#HistoryinPublications

A Guide to Pre-Trial Consultation in Rape Cases

This Guide is aimed at providing rape survivors with a better understanding of how the criminal justice trial works and what they can expect when giving evidence. This book, a produce of a collaboration between the Community Law Centre and Rape Crisis, sets out Rape Crisis' pre-trial consultation model and contains notes to enable rape counsellors to understand the emotional demands that a trial places on survivors.

The Right of Access to Adequate Housing in Terms of Section 184(3) of the Constitution.

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.

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.

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.

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.

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.

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.

Reproductive Health Care: A Focus on Sexually Transmitted Diseases and Reproductive Tract and Infections.

This article briefly examines the definition of reproductive health care, the nature of the services that should be provided in relation to sexually transmitted diseases (STDs) and reproductive tract infections (RTls) as well as some of the particular barriers that women face in gaining access to the right.

Do Children Need Lawyers in the Children's Court?

A study by Prof Noel Zaal on how to achieve effective representation for children in civil proceedings which arise in terms of the (now repealed) Child Care Act 74 of 1983. It dealt with the question as to when children should be entitled to a representative/child advocate in court.

Western Constitutionalism and African Political Culture

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.

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).

Speech: Panel on 'Dealing with the Past'

Speech by Prof Kader Aamal, MP, Minister of water Affairs and Forestry. Panel on "Dealing with the past" the South African Conference on Truth and Reconciliation, organized by IDASA, Vineyard Hotel.

Language Rights in the New Constitution

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

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.

Raising Ideas for the Creation of a Juvenile Justice System for South Africa

A paper prepare for the 'Children in Trouble with the Law' conference organised by the Community Law Centre, UWC.

Resource Allocation: Land and Human Rights In a New South Africa.

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.

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.

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

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

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

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.

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?

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.

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

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.

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

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.