Department of Public Law

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Access to justice for non-citizens : a constitutional analysis
(Stellenbosch : Stellenbosch University, 2014-04) Matshakaile, Thabani Nkosiyapha; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The rights entrenched in the Bill of Rights in South Africa’s final Constitution are, with a few exceptions, guaranteed to citizens and non-citizens alike. South Africa has seen an influx of migrants, asylum seekers and refugees since 1994, and this migratory movement has posed significant challenges to the post-apartheid legal order. This thesis is concerned with the State’s implementation of its constitutional obligations to protect and guarantee the constitutional rights of everyone within the borders of South Africa. It is important that these constitutional obligations do not remain mere aspirations but should translate into reality. Most non-citizens living in South Africa face numerous barriers to accessing justice and the processes that could enable them to realise their rights. The thesis examines the concept of “access to justice” and investigates a number of obstacles encountered by different categories of non-citizens – such as refugees, asylum seekers and documented and undocumented migrants – in trying to access justice and to realise their rights. Against this background, arrest, detention and deportation under the Immigration Act and Refugees Act are examined because these processes have often been abused by State officials to prevent non-citizens from accessing the rights and protections guaranteed in these Acts and the Constitution, and to frustrate the implementation of court orders vindicating the rights of non-citizens. The application of the Immigration and Refugees Acts is discussed through the lens of sections 12(1), 33, 34 and 35(2) of the Constitution which ensure that arrest, detention and deportation are done in a lawful and procedurally fair manner, as opposed to the arbitrariness that most non-citizens experience on a daily basis. Secondly, the thesis also examines access to justice for non-citizens in the context of xenophobia and bias based crimes. The State has in the past failed to respond in a coordinated and timely fashion in the face of violent manifestations of xenophobia. Against this background, the State’s obligation to protect non-citizens from violence from either public or private sources in terms of section 12(1)(c) of the Constitution is discussed and analysed. The role, accessibility and effectiveness of Equality Courts are also examined in light of the Promotion of Equality and Prevention of Unfair Discrimination Act and the cases that were brought before them emanating from xenophobic incidents. The thesis concludes with proposals on areas which require better implementation of existing laws; and areas in which legislative reform is needed.
Consenting to objectifying treatment? Human dignity and individual freedom
(Stellenbosch : Stellenbosch University, 2012-03) Fick, Sarah Johanna; Botha, Henk; Stellenbosch University. Faculty of Law. Dept.of Public Law.
ENGLISH ABSTRACT: The purpose of this study was to determine whether an individual can and/or should be allowed to consent to objectifying treatment. This necessitated the determination of the meaning of dignity, the meaning of freedom and the relationship between dignity and freedom. It was found that both the right not to be objectified and the right to consent to objectification could be found within human dignity. This is due to the broad definition of dignity in terms of which dignity has two, sometimes contradicting, components. One component safeguards autonomy and the right to choose, which supports consent to objectification, whereas the other promotes individual self-worth by prohibiting objectifying treatment. By investigating the meaning of freedom it was found that freedom as a constitutional value, and possibly also a free-standing constitutional right, could incorporate the right to consent to objectifying treatment. Three possible solutions to this tension between human dignity and freedom were identified and critically analysed. The first was that an individual cannot and should not be allowed to consent to objectification. This solution is primarily based on the notion that dignity is supreme to freedom and that freedom should yield to communitarian dignity. Furthermore, it is contended that consent to objectification is often invalid due to economic coercion and undue influence. The second possible solution was that, although an individual might not be able to validly consent to objectifying treatment, such consent should still be allowed under certain circumstances. The example of invalid consent due to economic coercion introduced in the previous solution was examined in relation to prostitution. The contention regarding this approach is that, since our government is unable to fulfil the socio-economic needs of those who consent due to economic coercion, such consent should be allowed and strictly regulated. The third possible approach was that circumstances do exist in which individuals can give valid consent to objectification and that in these circumstances they should be allowed to do so. In this solution the grounds of the first approach is criticised by contending, for example, that dignity is not supreme to freedom, that a plural society should allow these type of choices and that consent to objectification is already allowed in some instances. The results of this study were that, although there are situations in which genuine consent is not possible, it can be given under certain circumstances. An individual who cannot give genuine consent to objectification should not be allowed to do so, unless transitional measures dictate otherwise. However, an individual who is capable of giving valid consent to objectification should be allowed to do so. Finally, regardless of whether such consent is genuine or not, strict regulation thereof is required.
