(2021) Vieira, Marco-Alain; de Vos, PierreThe principal argument of this paper is that South Africa's current drug policy is unsound and unconstitutional. The legislative and policy framework is based on the prohibition of certain psychoactive substances deemed illicit and the criminalisation of their production, distribution and use, to wit: prohibition drug policy. This paper contends that prohibition drug policy is unsound on the grounds that it is utterly ineffective and vulgarly counterproductive. This is because prohibition drug policy fails to reduce the demand for, restrict the supply of or allay the harms associated with drugs. Furthermore, prohibition drug policy, in fact, greatly exacerbates drug-related harms for individuals and their communities. This is starkly exposed in the light of the devastating consequences pursuant to the drug war. In addition, this paper contends that prohibition drug policy, and the legislation that enacts it, the Drugs and Drug Trafficking Act, is unconstitutional. This, on the grounds that it unjustifiably violates the right to privacy, the right to freedom, and the right to human dignity. Moreover, the alternative drug policy of decriminalisation is a far less restrictive means of achieving the legitimate purpose of drug control in society. Lastly, this paper contends that prohibition drug policy ought to be replaced instead by the more effective, just and humane policy of the legal regulation of drugs. This, on the grounds that the South African constitutional dispensation compels a drug policy that takes a human rights-based, public health approach to drug control.
- ItemOpen AccessWhat is the role of the Constitutional Court in Safe-guarding the separation of powers in a dominant party democracy?(2018) Jaftha, Justin Willian; de Vos, PierreThis thesis presents an analysis of the effect of dominant party democracy on South Africa’s traditional trilateral structures of government, with emphasis on the Constitutional Court. A dominant party democracy brings with it negative features, such as the blurring of boundaries of state and party, and the capturing of important institutions. In South Africa, it is specifically the capture of various independent institutions (state capture) by a dominant party and the placing of its members into these institutions to remove effective checks on the exercise of power by the government, which have been a worrying trend recently. This, in turn, spells rough weather ahead for our constitutional democracy, because it has the effect of withering down the effective system of checks and balances as part of the separation of powers doctrine in South Africa.The central question to explore in this thesis is thus. how the Constitutional Court can protect the democratic space by acknowledging the challenges posed by one-party dominance to democratic institutions and developing doctrines/strategies to deal with this, while not overstepping the mark and infringing on the separation of powers. This is not an easy task for the Constitutional Court to get exactly right. Thus, the Constitutional Court of South Africa has been widely criticised for avoiding any formal confrontation with the current government during its early years. Critics focused on cases such as the UDM floor crossing case and Glenister I. These two decisions have come under attack from constitutional law scholars, who labelled the Constitutional Court as a constrained court and argued that the court was not sufficiently pro-active in confronting the challenges of a dominant party democracy directly. This has led some scholars to the view that the South African Constitutional Court needs to develop a well thought through theory of the threat posed by the dominant party to the quality of South Africa’s democracy. The argument is that there may be a need for the South African Constitutional Court to develop a formal jurisprudence to deal with the negative consequences of a dominant party democracy. In this thesis, I will argue that this critique against the South African Constitutional Court seems out-of-date and, to some extent, overdone. The Constitutional Court in recent years has altered its approach and now deals differently (and more effectively) with the problems posed by dominant party democracy. This is evident from recent decisions such as the UDM secret ballot and two EFF judgments and the Glenister II judgment. In my view, the Constitutional Court has become more forceful in protecting the democratic space in South Africa because of changing political circumstances and because of the weakening position and complex, and sometimes contradictory, responses 8 from the ruling party in South Africa. At the same time, the Constitutional Court has acted with appropriate deference, addressing problems associated with one-party dominance while also showing adequate respect for the separation of powers doctrine. By adopting this approach, and if one views the Constitutional Court’s role through the lens of dominant party democracy, South African democracy – and South Africans themselves – have been better off. If the Court had taken a more forceful approach, it would have placed itself on a direct collision course with the ANC. That might have put the Court’s very existence at risk, and our hard-fought democracy.