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The Dignity Jurisprudence of the Constitutional Court of South Africa

Cases and Materials, Volumes I & II

Drucilla Cornell, Stu Woolman, Sam Fuller, Jason Brickhill, Michael Bishop

Publication Year: 2013

Since the Second World War, dignity has increasingly been recognized as an important moral and legal value. Although important examples of dignity-based arguments can be found in western European and North American case law and legal theory, the dignity jurisprudence of the Constitutional Court of South African is widely considered to be the most sweeping in the world. In part, this is related to the unique provisions of the South African Constitution in areas such as socioeconomic rights and allowing dignity to be taken into the sphere of economic justice as well as that of human rights. This book brings together the first sixteen years of constitutional jurisprudence addressing the meaning, role, and reach of dignity in the law of South Africa as a multiracial democracy. The case law is coupled with analysis from a range of selected contributors. The book will therefore be a crucial source for anyone seeking to evaluate dignity, whether in law or in human life more broadly.

Published by: Fordham University Press

Title Page, Copyright

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pp. 1-8

Contents

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pp. ix-xii

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Preface

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pp. xiii-xiv

This book presents the Dignity Jurisprudence of South Africa’s Constitutional Court from 1995 to 2008. To that end, this book contains four critical essays, forty summaries of what we believe to be the most important dignity-related legal cases (they capture the facts and legal history of each), and reduced versions of the most important opinions in those cases. ...

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Acknowledgments

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pp. xv-xvi

We want to thank the National Research Foundation through Drucilla Cornell’s Chair of Customary Law, Indigenous Values, and the Dignity Jurisprudence. We want to thank all of the justices of the Constitutional Court who each in his or her own unique way has helped to create the most significant Dignity Jurisprudence in the world today. ...

Volume I

The Dignity Jurisprudence of South Africa

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pp. 1-2

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Introduction

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pp. 3-20

The Dignity Jurisprudence of South Africa lies at the very heart of the substantive legal revolution; an ongoing revolution that demands the transformation of South Africa from a horrifically unjust society to one that aspires to justice for all of its citizens. Section 1 of the Constitution explicitly states that the Republic of South Africa is founded on “human dignity, ...

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Equality and Nondiscrimination: Some Analytical Thoughts

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pp. 21-32

A lack of linguistic and other analysis has made the debate on equality and nondiscrimination in the law more complex, and the neglect of such analysis has caused confusion. This article deals with a limited and preliminary, but vital, aspect of equality and nondiscrimination as constitutional and legal concepts and rights. ...

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The Legal Nature of the South African Constitutional Revolution

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pp. 33-64

The dramatic history of the birth of a remarkable constitution is well documented.1 My overview of its gestation and birth must perforce be deceptively brief. The South African common law is not, historically, Anglo-Saxon but rather from the time of European settlement in 1652, Roman-Dutch. ...

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Dignity Jurisprudence: Building a New Law on Earth

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pp. 65-72

South African dignity jurisprudence is part of a revolution under way in constitutional thought. The revolution revolves around the guarantee of human dignity as the constitutive right underlying modern legal systems. Article 1 of Germany’s 1948 postwar Basic Law makes human dignity an inviolable right. ...

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The Architecture of Dignity

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pp. 73-124

South Africa boasts one of the world’s most developed bodies of dignity jurisprudence. Only the Federal Constitutional Court’s gloss on the meaning of dignity in Germany’s Basic Law can match the richness of our Constitutional Court’s account. ...

Notes

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pp. 125-170

Legal Cases (1995-2008)

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pp. 171-172

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Makwanyane

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pp. 173-228

This case, one of the first to be heard by the Constitutional Court, concerned the constitutionality of the death penalty. In terms of section 277(1)(a) of the Criminal Procedure Act 51 of 1977 the death penalty was a competent sentence for a conviction of murder. However, no executions had taken place in South Africa since 1989. ...

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Williams

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pp. 229-239

A full bench of the Cape Supreme Court (now the Western Cape High Court) consolidated five discrete cases in which six convicted juveniles were sentenced to receive a “moderate correction” of a number of strokes with a light cane. At the time of each trial, and prior to the inception of the Interim Constitution, ...