Constitutionalising copyright : a principled normative theory for transformative copyright adjudication
(Stellenbosch : Stellenbosch University, 2023-03) Shay, Richard Michael; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: This dissertation investigates South African copyright law from a constitutional vantage point, specifically the role of adjudicators in effecting transformation of this realm of statutory law. Copyright law in South Africa long predates the advent of the Constitution of the Republic of South Africa, 1996, and the Copyright Act 98 of 1978 has seen sparse revision since its initial promulgation. While the constitutional mode of adjudication requires substantive reasoning and value-based interpretation to facilitate the transformation of all law under the single-system-of-law principle, this modality has yet to permeate the copyright context. The formalistic mode of reasoning employed in copyright adjudication arguably perpetuates an independent normative sphere in which property and trade looms large, accompanied by an array of interpretive canons and conventions that are a product of the erstwhile conservative legal culture that characterised South African legal interpretation prior to the constitutional era. Ronald Dworkin’s theory of Law as Integrity is discussed as a candidate reading strategy for courts engaged in transformative interpretation of South African law. Dworkin’s interpretive model of constructive interpretation is found compatible with the constitutional mandate to adopt a value-based strategy intent on “promot[ing] the spirit, purport and object of the Bill of Rights, as section 39(2) instructs. Furthermore, Dworkin’s dignity-based theory comports with the South African iterations of the fundamental triumvirate of “[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms”, entrenched in section 1(a) and reinforced by section 39(1). Likewise, the Constitutional Court jurisprudence on the question of direct horizontal application of the rights in the Bill of Rights could be read to suggest that Dworkin’s normative approach may assist in defining the scope and ambit of duties between private parties, notably when the legal relationship is mediated by copyright law. Dworkin’s view of law as fidelity to the mandate of dignity through interpretation is ported to the copyright setting by relying on the taxonomical theory of intellectual property propounded by Robert Merges, comprising the trichotomy of justificatory foundations, midlevel principles, and practical doctrine. These concepts are reformulated to reflect a normatively responsive, principled account of adjudication in the South African situation.
The constitutionality of religious observances in South African public schools
(Stellenbosch : Stellenbosch University, 2016-12) Van Schalkwyk, Cecile; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law
ENGLISH ABSTRACT : The right to freedom of religion is one of the oldest of the internationally recognised freedoms and is entrenched in section 15(1) of the Constitution of the Republic of South Africa, 1996 (“Constitution”). It is the hallmark of an open and democratic society and provides everyone with the right to practise their religion in the public sphere and to manifest their beliefs by way of religious dress, teaching, or the conducting of religious observances. Section 15(2) of the Constitution makes specific provision for religious observances to be conducted at state and state-aided institutions provided that (a) those observances follow rules made by the appropriate public authorities, (b) they are conducted on an equitable basis, and (c) attendance at them is free and voluntary. The Constitution has created a peculiar tension with the inclusion of section 15(2). On the one hand, it allows for the practice of religion in the public sphere, while on the other hand guaranteeing the right to religious freedom and freedom from religious coercion. In South Africa, religious observances are often conducted in the public school system. Public schools make provision for religious observances like prayer, worship, or the reading and interpretation of religious texts, while some schools even identify themselves as having a particular religious character or religious ethos. The South African Schools Act 84 of 1997 (“Schools Act”) delegates the power to determine rules on religious observances in public schools to the governing body of the school. In a country with a diverse citizenry it is often difficult for governing bodies to formulate rules that afford all learners an equitable right to religious observances, while being free from any religious coercion. What, from one perspective, would constitute a school community’s legitimate practice of their constitutionally guaranteed right to religion, might, from another, amount to a limitation of an individual learner’s right to be free to choose and practise his own religion or abstain from religious observances at all. The object of this study is to determine how the requirements for religious observances in state and state-aided institutions, as stipulated in section 15(2) of the Constitution and reiterated in section 7 of the Schools Act, must be interpreted within the context of public schools, to strike a constitutionally appropriate balance between the powers of school governing bodies and the right of learners to be free from religious coercion.
