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Speculumjuris 2007 Part 1.Pdf SPECULUM JURIS VOLUME 21 PART 1 2007 ARTICLES “Law and Transformative Justice in Post-Apartheid South Africa”: A Conference to Celebrate the 90th Anniversary of the University of Fort Hare – by Professor Patrick C Osode......................................... 1 Transformative Adjudication in Post-Apartheid South Africa – Taking Stock after a Decade – by Dikgang Moseneke ..................................................... 2 The Horizontal Application of Human Rights Norms – by Johan Froneman......................................................... 13 Post-1994 Administrative Law in South Africa: The Constitution, the Promotion of Administrative Justice Act 3 of 2000 and the Common Law – by Clive Plasket.... 25 Towards a Transformative Adjudication of Socio-Economic Rights – by Sandra Liebenberg............... 41 Judges, Politics and the Separation of Powers – by Francois Venter.......................................................... 60 Judicial Review and the Transformation of South African Jurisprudence with Specific Reference to African Customary Law – by D D Ndima ....................................... 75 From “Repugnancy” to “Bill Of Rights”: African Customary Law and Human Rights in Lesotho and South Africa – by Laurence Juma...................................... 88 The Equality Act: Enhancing the Capacity of the Law to Generate Social Change for the Promotion of Gender Equality – by Nomthandazo Ntlama................................... 113 The National Director of Public Prosecutions in South Africa: Independent Boss or Party Politician? – by Lovell Fernandez........................................................ 129 iii “Law and Transformative Justice in Post-Apartheid South Africa”: A Conference to Celebrate the 90th Anniversary of the University of Fort Hare Professor Patrick C Osode Managing Editor and Conference Convenor This conference issue of Speculum Juris contains a special collection of papers presented at a three-day conference on the broad theme of “Law and Transform- ative Justice in Post-Apartheid South Africa” hosted in East London by the Nelson R Mandela School of Law in October 2006. Organised as part of the 90th anniversary celebration of the University of Fort Hare, the conference brought together leading members of the judiciary, legal academia, law enforcement and human-rights institutions in a rigorous interrogation of South Africa’s post- apartheid Constitution and its impact on society, with particular focus on the numerous landmark changes it has spawned in the corpus of South African law since 1994. Inevitably, the conference created an opportunity for progressive legal intelligentsia to reflect on the progress made by the South African constitu- tional state in the last 12 years and to explore the challenges that remain in order for South Africa to fully realise its dreams of becoming a society in which all citizens live in freedom, dignity, equality and security. More specifically, the conference presentations, including the special keynote address delivered by Deputy Chief Justice Dikgang Moseneke, addressed, inter alia, the following questions: • To what extent have the Constitution and the law healed or facilitated the healing of the divisions of the past and established a society based on dem- ocratic values, social justice and fundamental human rights? • Have the Constitution and the law laid a sufficiently strong foundation for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law? • To what extent have the Constitution and the law improved the quality of life, or laid down the machinery for the improvement of the quality of life, of all citizens and thereby freed the potential of each citizen? • To what extent have the Constitution and the law built a united and demo- cratic South Africa able to take its rightful place as a sovereign state in the family of nations? On behalf of the Editorial Board, I hope this special conference issue will make a distinctly enlightening and stimulating read. 1 Transformative Adjudication in Post-Apartheid South Africa – Taking Stock after a Decade Dikgang Moseneke Deputy Chief Justice of the Republic of South Africa 1 SALUTATIONS AND INTRODUCTION At the outset, I must first thank the University of Fort Hare, and in particular Nelson R Mandela School of Law, and even more pointedly, Professor Patrick C Osode, the Executive Dean, Faculty of Law, for the kind invitation to speak at this auspicious conference. I bring you greetings from our Chief Justice, Pius Langa, and also from all my colleagues at the Constitutional Court. I pause to thank Judge President Somyalo, not only for his kind introductory remarks about me, but also in keeping with the good tradition of yesteryear which compels a visitor to commence a visit by paying respects to the resident chief or ruler. I also wish to extend my warm greetings to many colleagues on the bench here present, from the bar, in academia and other fields in pursuit of justice in our