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Ferreira

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pp. 240-273

This case concerned the constitutionality of provisions in the Companies Act 61 of 1973 that pertained to the winding up of companies. Section 417 provided that the master of the High Court may summon and examine any person mentioned in subsection 1 as to their affairs with the company that is being wound up. ...

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Bernstein

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pp. 274-290

Following one of the largest financial collapses in South African history, the Cape Provincial Division of the High Court ordered, in terms of sections 417 and 418 of the Companies Act, a commission of enquiry into the affairs of certain companies in the Tollgate Group. ...

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Soobramoney

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pp. 291-298

Mr. Soobramoney was a forty-one-year-old diabetic suffering from ischaemic heart disease, cerebro-vascular disease, and irreversible chronic renal failure. While no cure existed for his illnesses, his life could be prolonged by means of regular renal dialysis. This treatment was readily available in private hospitals. ...

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Walker

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pp. 299-327

Mr. Walker, a resident of Constantia Park, a formerly white suburb of Pretoria, challenged the constitutionality of certain actions of the Pretoria City Council. The council was established after the amalgamation of a number of former black townships (Atteridgeville and Mamelodi) and Pretoria. ...

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National Coalition for Gay and Lesbian Equality [1999]

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pp. 328-352

The National Coalition for Gay and Lesbian Equality, a voluntary association of South African gay, lesbian, bisexual, and transgendered people and organizations, brought an application to the High Court challenging both common law and statutory proscriptions that criminalized private, consensual, anal sex between men. ...

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August

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pp. 353-359

Neither the Final Constitution nor the 1998 Electoral Act disenfranchised prisoners. However, the 1993 Electoral Act disqualified persons from voting on four grounds. In particular, it denied the exercise of the franchise to persons who were “detained in a prison after being convicted and sentenced without the option of a fine ...

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National Coalition for Gay and Lesbian Equality [2000]

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pp. 360-377

Section 25(5) of the Aliens Control Act 96 of 1991 allowed for the spouse of a permanent resident of South Africa to be issued an immigration permit. It did not provide the same benefit for same-sex life partners of permanent residents. The applicants claimed that this differentiation amounted to unfair discrimination against same-sex life partners of permanent residents. ...

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Dawood

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pp. 378-389

In terms of section 25(9)(b) of the Aliens Control Act 96 of 1991, a foreign spouse of a South African citizen or permanent resident, who was in South Africa and wished to secure an immigration permit, had to possess, already, a valid temporary residence permit. If the foreign spouse did not possess such a permit, then two consequences followed ...

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Christian Education South Africa

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pp. 390-405

Section 10 of the South African Schools Act 84 of 1996 (SASA) prohibits the use of corporal punishment in schools. The appellant, a voluntary association, was an umbrella body of 196 independent Christian schools in South Africa that catered to some 14,500 pupils. ...

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Hoffmann

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pp. 406-414

Mr. Hoffmann applied for a position as a cabin attendant with South African Airways (SAA). After successfully making it through the four-stage selection process, he was considered a suitable candidate. His employment, however, was subject to a medical examination. ...

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Grootboom

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pp. 415-430

This case emanates from the tragic housing shortage created by and inherited from apartheid South Africa. Mrs. Grootboom and most of the other respondents had previously lived in squalid conditions in an informal settlement known as Wallacedene. Wallacedene residents had no water, sewerage, or refuse removal services. ...

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Moseneke

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pp. 431-438

Intestate estates are ordinarily administered by the master of the High Court. However, section 27(3)(a) of the Black Administration Act 38 of 1927 prohibited the master from administering the intestate estates of black people. That task was assigned, by regulation 3(1) to the act, to the local magistrate. ...

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Dodo

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pp. 439-450

Mr. Dodo was convicted of murder in the Eastern Cape High Court. Section 51(1) of the Criminal Law Amendment Act 105 of 1997 obliges the High Court to sentence an accused convicted of offences specified in the act to life imprisonment. However, under section 51(3)(a), if the court is satisfied that “substantial and compelling circumstances” ...

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Mamabolo

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pp. 451-466

In August 2001 Eugene Terreblanche—the well-known leader of the Afrikaner Nationalist organization, the Afrikaner Weerstandbeweging—was granted bail pending an appeal of his conviction for attempted murder by Justice Els in the Transvaal High Court. An official in the Department of Correctional Services— ...

