#HistoryinPublications

From 1990 to 1994, the Community Law Centre (now: Dullah Omar Institute) focused its work on shaping a democratic South Africa. Under the leadership of Adv Dullah Omar, the Centre directly influenced the constitutional negotiations with academic research.

The Centre produced many papers, drafted by some of the African National Congress' key negotiators, on topics related to the quest for a constitutional democracy. Some of the papers can be downloaded below.

 

Western Constitutionalism and African Political Culture
Author: Albie Sachs
Published: Feb 07, 1996

This essay celebrates the life and impact of Dr Jack Simons, who taught African Law and Administration at the University of Cape Town from 1937 to 1964. Albie Sachs discusses Dr Simons’ influential work on the relationship between the governors and the governed in colonial Africa, the suppression of African law and Dr Simon’s role in setting up the ANC's Constitutional Committee to conceptualise the constitutional foundations for a democratic South Africa. Albie Sachs worked at the Community Law Centre from 1990 until 1994 when President Nelson Mandela appointed him to South Africa’s Constitutional Court.

Language Rights in the New Constitution
Author: Albie Sachs
Published: Jun 01, 1994

This paper is one of the first to address the emotive issue of language in South Africa. It discusses key concepts related to language issues and then examines South Africa's move, in the 1993 Constitution, from bilingualism (English and Afrikaans) to multilingualism (eleven official languages). Albie Sachs draws an important distinction between language rights, language policy and language practice. Finally, the paper contains a commentary on the constitutional provisions relating to language, discussing matters such as regional differentiation, the practicability of multilingualism and the role of the Pan South African Language Board.

Custom and Religion in a Non-racial Non-sexist South Africa
Author: Community Law Centre (ed)
Published: Feb 03, 1994

An edited volume of chapters emanating from a Conference convened by the Community Law Centre on 14-16 May 1993 on "Custom and Religion in a Non-racial, Non-sexist South Africa". The book is dedicated to Amy Biehl who wrote the executive summary. In her chapter, Brigitte Mabandla warns how a conservative lobby uses custom, religion but also regional autonomy to pursue a conservative agenda. Thandabantu Nhlapo writes about ‘dignity’ as a central concept to acknowledging traditional values. Sbongile Nene writes about how custom and religion contribute to disadvantages for black women. Beauty Mkhize focuses on rural women and Yvonne Mokgoro (who went on to become Constitutional Court judge) writes about the impact of customary law on rural women, David Malatsi sets out the position of the Congress of Traditional Leaders. Prof H Simons discusses how patriarchy and apartheid are used against women under the guise of custom and religion.

Challenges and Obstacles to Rural Development in South Africa.
Author: Tanya Abrahams Lamola
Published: May 23, 1993

The paper aims to give a broad and brief overview of the array of challenges and obstacles to rural development under a constitutional dispensation in South Africa. It attempts to touch on the complexity and linkages involved and to outline possible areas of intervention. In the opinion of the author, rural development equity between rural and urban areas, or the bringing of dignity and a liveable life for those in the rural areas cannot merely be achieved through a water-tight property clause in the Constitution.

South African Land Policy: The Legacy of History and Current Options.
Author: Hans P- Binswager
Published: May 23, 1993

The highly dualistic farm structure in South Africa and the low productivity of native African farmers have been the result of systematic distortions in land allocation, output markets and the provision of infrastructure. This dualistic structure did not emerge because of genuine economies of scale in the large commercial sector. Other countries in Latin and Africa that once supported a dualistic farm structure have either implemented large-scale land reforms or have experienced decades of peasants revolt and civil war. This paper compares these international experience in South Africa and outlines judicial and market-assisted approaches to South African land reform.

A feminist critique of the charter for social justice
Author: Bridgitte Mabandla
Published: May 22, 1993

This paper is a feminist response to the Charter for Social Justice. it provides a critique of the extrapolation of a constitutional model based upon a classical liberal Bill of Rights which draws boundaries between civil, political and social and economic rights. This paper incorporates the experience and demands of South African women. These are in essence, the constitutionalisation of women's rights in recognition of the full citizenship.

Introduction: Free and fair elections
Author: Nico Steytler
Published: May 22, 1993

The first democratic election for a Constitutional Assembly is set for 27 April 1994. The value of the elections is to be determined by the extent to which the elections had been free and fair. A considerable body of jurisprudence has developed in democratic countries about the meaning of the two concepts, 'free' and 'fair'. The aim of this book is to explore the legal principles underlying free and fair elections and suggest appropriate legal rules to ensure that the forthcoming elections are free and fair.

