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Appointments to South Africa's Constitutional Court Since 1994
Durham Research Online Deposited in DRO: 15 July 2015 Version of attached le: Accepted Version Peer-review status of attached le: Peer-reviewed Citation for published item: Johnson, Rachel E. (2014) 'Women as a sign of the new? Appointments to the South Africa's Constitutional Court since 1994.', Politics gender., 10 (4). pp. 595-621. Further information on publisher's website: http://dx.doi.org/10.1017/S1743923X14000439 Publisher's copyright statement: c Copyright The Women and Politics Research Section of the American 2014. This paper has been published in a revised form, subsequent to editorial input by Cambridge University Press in 'Politics gender' (10: 4 (2014) 595-621) http://journals.cambridge.org/action/displayJournal?jid=PAG Additional information: Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in DRO • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full DRO policy for further details. Durham University Library, Stockton Road, Durham DH1 3LY, United Kingdom Tel : +44 (0)191 334 3042 | Fax : +44 (0)191 334 2971 https://dro.dur.ac.uk Rachel E. Johnson, Politics & Gender, Vol. 10, Issue 4 (2014), pp 595-621. Women as a Sign of the New? Appointments to South Africa’s Constitutional Court since 1994. -
The Struggle for the Rule of Law in South Africa
NYLS Law Review Vols. 22-63 (1976-2019) Volume 60 Issue 1 Twenty Years of South African Constitutionalism: Constitutional Rights, Article 5 Judicial Independence and the Transition to Democracy January 2016 The Struggle for the Rule of Law in South Africa STEPHEN ELLMANN Martin Professor of Law at New York Law School Follow this and additional works at: https://digitalcommons.nyls.edu/nyls_law_review Part of the Constitutional Law Commons Recommended Citation STEPHEN ELLMANN, The Struggle for the Rule of Law in South Africa, 60 N.Y.L. SCH. L. REV. (2015-2016). This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Law Review by an authorized editor of DigitalCommons@NYLS. NEW YORK LAW SCHOOL LAW REVIEW VOLUME 60 | 2015/16 VOLUME 60 | 2015/16 Stephen Ellmann The Struggle for the Rule of Law in South Africa 60 N.Y.L. Sch. L. Rev. 57 (2015–2016) ABOUT THE AUTHOR: Stephen Ellmann is Martin Professor of Law at New York Law School. The author thanks the other presenters, commentators, and attenders of the “Courts Against Corruption” panel, on November 16, 2014, for their insights. www.nylslawreview.com 57 THE STRUGGLE FOR THE RULE OF LAW IN SOUTH AFRICA NEW YORK LAW SCHOOL LAW REVIEW VOLUME 60 | 2015/16 I. INTRODUCTION The blight of apartheid was partly its horrendous discrimination, but also its lawlessness. South Africa was lawless in the bluntest sense, as its rulers maintained their power with the help of death squads and torturers.1 But it was also lawless, or at least unlawful, in a broader and more pervasive way: the rule of law did not hold in South Africa. -
Founding Provisions
Chapter 13 Founding Provisions James Fowkes 13.1 Introduction: A Structural Approach 13.2 The Preamble (a) Role and interpretative significance (b) Founders' intentions? (c) Judicial usage: breaking with the past (d) Content besides transformation (e) Relationship to FC s 1 13.3 Founding Values as Descriptive Principles: Understanding the Role of FC s 1 (a) Problems in the case law for an account of FC s 1 (i) Is FC s 1 merely of subsidiary interpretative significance, or does it apply more directly? (ii) The blurring of FC s 1 and other provisions (iii) Sporadic and ad hoc use of FC s 1 (b) The legal effect of FC s 1: founding values as descriptive principles (i) FC s 1(c) as a source of obligations: Reconciling Modderklip and NICRO (ii) FC s 1(c) and the legality principle: Reconciling Pharmaceutical Manufacturers and NICRO (iii) Stand-alone enforcement? Reconciling NICRO, Modderklip, the legality cases and UDM (2) (iv) Making sense of the reconciliation I: FC s 1 values as principles (v) Redundancy and super-entrenchment (vi) Making sense of the reconciliation II: FC s 1 values as descriptive principles 13.4 Application and Relationship to Other Constitutional Mechanisms (a) Application (i) A norm of higher status? FC s 1's relationship to the rest of the Constitution (ii) FC s 1's relationship to law outside the Constitution (iii) Horizontal application (b) FC s 1 and constitutional amendments (i) The distinction between internal and external inconsistency with FC s 1, and the relationship between them (ii) Constitutional amendments -
New Chief Justice and Onstitutional Court Justices