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Mohamed

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pp. 467-479

At the time the Constitutional Court heard the matter, the appellant had already been deported from South Africa and was on trial in a US federal district court on capital charges related to the bombings of US embassies in Nairobi, Kenya and Dar es Salaam, Tanzania in August 1998. ...

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Booysen

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pp. 480-482

Section 26(2)(a) of the Aliens Control Act 96 of 1991 requires an applicant for a work permit to submit the application from outside the country and then only to enter the country once the permit is issued. Section 26(3)(b) provides that work permits are to be issued to spouses of South Africans only if they do not or are not likely to pursue an occupation ...

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Carmichele

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pp. 483-501

In April 1995, Alix Carmichele (Carmichele) was assaulted by François Coetzee while staying at the house of a friend of hers in a secluded coastal village. Coetzee, who lived near Carmichele, already had convictions for housebreaking and indecent assault and, at the time of his attack on the applicant, was facing a charge of rape ...

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Investigating Directorate of Serious Economic Offences

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pp. 502-514

The National Prosecuting Authority Act 32 of 1998 provides for the search and seizure of property by an investigating director in the office of the National Director of Public Prosecutions, to facilitate the investigation of certain specified offences. Sections 28 and 29 deal with investigations and searches, respectively. ...

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Prince

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pp. 515-536

One of the admission requirements of the Attorney’s Act 53 of 1979 is that a person be “fit and proper.” As part of the process for admission as an attorney, the appellant applied to the Cape Law Society to have his contract of community service registered. The appellant, who was a practicing Rastafarian, disclosed to the Law Society ...

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Islamic Unity Convention

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pp. 537-547

The Islamic Unity Convention ran a community radio station that aired an interview with a historian and author who, during the interview, made statements denying that any Jews were gassed in concentration camps during World War II and suggested that the “myth of the Holocaust” was purely designed to legitimate the creation of the state of Israel. ...

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Khumalo

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pp. 548-558

Bantu Holomisa, the leader of the United Democratic Movement, sued the Sunday World over an article that alleged that Mr. Holomisa was involved with a gang of bank robbers and under police investigation for his involvement. ...

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Du Toit

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pp. 559-564

The applicants were a lesbian couple who had been in a life partnership since 1989. They wished to adopt jointly two children. However, the relevant adoption legislation only allowed for heterosexual couples to adopt children jointly. The second applicant alone therefore became the adoptive parent of the children. ...

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Jordan

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pp. 565-591

The applicants—a brothel owner, a salaried employee of the brothel, and a prostitute— pleaded guilty in the Magistrates’ Court to contravening the Sexual Offences Act 23 of 1957. Section 20(1)(aA) of that act, made it an offence to have sex for reward. However, it only criminalized the act of prostitution and the maintaining of a brothel. ...

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Khosa

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pp. 592-603

Section 3(c) of the Social Assistance Act 59 of 1992 reserved social grants solely for aged South African citizens. Sections 4(b)(ii) and 4B(b)(ii) of the act, as amended by the Welfare Laws Amendment Act 106 of 1997, reserved child-support grants and care-dependency grants for South African citizens only. ...

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Daniels

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pp. 604-623

Section I of the Intestate Succession Act 81 of 1987 confers certain rights of inheritance on a surviving spouse whose wife or husband died intestate. Section 2(1) of the Maintenance of Surviving Spouses Act 27 of 1990 similarly confers on a surviving spouse the right to a claim against the estate of the deceased spouse for his or her reasonable maintenance ...

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Kaunda

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pp. 624-652

Sixty-nine South African citizens—very likely mercenaries—were detained in Zimbabwe on various charges. Two days after the applicants were arrested in March 2004, fifteen men, the majority of whom were South African, were detained in Equatorial Guinea. They too were accused of being mercenaries and plotting a coup ...

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Jaftha and Van Rooyen

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pp. 653-665

The appellants in the two cases were both poor unemployed women whose houses, acquired with the help of a state subsidy, had been sold in execution to satisfy debts of R250 and R190 respectively. The sales in execution, which took place on the same day, were undertaken in terms of sections 66(1)(a) and 97 of the Magistrates’ Court Act 32 of 1944. ...

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De Reuck

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pp. 666-677

Section 27(1) of the Films and Publications Act 65 of 1996 prohibits the creation, production, importation, or possession of child pornography. The appellant, a film producer, was charged in the regional Magistrate’s Court with the offence of possession of child pornography. ...

