Browsing by Author "de Vos, Pierre"

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    A 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, Pierre
    This 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.
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    An 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, Hugh
    The 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.
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    Evaluating 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, Pierre
    Throughout 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.
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    Inheritance and redistribution: exploring the constitutional commitment towards redistribution in the private law of succession
    (2021) Cogger, Jonathan; de Vos, Pierre; Paleker, Mohamed
    The 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.
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    Is the TRIPS Agreement and its' safeguards still a stumbling block in fulfilling the right to health and if so what should be done?
    (2010) Gill, Alison Elizabeth; de Vos, Pierre
    In order to meet the Millennium Development Goals by 2015 the world must radically rethink the means of achieving the targets set by these Goals. The developing world is crippled by poverty and disease; HIV/ AIDS is rife in Africa and is spreading at frightening speed to many other parts of the globe. World Health Organisation (WHO) figures suggest that in 2008 33 million people were infected with HIV. Chapter I shall consider the problem of the AIDS/HIV epidemic in more detail and the international response so far. The chapter shall then look at the various sources of international law within a human rights context to determine whether states have an obligation to do something about the disease. Preventative strategies on their own however will not effectively deal with the pandemic; in order to reverse the tide medical professionals also require access to essential drugs to treat patients already infected. One of the greatest hurdles to overcome is the patentability of pharmaceuticals in the health sector; such patents are undoubtedly limiting the availability and affordability of the life saving anti retroviral medicines (hereinafter ARV's) required to treat the disease. If we are to combat HIV/ AIDS and other diseases it is essential that society looks towards changing the pharmaceutical protection that is afforded under the TRIPS Agreement. Under this Agreement pharmaceutical manufacturers are able to patent their brand of drug which prevents other companies from selling the same drug without the patent owner's permission for a potential period of 20 years. At present the vast majority of the world's developing population are unable to afford costly life saving medicines. The TRIPS Agreement and the concept of pharmaceutical patents allow drug manufacturers to keep the cost of medicine high without the fear of competitor drugs and the medicines can therefore be given an artificially high price. In the context of HIV/AIDS, in developing countries where people often have to pay for ARV's out of their own pocket it is vital that they are affordable. Countries like India have previously been able to manufacture cheaper generic medicines as the pharmaceutical industry was not protected under Indian patent law, but since the introduction of the TRIPS Agreement, pharmaceuticals now fall under the rules of international intellectual property protection. Chapter 2 aims to discover the concept behind intellectual protection for pharmaceuticals, it shall also look at the international regulatory bodies of intellectual property. The World Trade Organisation is the international forum in which the TRIPS Agreement was born and one of the main objectives of the organisation as a whole is to increase standards of living, yet the concept of drug patenting appears to contradict this objective. The TRIPS Agreement therefore includes flexibilities to allow WTO Members to be able to provide essential medicines including ARV's to the public, Chapter 3 shall begin by looking at the TRIPS Agreement and the safeguards provided within the agreement. Over the last decade the provisions of the TRIPS Agreement has been a disputed issue and the Agreement has undergone changes during further WTO negotiation rounds. Concerns were aired during the World Trade Organizations negotiations in 2001 at the Doha Ministerial Conference and the topic has remained a controversial one ever since. Chapter 3 shall continue by looking at the international declarations created from recent WTO negotiations. Developing countries are pushing for an even broader scope of patent applications which would result in more pharmaceutical products becoming patentable for 20 years. As the process of globalisation continues, new trade agreements are having a greater impact upon access to drugs. On the one hand inventors should be rewarded for their efforts in researching and developing medicines, on the other, humanity has a right to health which includes access to treatment. International Law is often faced with conflicting rights; in this situation a balance must be struck which reflects the interests of the right to health and the right to intellectual property protection. In recent years the link between the right to health and the topic of medical patents has become an issue for debate on the world stage. The enforcement of the Agreement on Trade-Related Aspects of Intellectual Property has to some extent harmonized patent laws and set a higher minimum standard of protection and for the enforcement of intellectual property for countries to guarantee. This has greatly worried many developing nations and health organisations in relation to the impact this has on access to essential medicines especially in the area of HIV/ AIDS treatment. Chapter 4 shall look at the conflicts of norms in international law and how such situations should be dealt with in both a human rights context and within the WTO framework. Modern technology makes it possible to treat many diseases including HIV, however until an effective mechanism in dealing with the problems of patenting is enforced the health of some of the poorest nations are unable to benefit. Chapter 5 shall look to the possible solutions in solving this conflict. The outcome of this dissertation is to show that the current (amended) Agreements and Declarations are still failing in their intention to provide that balance between the right to health and intellectual property rights, using access to HIV/ AIDS medicines as a prime example. It shall be argued that conflicts between these norms in International Law must be addressed, and the current flexibilities in the TRIPS Agreement should be reviewed.
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    The constitutional case for legal regulation of illicit drugs in South Africa
    (2021) Vieira, Marco-Alain; de Vos, Pierre
    The 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.
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    What 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, Pierre
    This 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.