Should There be a Property Clause?
Author: Matthew Chaskalson
Published: May 22, 1993

Matthew Chaskalson (who later became a Constitutional Court Justice) in this paper discusses the implications of the constitutional protection of property in the United States and the Commonwealth. He posits that property is the primary source of inequality in contemporary society, constitutional entrenchment of property rights has invariably amounted to the constitutional entrenchment of privilege and inequality. Chaskalson then puts forward several considerations relevant to the drafting of a property clause if a situation whereby South Africa is forced to accept a property clause in the Constitution arises.

Women's Property Rights Under the Customery Law.
Author: Cawe Mahlathi
Published: May 22, 1993

Woman's property rights under customery law can be dismissed in one sentence. They have none. This paper examines how the principles of equality and non-discrimination can be reconciled with customery law and the means by which these can be advanced.

Women's rights discussion document
Author: Bridgitte Mabandla
Published: May 22, 1993

The Community Law Centre (CLC) re-produced the document below entitled "Women's Rights-A Discussion Document", to enable popular organisations involved in the struggle for women's rights as well as full gender sensitivity and non-discrimination to focus on the issues which were raised during the conference which took place from November 29 to December 2 1990. The CLC of the University of the Western Cape played a major role in organising the conference. Some of the themes discussed in the conference included, patriarchy, customs and gender, the legal status of South African woman, women and religion and finally, violence and sexual harassment against women. The CLC published this document with the hope that in the process for constitution-making that the issues raised in the conference would not be bypassed or ignored.

Towards a Future Mineral Mineral Law System for South African.
Author: Patrice P Motsepe
Published: May 22, 1993

This paper consists of two parts. The first part briefly discusses the common law and the Minerals Act 50 of 1991. The second part deals with the proposed changes to the mining and mineral laws of South Africa. The author asserts that, despite having a comprehensive range of the Mineral Act, there still remains some important aspects of the mining law which are governed by the common law. The author then proceeds to outline what these aspects are and the principles which govern them, as well as the impact and changes the Mineral Act has brought to the fore since its coming into operation.

ANC discussion document on structures and principles of constitution for democratic SA
Author: African National Congress
Published: May 21, 1993

In this discussion document, two documents are provided and discussed. The first document provides a discussion on constitutional principles while the second document discusses the commentary on the structure of a Constitution for democratic South Africa. Specific attention is drawn to some of the areas of discussion which include whether South Africa should have a ceremonial President plus a Prime Minister answerable to Parliament? or an Executive President (Without a Prime Minister) answerable to Parliament? How is the President to be elected? By direct elections or Parliament? and so forth.

Compensation for Expropriation: The Political and Economic Parameters.
Author: Aninka Claseens
Published: May 21, 1993

There is a concern in certain quarters, also expressed within the ANC, that compensation for expropriation should be at market value. The reasons given include factors such as the necessity to create a stable environment for investment and the desirability of creating a secure system of property rights. In this context it is argued that the new government must be seen to be fair and make a clear-break with the racially discriminatory land policies of the past. The main thrust of this paper is that it would be a mistake to establish a system which defines rights to compensation as finite individual claims against State resources. Rather, it is posited that compensation for loss should be proportionate to past and present interests in the land.

Draft Property Clauses in a Proposed Bill of Rights.
Author: Kader Asmal
Published: May 21, 1993

This paper provides a brief discussion on some of the clauses in the proposed Draft Bill of Rights of 1990 that related to property and land rights. The author discusses the different proposals that were received from different political parties such as Inkatha Freedom Party, National Party, African National Congress as well as experts and the South African Law Commission on how the land and property clause may be drafted.

Women, Rape and Violence in South Africa
Author: Kathryn Ross
Published: Mar 03, 1993

South Africa has the highest instance of rape when compared to other countries. Approximately 15 000 cases of rape are reported in South Africa each year. The papers offered here are preliminary studies that aim to highlight the inadequacy of the law in protecting woman against rape and battering, two of the most prevalent forms of violence against woman in South Africa. The articles explain in detail some of the strategies that have been initiated by countries around the world to combat violence against woman. These include countries like Malaysia, Bolivia, India and Pakistani. It is hoped that South Africa can also learn from some of these strategies in its approaches to dealing with violence against woman.

