‘The past is unpredictable’: South African history and the understanding of the constitution



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University of Cape Town


UCT Summer School Lectures 2014

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-...