JUDICIARY TH I now come to Justice Albie Sachs. What’s to say that hasn’t been President of this court in August 1997 and, in November 2001, Deputy 5 WORLD BAR CONFERENCE said? Chief Justice. He became Chief Justice and head of this court with Justice Sachs has written extensively on culture, gender rights and effect from 1 June 2005. In his four years as Chief Justice he has had the environment. [His] … contribution to the artwork in the court is to deal with impossible challenges to the judiciary. He has done so, in well-documented. our view, with remarkable dignity and strength of resolve in the face He has variously said: of adversity. ‘I heard they’d caught the guy who’d put the bomb in my car. He has said, extra-curially: To this day I don’t know if it was true or not, but I said, ‘’Fantastic, ‘Africa simply cannot afford to … bear more genocides, territorial I’d love to meet him. I’d love to have a human, face-to-face contact wars and war-lordism; the fostering, promotion and use of child The New Legal Challenges: with him.’’ To humanise the relationship. The idea of being almost soldiers to fight in wars designed to satisfy the ambitions of grown blotted out by someone who doesn’t know me, who’s only seen me in men; the wanton abuse and rape perpetrated on women and children; a photograph as an object to be eliminated was unbearable. And I just schemes that result in hunger, starvation and extreme poverty. -
AG3368-F26-001-Jpeg.Pdf
Adrian Friedman Constitutional Court Oral History Project 18th January 2012 Int This is an interview with Adrian Friedman and it’s the 18th of January, 2012. Adrian, thank you so much for agreeing to participate in the Constitutional Court Oral History Project. AF My pleasure. Int I wondered if you could talk about early childhood in terms of family and intellectual development, as well as a sense of key events that may have formulated your interest in the legal trajectory as well as issues around social justice? AF Okay. I grew up in Johannesburg, I went to a government primary school, just near where we lived, and then a Jewish day school for high school. Then I took a year off after that and studied in Cape Town for a while and then I did my law degree in Johannesburg. I guess from a social justice…as far as your question about social justice is concerned, my father is a political analyst, and when I was growing up was a journalist, and he is very interested in, and has always had a strong sense of social justice which he passed onto all of his children. My mother is a trained attorney, who now acts in the human rights and public interest law sector. So she also has had a long history of being involved in the law and also in social justice issues. So I just think…I don’t think either of them went out of their way to indoctrinate me in that sense or to try and persuade me to go in one or other direction. -
1 Why Does the Constitution Matter?
WHY DOES THE CONSTITUTION MATTER? PUBLIC LECTURE SERIES HUMAN SCIENCES RESEARCH COUNCIL Justice Sandile Ngcobo GALLAGHER ESTATE JOHNNESBURG 30 JUNE 2016 1 INTRODUCTION It is a great honour and privilege to deliver this public lecture.1 I am quite grateful for this opportunity to reflect on some of the issues that affect our constitutional democracy and, in particular, to share some of my thoughts on the Constitution. I am indebted to the Human Sciences Research Council for inviting me to deliver this public lecture. I sincerely mean it, despite the disruptive effect it has had on my quiet and private retirement life. I was privileged enough to have been afforded the opportunity to apply the Constitution during my tenure as a member of the Constitutional Court and to participate in constructing our foundational jurisprudence on constitutional law. It was both a formidable and complex task. It was complex partly because when I joined the Court, the Constitution was about three years old and partly because there was little or no precedent to guide the process. We were virtually writing on a clean slate. It was a formidable task because we were constructing the foundational jurisprudence that would guide the future development of our constitutional law. We had to construct a sound and solid foundational jurisprudence that would withstand the test of time. But of course the process of building our constitutional jurisprudence is a work in progress. As the Western Cape High Court recently observed, “twenty years of democracy is a relatively short time to have developed a certainty concerning the contours of constitutional democracy.”2 Our Constitution is still relatively new and the government that we have created is still an experiment. -
Separation of Powers and the Political Question Doctrine in South Africa: a Comparative Analysis