The courts, national security and the free flow of information
(Stellenbosch : Stellenbosch University, 2020-03) Ramages, Justin Ray; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: National Security and the free flow of information are both vital to the preservation of South Africa’s open democracy. However, the two are often in tension, as the protection of National Security requires secrecy. This places it at odds with the rights to access, receive and impart information. In adjudicating this tension, the courts are hampered by the lack of a clear definition of National Security. The imprecision of this term could result in state abuse, or in leaving important security interests unprotected. Against this background, the thesis examines the constitutional rights to access, receive and impart information in view of the values that underlie them. It also explores the meaning of National Security with reference to legislation, case law, academic literature, and international and comparative law. On the basis of this study, it proposes a definition of National Security, which identifies the security interests that are to be preserved and the kinds of threats against which they must be safeguarded. Next, the thesis examines the tension between openness and secrecy within the judicial process in cases involving conflicts between the free flow of information and National Security. To that end, it considers the requirements of the constitutional principle of Open Justice with reference to case law. It examines legislative provisions which limit Open Justice in cases in which the disclosure of sensitive information in open court could compromise South Africa’s National Security, analyses the constitutionality of those measures, and proposes legislative amendments which would remedy the constitutional defects. Finally, the thesis examines the capacity of the judiciary to adjudicate, in a principled manner, conflicts between the free flow of information and National Security, in view of debates about courts’ institutional capacity and the perceived need for judicial deference in areas in which the executive, and not the judiciary, has special expertise. It also asks whether the procedures used to adjudicate conflicts between the free flow of information and National Security enable courts to decide these cases in a principled manner, and to avoid overstepping the bounds of the judicial function.
Dignity in Death : a critical analysis of whether the right to human dignity serves as appropriate justification for the legalisation of assisted death
(Stellenbosch : University of Stellenbosch, 2014-03) Strohwald, Annemarie; Botha, Henk; University of Stellenbosch. Faculty of Law. Dept. of Public Law
ENGLISH ABSTRACT : No English abstract available.
Freedom of assembly and democracy in South Africa
(Stellenbosch : Stellenbosch University, 2019-04) Hanekom, Eduhahn Luke; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT : In apartheid-era South Africa protests were a mechanism through which the dispossessed and marginalised could challenge their exclusion. These characteristically confrontational and violent protests influenced the framework adopted to regulate demonstrations during the democratic transition and in the new constitutional dispensation, namely the Regulation of Gatherings Act 205 of 1993 (“Gatherings Act”). In the new constitutional dispensation the right to assemble and demonstrate is guaranteed in section 17 of the Constitution. South Africa has been labelled the “protest capital of the world”. Protests are a regular occurrence and are a vital part of democratic participation and dissent. This is because the people, on whose will government is based, need an avenue outside of existing institutions to form and express their views and show their dissent. The question arises as to how certain types of dissent fit within different conceptions of democracy. This thesis attempts to determine whether and to what extent different understandings of democracy allow us to make sense of the nature and importance of protest action. The thesis examines the regulatory framework of the Gatherings Act, with reference to its implementation by the executive and state administration. It also examines case law in which section 17 of the Constitution has been interpreted. It argues that some of the provisions of the Gatherings Act, the implementation of the Act by the executive, and some court judgments reveal an impoverished understanding of democracy and unduly limit the rights of the citizenry to participate and dissent. The thesis examines various conceptions of democracy. It argues that, while the institutional models of representative, participatory and deliberative democracy may help to illuminate certain aspects of freedom of assembly, they do not adequately address the inherent tensions in democracy which are illustrated in contentious and disruptive protests. Representative models of democracy tend to offer a restrictive view which assumes that the will of the people is identical to the decisions of representatives, and minimises the role of participation beyond and between elections. Participatory and deliberative models of democracy attempt to eliminate tensions and conflict by creating a platform for a possible rational consensus. These models place a great deal of reliance on the power of representatives to establish spaces for democratic interaction. Disruptive protests are extra-institutional forms of democratic participation. This type of extra-institutional politics can be linked to the model of agonistic pluralism. Rather than attempting to eliminate and exclude conflict from democratic thought, it recognises that these conflicts are fundamental to democracy. The thesis argues that this model could help enable an understanding of protest action which recognises the centrality of protests to democracy and transformation under the South African Constitution.
