#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.

 

The Right of Access to Adequate Housing in Terms of Section 184(3) of the Constitution.
Author: Karrisha Pillay
Published: Jun 10, 1999

The Report analyses the nature of the right of access to adequate housing and the obligations that it imposes on the State. It then makes a summary of and proceeds to analyse information submitted to the SA Human Rights Commission by provinces and local governments on measures taken to realize the right of access to adequate housing. The Report then makes recommendations as to how the annual reports submitted to the Commission as well as the realization of the right of access to adequate housing can be improved upon and strengthened.

Towards Making The Right of Access to Health Care Services a Reality.
Author: Community Law Centre
Published: Apr 14, 1998

Although the inclusion of economic and social rights in the South African Constitution is much welcomed, the practical realization of this category of human rights is proving to be a tremendous challenge. This article examines the right of access to health care services and provides some insight into the meaning of the right and the nature of the obligations that it imposes on the state. In doing so, some reference is made to the International Covenant on Economic, Social and Cultural Rights. While the Covenant was ratified by the South African government, the general comments by the Committee on Economic, Social and Cultural Rights provides some useful guidance into certain aspects of health rights.

Gender Policy Considerations.
Author: Community Law Centre
Published: Apr 05, 1998

This submission will focus on certain broad concerns as regards the Gender Policy as well as certain specific issues that are contained within the document. However, it must be noted at the outset that this submission does, by no means provide a comprehensive critique of the Gender Policy Document. Instead, it focuses of certain broad issues that are applicable to the entire policy and are considered to be highly problematic and certain specific issues that are within the expertise of the writer.

Defining Relevant Organs of State In Section 184 (3) of the Constitution.
Author: Karrish Pillay
Published: Dec 12, 1997

Section 184(3) of the Constitution provides as follows: "Each year, the Human Rights Commission must require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realization of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment. " This paper unpacks the various approaches used to define "relevant organs of state' and after which postulates its own preferred meaning of the phrase.

Gender Equality in the Enjoyment of Socio-Economic Rights: A Case Study of the South African Constitution.
Author: Sandra Liebenberg
Published: Dec 01, 1997

The founding values of the Constitution include human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism and non-sexism.3 These values are given concrete expression by the entrenchment of a Bill of Rights in the Constitution containing a comprehensive set of civil, political, economic, social and cultural rights. The inclusion of justiciable socio-economic rights in the Bill of Rights represents a commitment to ensuring that all in South Africa enjoy a standard of living consonant with human dignity. This paper examines how the South African Constitution intends to promote and enforce gender equality in the enjoyment of socio-economic rights.

Joint Submission On the Housing Bill by Housing Rights and Gender Working Group.
Author: Housing Rights and Gender Working Group
Published: Sep 17, 1997

The Housing Bill was intended to give content to the constitutional right of access to adequate housing. The Working Group’s submission addressed the fact that the Bill’s provisions appeared to be gender-neutral in a society were discrimination against women was ingrained. It proposed gender equality to be included in the Bill as an integral principle. The Working Group undertakes a short gender analysis of the housing allocation process and illustrate with the use of various case studies how unequal gender relations undermine women’s ability to access housing equally. The Working Group then proceeds to make recommendations for the attainment of the constitutional guarantees of both substantive gender equality and adequate housing to be included in the provisions of the Housing Bill.

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.

Anti-discrimination Legislation: Access to Health Care Services.
Author: Karrisha Pillay
Published: Mar 26, 1995

The achievement of equality and non discrimination is one of the founding values of the South African Constitution1. Section 9 of the Constitution entrenches the right to substantive equality and guarantees to every individual the full and equal enjoyment of all rights and freedoms. Section 9(2) of the Constitution allows for legislative and other measures to promote the achievement of equality for individuals or groups who have been disadvantaged by unfair discrimination. Sections 9(3) and 9(4) further prohibit direct or indirect discrimination (policies or laws which, though neutral in their formulation, have a discriminatory impact on certain individuals or groups of individuals) on a host of grounds. This article discusses the grounds on which discrimination is expressly prohibited in terms of Section 9(3) includes race, gender. However, the author notes that this list of groungs is by no means exhaustive and there is nothing to preclude discrimination on any additional ground that is not included within the ambit of Section 9(3).

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.

Resource Allocation: Land and Human Rights In a New South Africa.
Author: Winston P Magan
Published: May 23, 1993

The land question is a special problem in the context of a larger constellation of problems concerned with the 300-year legacy of economic malfeasance, incompetence and expropriation of the economic patrimony of the mass of the people of South Africa. It is the basic recommendation of this paper that the land problem of South Africa must be seen in light of the emerging human right to development. This is a right which affirms the vital importance of putting the land problem into a realistic socio-economic and political context.

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.

Property As a Human Right
Author: Albie Sachs
Published: May 22, 1993

In this paper, Albie Sachs discusses the phenomenon of landlessness and homeless families in the South African context. The author asserts that there is a group in South Africa that favours private initiative and more often it finds itself in a constant battle with attempts by the State to regulate their activities. This group is the shack dwellers, the so-called squatters on the outskirts of the cities. Mr Sachs postulates that the issue of landlessness and homeless can be addressed by reconciling two competing considerations. The first one is about dealing with with massive landlessness and rightlessness produced by Apartheid and secondly, to not allow people to be arbitrarily deprived on an interest lawfully achieved. The author then ventures to discuss these two considerations in detail and sets out how these considerations can be reconciled with a view to address the issue of prevalent landlessness and homelessness in South Africa.

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.

Land and Property Rights: The Decolonisation Process and Democracy in Africa: Lessons From Zimbabwe and Kenya.
Author: Shadrack Gutto
Published: May 22, 1993

The introduction of this paper provides some key conceptual explanations that are considered important in the discussion of property and land relations and rights in the colonisation and de-colonisation processes in Africa. This is followed by an analysis of the struggle for property and land, as partly reflected in the constitutional-making process and other legal forms in Zimbabwe. The paper ends by drawing some broad conclusion to supplement or highlight those made in the main body, which may be pertinent to the constitution-making process and other policy considerations in the South African context.

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

Matthew Chaskalson 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.

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