SEPARATION OF POWERS AND THE POLITICAL QUESTION DOCTRINE IN SOUTH AFRICA: A COMPARATIVE ANALYSIS. By MTENDEWEKA OWEN MHANGO Submitted in accordance with the requirements for the degree of DOCTOR OF LAWS at the UNIVERSITY OF SOUTH AFRICA SUPERVISOR: PROFESSOR MATHEW CHUKS OKPALUBA JANUARY 2018 1 DECLARATION Name: Mtendeweka Owen Mhango_____________________________ Student number: 61270385_________________________________________________ Degree: Doctor of Laws_____________________________________________ Exact wording of the title of the dissertation or thesis as appearing on the copies submitted for examination: Separation of Powers and the Political Question Doctrine in South Africa: A Comparative Analysis. I declare that the above dissertation/thesis is my own work and that all the sources that I have used or quoted have been indicated and acknowledged by means of complete references. ________________________ _____________________ SIGNATURE DATE 2 Abstract Section 34 of the Constitution of the Republic of South Africa, 1996 outlines the scope of judicial authority as encompassing the resolution of any dispute that can be resolved by the application of law. The courts in South Africa have developed several justiciability canons that restrain when courts may adjudicate disputes, such as standing, mootness, ripeness, and the prevention of advisory opinions. These justiciability canons emanate from constitutional considerations such as respect for separation of powers and the proper role and scope of judicial review in a constitutional democracy. This study focuses on another justiciability canon - the political question doctrine. This doctrine arises from the principle of separation of powers and, in the main, provides that certain questions of constitutional law are allocated to the discretion of the elected branches of government for resolution. -
Chapter 1 Making the Road.Fm
INTRODUCTION HAPTER C 1 Michael Cosser, Narnia Bohler-Muller & Gary Pienaar 1Introduction 1.1 Making the road by walking The Constitution of the Republic of South Africa, the final draft of which was forged over a two-year period between 1994 and 1996, assumed a particular profile in the body politic in 2016. Following the release of the Public Protector’s 2014 report on improvements to President Zuma’s Nkandla residence,1 the Constitutional Court in March 2016 declared binding her findings and recommendations about the need for the President to repay public monies spent on non-security upgrades to his residence.2 Such high-profile cases, however, can distract us from the importance of the Constitution in shaping the lives of ordinary people. In catapulting the Constitution into the limelight, the ‘Nkandla judgement’, as it is known colloquially, has created renewed interest in what meaning the Constitution has for South Africans in 2018 and beyond. The initial impetus for this book came from a public address by former Chief Justice Sandile Ngcobo. Delivered on 30 June 2016 and entitled ‘Why does the Constitution matter?’, his address began with an almost throwaway comment: that he was ‘privileged enough … to participate in constructing our foundational jurisprudence on constitutional law.’3 Ngcobo went on to say that the process of building a constitutional 1 Public Protector South Africa ‘Secure in comfort’ http://www.pprotect.org/library/ investigation_report/2013-14/Final Report 19 March 2014 pdf (accessed 23 May 2017). 2 Economic Freedom Fighters v Speaker of the National Assembly and Others 2016 (3) SA 580 (CC). -
Winter Graduation PROGRAMME
Winter Graduation PROGRAMME FACULTY OF LAW 21 JUNE 2021 UNIVERSITY SENIOR OFFICERS Chancellor: Dean, Faculty of Law: Advocate DB Ntsebeza SC, (BA) (SA), BProc (SA), LLB (Unitra) (WSU), LLM Doctor N Lubisi, B Juris (UFH), LLB (UFH), Advanced Certificate in Labour (International Law) (UCT) Law (Unisa), LLM in Labour Law (UFH), LLD (UFH) Vice-Chancellor and Principal: Dean, Faculty of Education: Professor S Buhlungu, BA History and Political Science (UNITRA), BA Hons Professor VS Mncube, STD (Eshowe College); BA, BA (Hons) & Bed African Studies (UCT), MA Industrial Sociology (WITS), PhD Sociology (WITS) (University of Zululand); CLAIT (ICT) and IBTII (ICT) (Bourneville TVET College, UK); MEd, PGCR & PhD (University of Birmingham, UK) Chairperson of Council: Bishop I Abrahams, BTh (Rhodes University), BA Hons (UCT), Postgraduate Dean, Faculty of Management and Commerce: Certificate of Special Studies, CSS (Berkeley, US), MTh (UKZN)Cum Laude Doctor N Wayi, BCom (Rhodes), MCom (UP), PhD (North West) Deputy Vice-Chancellor Academic Administration: Acting Dean, Faculty of Health Sciences: Professor R Vithal, BA (Hons), UHDE (UDW); BEd (UN); MPhil (Cambridge); Professor L van Niekerk, B.A, B. Theology, B.A. Hons Criminology, Hons in dr.scient (Aalborg) Psych, (Northwest University); Postgrad Dip in Ergonomics (Rhodes); M.A. Counselling Psychology (UJ); M. Sport and Exercise Psychology (KULeuven); Deputy Vice-Chancellor Institutional Support: Phd Psychology (UJ) Doctor O van Heerden, BA Sociology & International Relations, BA Hons International -
Assessing the Performance of South Africa's Constitution Chapter 5. The