land. Many of you have been in tireless pursuit of a just society and it is hearten- ing to see you here present as part of a critical stock-take of what we have set for ourselves to do, what we have done, and what is open to us to achieve in the future. It is a matter of very special significance that the University of Fort Hare hosts this conference. Although we are now in East London, I know that in effect I am at Fort Hare University. That means that I have to take my shoes off because I stand on holy ground. I stand on the shrine of the struggle for a free, open and just and caring society. I do not exaggerate when I say that, of all places of higher learning that come to mind in this country, Fort Hare University is his- torically the ultimate gestation site of the high notions of a just society so amply enunciated and entrenched in our Constitution. It is ironic that around the cut and thrust of the First World War, a tiny black elite and a few white liberals brought into being the first tertiary education facility to train and educate Africans, who then were, in effect, in bondage. Another paradox was that the facility was open to students from across the African con- tinent. In this way, bonds with liberation movements on the rest of the continent were made possible. Parents and relatives of many of its new charges had to go to war for the British Empire to stall the advance of fascism and to protect democratic rights and freedoms which they did not enjoy in their native lands. The unintended but invaluable aftermath of the First and Second World Wars was growing opposition to colonial tutelage, racial segregation and land dispos- session. By the end of the Second World War, the young but restless activists at Fort Hare were well set to challenge, and declare intellectually bankrupt, morally depraved notions of racial superiority and exclusion. Scholar after scholar (if not activist after activist) from Fort Hare University re-asserted the innate and equal 2 TRANSFORMATIVE ADJUDICATION IN POST-APARTHEID SOUTH AFRICA 3 worth of all human beings. They argued that there is only one race – the human race – and that all within a common polity were entitled to equal and unqualified franchise, self-determination and a just social order. It is therefore not inappropriate to acknowledge at a conference such as the present the towering contribution of some of the graduates of Fort Hare Univers- ity to our protracted struggle for freedom, renewal and a good social order. Many of its graduates have enjoyed prominent careers in fields as diverse as politics, medicine, literature and art. A remarkable collection of names from the 1940s to the 1950s comes to mind. A few names make the point: Dr WF Nkomo, Anton Mziwakhe Limbede, Godfrey Pitje, AP Mda, Nthato Motlana, Oliver Tambo, Robert Sobukwe, Govan Mbeki, Selby Ngendane, Mangosutho Buthelezi, Robert Mugabe, Ntsu Mokhele, Dennis Brutus, ZK Matthews, Can Themba, Seretse Khama, Joe Matthews, Chris Hani, and last, but certainly not least, Nelson Rolihlahla Mandela, whose name your law faculty proudly bears.1 As I conclude my modest tribute to this great institution, it would be less than gracious not to recognise the crop of the 1970s to the 1990s who have inherited and honoured a proud tradition of struggle and selfless dedication to advancing the birth of a just society. 2 SCOPE OF THE ADDRESS It is thus a singular honour to have been asked to deliver the keynote address at this conference. Rightly so, the repertoire of conference papers is most im- pressive. It boasts several very specific papers by distinguished jurists. Their contributions are bound to drill deeper into their areas of focus than I would hope to do in a wide-ranging paper. I recognise that I have limited time and space. What I have chosen to do is to restate, by way of background, the promise of our Constitution. Thereafter, I shall examine, albeit briefly, the overarching challenge of the judiciary in a shifting paradigm necessitated by our constitutional tran- sition. Immediately thereafter, I shall seek to take stock of selected areas of judicial intervention since the inception of constitutional democracy. I shall do so with a view to making the broader thesis that what the courts have pro- nounced on over the past twelve years is admirable and often breaks new ground. However, it is perhaps what the courts have not decided that may very well pose the difficult questions on how well our courts have advanced the transformative enterprise commanded by the Constitution. It seems therefore that the brief stock-take I hope to accomplish will be less to do with counting beans already in the calabash, and more to do with raising questions about why other beans are not in the container. There appears to be a crescendo of social-justice claims, be they claims for redistributive fairness, or around crime and the protection of life and limb, that appear to have not enjoyed adequate or any judicial attention over the past twelve years.
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