Structures for Women in Political Decision Making
Author: Amy Biel
Published: Mar 01, 1993

This document, penned by Amy Biehl, articulates women's demands with respect to participation in political decision making in a future South Africa. It examines the comparative experiences in designing and implementing structures to promote increased women participation. She thus discusses various options to increase women participation, such as constitutional mechanisms, electoral rules, a women's ministry, political party structures etc. Amy Biehl was a Fulbright Student Intern at the Community Law Centre. A few months after writing this paper, Amy was tragically killed by a mob of youth in Gugulethu while driving three co-workers home.

Religion, Education and Constitutional Law
Author: Albie Sachs
Published: Nov 07, 1992

This paper outlines the basic principles concerning the relationship between religion and the state, the role of religious bodies and the vexed issue of religious education in schools. It is a transcription of a lecture, delivered by Albie Sachs at the Institute for Comparative Religion in Southern Africa (UCT) in November 1992. It starts with a fascinating anecdote about how the format of CODESA was adapted to, for the first time accommodate multiple religions and how discomforting this was for the National Party government.

A Children's Rights Research and Advocacy Project Discussion Paper
Author: Brigitte Mabandla et al
Published: Jul 01, 1992

This collection of essays is located in the reality that, in the words of Dullah Omar's preface, "children have assumed positions, that would be unbearable even by their elders, in prisons, courtrooms and workplaces". It discusses discrimination against children, violence against children, the position of children with disabilities and the earliest proposals for reforms to juvenile justice. It contains contributions by Dullah Omar, Brigitte Mabandla, Michelle Morris, Colleen Howell and Vuyo Mahlati.

Chieftancy, the Ethnic Question and the Democratisation Process in South Africa
Author: Zola Skweyiya
Published: Jul 01, 1992

This paper examines the institution of traditional leadership in South Africa. It details the abuse of chieftaincy as an instrument in exploitation in Africa and focuses on how chieftaincy played an crucial part in implementing the bantustan policy. Zola Skweyiya warns, though, against being blind and insensitive to the influence and authority of traditional leaders in South Africa. He discusses chieftaincy and local government and ultimately asks the question as to whether traditional leadership can be "moulded to entrench, stabilise and legitimise democracy, especially at local level". Zola Skweyiya went on to become a Minister of Public Administration (1994 - 1999), Minister of Social Development (1999-2009) and High Commissioner to Great Britain.

Affirmative action and black advancement in business
Author: Albie Sachs
Published: Jun 11, 1992

In this paper, written in 1992, Albie Sachs sketches the grossly uneven patterns of ownership and opportunity in business, created by apartheid. It includes an anecdote of the humiliation inflicted on Ismail Mahomed, who was to become Chief Justice, when he argued his first case in the Appellate Division. Albie Sachs discusses Nationalisation, Africanisation and quotas in business. He argues pointedly: “[I]t is not that we wish to Africanise the economy, we wish to South Africanise it”. He maintains strongly that non-racialism may not become the instrument for protecting racial advantage. He then proceeds to discusses the proposal made by the National African Federated Chamber of Commerce (NAFCOC) to demand the "3, 4, 5, 6..." targets for representation, equity, supply and management of JSE-listed companies. He concludes with suggesting seven criteria to govern the application of affirmative action. This paper was published under the auspices of the SA Constitution Study Centre, which was based at the Community Law Centre.

Community Voices on Policing in Transition
Author: Clifford Shearing and Mzwai Mzamane
Published: Jun 01, 1992

This paper deals with the transformation of the South African Police Services (SAPS) during the transition to democracy. It presents the views of 45 people who all had been involved in the struggle for democracy and were affected by the actions of SAPS. They were interviewed to give their views on the role of SAPS in the democratisation of South Africa and to canvass suggestions for the reform of the South African Police Services during the transitional period. The respondents saw SAPS as a central pillar of apartheid, fundamentally racist and created to maintain law and order in an oppressive state. It was not going to be easy to put it to the service to dismantle apartheid. However, the respondents offered many suggestions. Embedding SAPS in a legitimate state was a precondition but other suggestions were, such as offering extensive training for SAPS officers, reducing the power of independent police units, ensuring independent oversight, bringing in greater community liaison and many more.