Assessing the Performance of South Africa’s Constitution Chapter 5. The Performance of the Judiciary Linette Du Toit © 2016 International Institute for Democracy and Electoral Assistance This is an unedited extract from a report for International IDEA by the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, a Centre of the University of Johannesburg. An abridged version of the report is available for download as an International IDEA Discussion Paper: <http://www.idea.int/resources/analysis/assessing-the-performance-of-the-south-african-constitution.cfm>. Chapter 5. The Performance of the Judiciary Linette Du Toit 5.1. Introduction The purpose of this chapter is to evaluate the performance of the Constitution in respect of the judiciary. In order to measure the performance of the Constitution in this regard, we have to consider the performance of the judiciary itself: whether it has been structurally and operationally transformed according to constitutional prescripts and whether it is fulfilling its constitutional purposes. While thin compliance with concrete goals are easily measurable, the achievement of these goals in a ‘thick’ sense, as well as abstract objectives are more complex and challenging to determine. We shall examine some of the problems of the design of judicial institutions in South Africa in the Constitution as well as the manner in which they have functioned in relation to key stress points which have arisen in the past 20 years. 5.2. Goals of the Constitution No feature of the South African state escaped the depredations of apartheid. The judiciary was no exception. On the one hand, the judiciary sought to cultivate an aura of independence and excellence. -
Felicia Kentridge LRC Oral History Project Interview 1: 14Th February 2006 Interview 2: 16Th February 2006 Interview 3: 22Nd February 2006
Felicia Kentridge LRC Oral History Project Interview 1: 14th February 2006 Interview 2: 16th February 2006 Interview 3: 22nd February 2006 Interview 1: FK: My parents were…lawyers and my mother was the first woman advocate in South Africa. Int:: Really… FK: Yes. And…she, she gave up because of Colonel Sellers. At least, I believe it was because of Colonel Sellers. Int: Colonel Sellers? FK: Well, he, he was very unpleasant about women joining the Bar and he, he objected to her being there and and the fact that my father, who was an attorney, could brief her. So, she accepted that. And she left the Bar but that was before I was born. And then when I was born, she went to America, as a Carnegie scholar and came back and wrote a book called “Women and Children in South Africa”, but it was not about Black women, it was about White women, and she at the age of 90 was sorry that it had been about Black women, that it had not been about Black women. And she screamed all my life at my father and at her, her pain. And she was a screaming mother. That was my impression of her. But my sister who was older than me, who was six years older than me, was really in her place. Int: You mean, as a mother? FK: Yes. Int: You…? FK: And then she died. But that was later on, at the age of 73. And my mother died at the age of 90. So, I am 75 and I am older than my sister and younger than my mother. -
| Justice Arthur Chaskalson |
| JUSTICE ARTHUR CHASKALSON | TOP THREE AWARDS • Honorary Membership of the New York City Bar, 1985 • Order of the Baobab (Gold), 2002 • Human Rights Award (Foundation for Freedom – Switzer- land), 1990 WHAT PEOPLE DO NOT KNOW He was a first-rate football player and was selected for the combined South African Universities football team in 1952. 38 |LEGENDS OF SOUTH AFRICAN SCIENCE| UNWAVERING TRANSPARENCY AT THE ESSENCE ...there was transparency in everything he did. He was a person of rock- solid integrity and morality. ... His core belief was that it was human beings South Africa is considered to have one of the best, if not the best, Con- who were really important in life – and therefore also in the law. He put stitutions in the world. And its custodian, the Constitutional Court, has as people at the centre of everything which he did. its justices some of the finest legal minds in the country. The Honourable Chief Justice Arthur Chaskalson played central roles in helping to draft and Chaskalson grew up in the 1930s and early 1940s “as a little white boy in a shape the Constitution and the establishment and promotion of the Con- middle-class home in an area where I met other little white boys and girls”. stitutional Court – long before becoming the President and then the Chief Discrimination against and segregation and marginalisation of black South Justice of this court. Africans were realities long before the formalisations of apartheid, and it is likely that these circumstances influenced his decision to become a lawyer Born in Johannesburg, Justice Chaskalson matriculated at Hilton College while he was still at school.