The justifications and limits of affirmative action : a jurisprudential and legal critique
(Stellenbosch : Stellenbosch University, 2011-12) Nel, Erin Leigh; Botha, Henk; Dupper, O.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: Affirmative action with its wide array of manifestations, ranging from BEE (Black Economic Empowerment) to special measures within the Public Procurement sector, was intended to aid South Africa in redressing past patterns of disadvantage and realising a more equal society and economic dispensation. Whether the present policy has achieved this goal or is capable of doing so has been the subject of much controversy. The aim of my thesis is to rethink the justifications and limits of the current race-based affirmative action policy of South Africa in view of current debates, in which both its potential as a tool for eradicating inequality at the individual and systemic levels and the constitutionality and viability of different policy options are contested. In my thesis, a range of conceptual and theoretical tools are employed which are not only derived from the constitutional law literature, but also from jurisprudence, moral philosophy and political theory. Compensatory and distributive theories of justice are analysed and juxtaposed to each other, as are substantive and remedial conceptions of constitutional equality and recognition-based and redistributive notions of politics. Throughout, my focus is on the perspectives that these theories can bring to bear on the justifications and limits of affirmative action. It is also asked whether a re-crafted affirmative action policy would not be better able to reach the intended goals. With this end in mind, alternative affirmative action policies are analysed, namely, a class-based affirmative action policy which uses socio-economic standing as a measure for identifying beneficiaries and an affirmative action policy based on Sen‘s capability approach. The thesis also contains a comparative analysis of the affirmative action policies of Malaysia, Brazil and India. The aim of this study is to ascertain whether there are any valuable lessons to be learnt from their respective successes and failures. It is argued that affirmative action as currently applied has an assortment of negative consequences, ranging from stigmatization of beneficiaries as incapable individuals, the perpetuation of racial division and a detrimental impact on the South African economy as a result of a loss in efficiency. These issues could possibly be better addressed if the specific beneficiaries of affirmative action are rethought. In this regard, it is suggested that, if a class-based affirmative action policy is thought to be too radical, South Africa should follow India‘s example of excluding the ―creamy layer‖ from the current affirmative action beneficiaries. This should ensure that affirmative action benefits are not continually distributed and redistributed to the same individuals, whilst also ensuring that a wider range of individuals do in fact benefit. However, it must be borne in mind that transformation will always be stifled if educational resources and policies do not keep up with social and political policies.
