Browsing by Subject "Constitutional Law"

Now showing 1 - 5 of 5
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    Constitutional rationalisation of legislation dealing with traditional justice system
    (2014) Ngema, Phumelele O P; Smythe, Dee
    My thesis addresses the question of whether an imposed traditional justice system operating through traditional courts is still relevant in South Africa. I interrogate whether traditional courts are necessary in a constitutional democracy outside of the existing western type courts system. The Constitution, in terms of chapter 12, recognises traditional leaders and enjoins government to enact national legislation that provides for the role of traditional leadership at a local level. As a unitary democratic state with diverse cultures, the Constitution also acknowledges and grounds diversity which could be interpreted as permitting legal pluralism. I argue that the Constitution envisages recognition and application of the indigenous system within the existing courts of law and subject to the Constitution. Traditional leaders must be recognised in line with the injunction that customary law must be developed and applied by courts. Any other different construction on how traditional courts may be rationalised promotes the interest of traditional leaders and creates an unstable pluralist legal system enabling inequality and discrimination contrary to constitutional imperatives.
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    Does the lack of sufficient formulation and articulation of principles guiding the limits of the Constitutional Court undermine its legitimacy?
    (2014) Naidoo, Sherilyn Shale; Corder, Hugh
    It is not simply enough to have a separation of powers written on paper. In this paper I shall look at the pragmatic approach adopted by the Constitutional Court when adjudicating upon executive and legislative power in order to ensure its institutional security and legitimacy. I shall evaluate throughout this paper how the lack of sufficiently and consistently formulating and articulating principles that guide the Constitutional Court’s own limits could actually undermine the Court’s legitimacy in our current political climate.
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    Good faith in contract: a uniquely South African perspective
    (2019-04-01) Hutchison, Andrew
    While the doctrine of good faith has always played a role in South African contract law, it is currently being reshaped by the courts under a banner of “transformative constitutionalism”. Of particular interest in this development is the role of an indigenous value of fair dealing, captured by the vernacular term “ubuntu”. The article will (1) compare the Canadian findings in Bhasin with the current South African status quo, and (2) comment on the evolving legal culture of contract in South Africa. In this regard, the role and meaning of ubuntu will be contextually evaluated using social science materials. In combination, this will provide a uniquely South African perspective on an area of contract law which is evolving in the Commonwealth.
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    The application of the Bill of Rights
    (1998) Borman, P J; Corder, Hugh
    For centuries South Africa has been embroiled in racial conflict with human rights as one of the tragic casualties. With the adoption of the lnterim and Final Constitutions a decisive break was made with the past. One of the foundations laid to forge our new society based on equality and human dignity was the adoption of a Bill of Rights. Embodied in the clauses of the Bill of Rights are the values by which the people should guide their conduct in the future.
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    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.