Increased Awareness by Women of their Rights
Author: Bridgitte Mabandla
Published: May 01, 1992

The paper examines the promotion of women's rights and is located in the context of the ongoing negotiations in CODESA. Brigitte Mabandla focuses on the lack of awareness of women's rights. She discusses various features of the women's movement in South Africa as well as the challenges of engaging urban and rural women's groups on rights issues. She discusses the campaign for a women's charter including the question as to whether it should be part of the Bill of Rights.

Seeking Justice for the Children of South Africa
Author: Michelle Morris (ed)
Published: Mar 01, 1992

The preface for the book is written by Dullah Omar. He introduces the Centre's Children's Rights Project as a project that promotes the rights of children who suffered and still suffer as result of apartheid. The book contains a comprehensive overview of the abuses suffered by youth at risk or in trouble with the law at the hands of a cruel criminal justice system. Furthermore, it makes important recommendations for a more rights-based approach to dealing with children in conflict with the law. The various chapters, put together with the help of UWC Law students, discusses the powers of the police, pretrial detention, recommendations for diversion, children in court, legal representation for children, alternatives to punishment and rebuilding family life.

Rooting Democracy on African Soil
Author: Zola Skweyiya
Published: Mar 01, 1992

Zola Skweyiya presents a comprehensive vision for a future South Africa, broken down in sections dealing with African independence, the legacy of colonialism, the crisis of legitimacy in the South African political system. He also discusses the role of the state in development and critiques the economic policies of the De Klerk government. He advocates for higher levels of participation in the economy and proposes a "social system which consciously limits the gross disparities in income and wealth" . He warns against ignoring ethnicity in the quest towards national unity and reflects on the role of civil society in democratisation. Finally he presents proposals for post-apartheid constitution based on key values such as constitutionalism, women rights and separation of powers. Zola Skweyiya went on to become a Minister of Public Administration (1994 - 1999), Minister of Social Development (1999-2009) and High Commissioner to Great Britain.

Does a New South Africa Need Regions?
Author: Bantu Holomisa
Published: Mar 01, 1992

The future structure of the South African state was a major negotiation point during CODESA. Bantu Holomisa discusses the advantages and disadvantages of unitary and federal options for South Africa. He favours a unitary system that uses regions as an administrative structure and warns against experimenting with a system of federalism "which has not succeeded anywhere in Africa". He warns against regionalism based on ethnic division and favours objective criteria for the delineation of regional boundaries. At the time, Bantu Holomisa was the Head of the Transkei Government. He went on to become a Member of Parliament and co-founder and President of the United Democratic Movement (UDM).

Constitutional Structures: Fundamental Differences Between the Proposals of the South African Government and the African National Congress
Author: Arthur Chaskalson
Published: Mar 01, 1992

Arthur Chaskalson compares various proposals made by the National Party government and the ANC during the negotiations towards the 1993 Constitution. He discusses government's proposals with respect to constitutional structures such as Parliament and the Presidency. He reflects on the bicameral system, presidential executive systems and parliamentary executive systems as options for a future South Africa. At the time, Arthur Chaskalson was Direction of the Legal Resources Centre and member of the ANC Constitutional Committee. He went on to become a Constitutional Court Judge and Chief Justice.

The Situation of Women in a Changing South Africa
Author: Brigitte Mabandla
Published: Nov 23, 1991

In this paper, delivered to the United Nation’s Centre for the Development and Advancement of Women in Geneva, Brigitte Mabandla provides an overview of the state of women’s rights in South Africa in 1991. She explains how women are organised and discusses the launch of the ANC Women’s League and other organisations promoting women’s rights. She also explains how the ANC underwent a change internally, coming to terms with understanding race, class and gender struggles. She discusses the role of Universities (the University of the Western Cape in particular) in conceptualising gender oppression. Finally, she provides an overview of those provisions in the ANC's draft Bill of Rights (1991) that protect women’s rights, ranging from equal rights, affirmative action and the ‘right to a home’.

Women Decide on Their Future
Author: Brigitte S Mabandla
Published: Nov 01, 1991

The work plan for the gender programme which is entitled "Woman decide on their future" is a project that sought to formulate a concrete strategy that would form the theoretical backbone of the woman's movement in South Africa both during the constitutional negotiations and in the early years of the future democratic South Africa. In this note, Mrs Brigitte Mabandla discusses the reasons behind the inception of the project, the different stakeholders involved in the project and where it was launched, as well as the various stages of the work plan.

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