The potential of meaningful engagement in realising socio-economic rights: Addressing quality concerns
(2019-04) Mahomedy, Sameera; Liebenberg, Sandra; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT : The advent of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) was a major milestone for South Africa in terms of redressing the atrocities of apartheid. While this has resulted in major developments, remnants of apartheid are still present and can be seen in the continuation of vast socio-economic inequalities. Access to housing and education still remains elusive to many South Africans, as indicated by the recent service delivery and higher education protests. Developing effective mechanisms for realising these rights is thus a high priority, including in the context of socio-economic rights litigation and adjudication. The doctrine of meaningful engagement developed by the Constitutional Court in housing and education rights cases offers a potentially innovative method for government, communities and other stakeholders to pursue the realisation of socio-economic rights. However, the potential of this participatory approach to socio-economic rights realisation remains contested, and its efficacy in practice has not yet been determined. A key challenge to its efficacy in realising the normative commitments of socioeconomic rights concerns the quality of the engagement that occurs between organs of state and various stakeholders. In light of the above, this thesis investigates the role that the quality of meaningful engagement plays in enhancing its efficacy as a mechanism to realise socio-economic rights. The thesis examines the justifications posited for using meaningful engagement as well as the importance of quality in achieving these justifications. Evaluative criteria for assessing the quality of engagement are developed. In addition to evaluating the quality of meaningful engagement in South Africa’s housing and education rights jurisprudence, the thesis examines meaningful engagement in an extra-judicial context, focusing on the #FeesMustFall Movement. The thesis concludes by making recommendations on how the quality of meaningful engagement could be improved, drawing on diverse theoretical literature pertaining to participatory democracy and critical theory.
Poverty as a ground of unfair discrimination in post-apartheid South Africa
(Stellenbosch : Stellenbosch University, 2022-03) Basson, Gideon Burnett; Liebenberg, Sandra; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: Since the advent of constitutional democracy, the project of transformative constitutionalism has had limited success in addressing structural poverty and inequality in post-apartheid South Africa. The stubborn nature of poverty and inequality is a result of four-hundred-odd years of politically calculated spatial ghettoisation, infrastructural neglect, land dispossessions, privileged citizenship, elite capture, perpetual wealth hoarding and unequal access to socio-economic goods. As a result, impoverished people continue to experience pervasive forms of discrimination such as violence, abhorrent prejudices, political marginalisation and structural barriers to accessing basic needs. Despite this reality, poverty is not recognised as an entrenched prohibited ground of discrimination. This study develops a comprehensive interpretative framework to conceptualise poverty as a ground of discrimination under the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. It does so specifically by developing a transformative conception of substantive equality that should undergird impoverished people’s right to equality and non-discrimination. It draws from the work of the global justice critical social theorist Nancy Fraser as well as South African critical legal scholars to postulate an appropriate framework for conceptualising poverty as a ground of unfair discrimination under current capitalist conditions within the South African constitutional regime. The study employs a critical methodology to examine the implications of a reimagined transformative conception of substantive equality for the adjudication and litigation of poverty as a ground of unfair discrimination.
Refugees’ access to socio-sconomic rights: Favourable treatment for the protection of human dignity
(Stellenbosch : Stellenbosch University, 2018-12) Kavuro, Callixte; Botha, Henk; Stellenbosch University. Faculty of Law. Department of Public Law.
ENGLISH ABSTRACT: The thesis deals with the question whether and to what extent refugees and asylumseekers are entitled to socio-economic rights and benefits. This is a controversial question, which is complicated by the co-existence of different bodies of law which apply to the treatment of non-citizens, in general, and refugees and asylum-seekers, in particular. On the one hand, South Africa has acceded to international refugee treaties and incorporated these treaties into its legal system through the Refugees Act 130 of 1998 (as amended) (―Refugees Act‖). This Act provides that refugees are entitled to all rights in the Bill of Rights, except those rights that are expressly reserved for citizens. Sections 26 and 27 of the Constitution of the Republic of South Africa, 1996 provide that ―everyone‖ has the right of access to adequate housing, and access to health care services, sufficient food and water, and social security. This seems to indicate that refugees and asylum-seekers are entitled to the socioeconomic rights enshrined in the Constitution. The Refugees Act, read through the lens of these constitutional provisions, signals South Africa‘s intention to offer effective protection to refugees and asylum-seekers, to respond to their suffering and to restore their self-reliance, participation, and agency. It does so, inter alia, by extending to them the right to have access to subsidised socio-economic goods and services. On the other hand, refugees and asylum-seekers are, in practice, excluded from certain socio-economic rights. This exclusion stems from a number of factors. First, they are treated as temporary residents in terms of the Immigration Act 13 of 2002. For this reason, the twin principles of self-sufficiency and exclusivity are often applied to them. In terms of these principles, non-citizens are generally admitted into South Africa on the condition that they are self-supportive and self-reliant. Moreover, they are precluded from accessing socio-economic programmes designed to support citizens who are vulnerable to poverty. Secondly, legislation conferring socioeconomic rights and benefits often restricts those rights to citizens and permanent residents. The legislation is thus not aligned with the Refugees Act. Thirdly, the Convention Relating to the Status of Refugees, 1951 (―the Geneva Refugee Convention‖) provides, in certain respects, for the same treatment of refugees as accorded to non-citizens in the same circumstances as refugees, or as accorded to non-citizens generally. Fourthly, the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 (―the African Refugee Convention‖) requires a host state to alleviate refugees‘ misery and suffering as well as to offer them opportunities to achieve a better life and future. The thesis criticises the idea that refugees and asylum-seekers are entitled to socio-economic rights on the basis of the standard of the same treatment accorded to non-citizens. This standard is problematic, in so far as there is no other group of non-citizens whose circumstances correspond to those of refugees and asylumseekers. Moreover, the standard legitimises the application of the twin principles of exclusivity and self-sufficiency, as contemplated by immigration law, to refugees and asylum-seekers. The thesis criticises the exclusionary approach on the basis of emerging theories, norms, standards and practices, as emanating from international refugee law, human rights law, constitutional law, domestic refugee law and foreign and international jurisprudence. It examines the vulnerability of refugees, and argues that the rights flowing from refugee status demand special and differentiated treatment from that accorded to non-citizens generally. The Refugees Act was specifically adopted to exempt refugees and asylum-seekers from the emphasis, in immigration law, on exclusion and self-reliance, and to afford them special, favourable or differentiated treatment to ensure the protection of their well-being, health and dignity. For that reason, refugee principles should be given priority over immigration principles. The thesis examines refugees and asylum-seekers‘ entitlement to socio-economic rights through the prism of the constitutional rights and values of human dignity and equality, and with reference to the standards of same treatment and favourable treatment, as used in the Geneva Refugee Convention . It argues, first, that the right and value of human dignity requires that all human beings should be in a position to live their lives in accordance with the ends that they freely chose, or as autonomous agents who have the ability to define their own destiny. No-one should be reduced to a mere object of state power, or be left without the resources needed to pursue reasonable choices or to meet their own needs. Given the unique position and vulnerability of refugees and asylum-seekers, the state is under both a negative obligation to desist from conduct that would interfere with the exercise of their rights, and a positive obligation to create conditions in which they can participate in economic and social life. Secondly, the thesis draws on the distinction between formal and substantive equality, and argues that the rights of refugees and asylum seekers should be read through the prism of substantive equality. This could help enable an approach which recognises their vulnerability, and affords them differentiated and favourable treatment. The thesis focuses on three rights: the right of access to public relief and assistance, healthcare and adequate housing. A detailed analysis is offered of the extent to which refugees and asylum-seekers are given these rights, or are excluded from their protection. The national laws granting and regulating these rights are examined, in view of refugee law, international human rights, the South African Constitution, and foreign law. To the extent that these laws exclude refugees and asylum-seekers from socio-economic rights and benefits, the thesis analyses the constitutionality of these exclusions. Recommendations are also made for the amendment of certain distributive laws, to harmonise them with the Constitution and the Refugees Act. These laws include the Housing Act 107 of 1997, the National Health Act 61 of 2003, the Social Assistance Act 13 of 2004, and related policies and strategies.

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