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Bhe

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pp. 678-709

According to section 23(10) of the Black Administration Act 38 of 1927, and the regulations promulgated under that section, particularly regulation (e), the estates of Africans who died intestate were to be distributed according to “Black law and custom.” The Intestate Succession Act 81 of 1987 expressly excluded “African” estates ...

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Volks NO

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pp. 710-746

Mrs. Robinson was in a permanent life partnership with Mr. Schandling. They shared a home, a car, and many mutual friends. She was financially dependent on him and they were regarded by all who knew them as a couple. When Mr. Schandling died, Mrs. Robinson argued that she should have a claim for maintenance against his estate. ...

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K

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pp. 747-757

The applicant launched an action seeking damages in delict from the minister of safety and security for the harm she suffered as a result of being raped and assaulted in the early hours of 27 March 1999. Her assailants were three uniformed and on-duty police sergeants. ...

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Minister of Home Affairs and Lesbian and Gay Equality Project

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pp. 758-794

The first applicants—Ms. Fourie and Ms. Bonthuys—contended that the common law definition of marriage in South Africa as the “union of one man with one woman” excludes homosexual couples and unfairly discriminates against them in terms of section 9(3) of the Constitution. ...

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Van der Merwe

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pp. 795-806

On October 24, 1999, Vanessa Van der Merwe’s husband intentionally ran her over with a car; then reversed and ran over her again. Van der Merwe claimed both patrimonial damages—primarily medical expenses—and nonpatrimonial damages for pain and suffering, from the Road Accident Fund (RAF). ...

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Dikoko

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pp. 807-827

This case concerned a claim for damages arising out of allegedly defamatory statements made by the applicant, Mr. David Dikoko, a municipal councilor. The auditor- general summoned the applicant to appear before the North West Provincial Standing Accounts Committee (the Standing Committee) ...

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South African Broadcasting Corp.

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pp. 828-850

In 2005 Schabir Shaik was found guilty by the Durban High Court of being in a corrupt relationship with then Deputy President Jacob Zuma. Shaik appealed his conviction and sentence to the Supreme Court of Appeal. Some three weeks before the hearing, the South African Broadcasting Corporation (SABC) applied for permission to broadcast ...

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Barkhuizen

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pp. 851-885

The resolution of this matter turned on a constitutional challenge to a time limitation clause in a short-term insurance contract. Clauses of this type prevent an insured claimant from instituting legal action if summons is not served within the time limit prescribed by the time limitation clause. Barkhuizen, the plaintiff, insured his new BMW with a syndicate of Lloyds Underwriters. ...

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Mec for Education

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pp. 886-919

A pupil at Durban Girls High School, Sunali Pillay, pierced her nose and inserted a gold nose stud. The school told her to remove the stud because it contravened their dress code. The code banned virtually all jewelry. Sunali, supported by her mother, refused to remove the stud, on the grounds that it was part of her South Tamil culture and Hindu religion. ...

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Occupiers

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pp. 920-929

The case arose as a challenge to an eviction order obtained by the City of Johannesburg (the City) against more than four hundred occupiers of two buildings in the inner city of Johannesburg (the occupiers). The City had found that the two buildings were “unsafe” and “unhealthy” in terms of section 12(4)(b) of the National Building Regulations ...

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NM

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pp. 930-965

In 2002 New Africa Books published an authorized biography of well-known politician Patricia de Lille, authored by Charlene Smith. All three—New Africa Books, De Lille and Smith (the respondents)—were sued by three women (the applicants) whose HIV-positive status had been revealed in the book. ...

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Masiya

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pp. 966-984

Mr. Masiya was charged in the Regional Court with anally raping a nine-year-old girl. At the time, the common-law definition of rape was limited to vaginal penetration by a penis. Masiya was therefore charged with indecent assault. However, the presiding magistrate called for argument on whether the Constitution required the definition to be extended to include anal penetration. ...

Index of Cases

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pp. 985-990

Index

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pp. 991-996


E-ISBN-13: 9780823250301
Print-ISBN-13: 9780823250080
Print-ISBN-10: 0823250083

Page Count: 1184
Publication Year: 2013

Edition: Text
Series Title: Just Ideas

Research Areas

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Subject Headings

  • Constitutional law -- South Africa.
  • Respect for persons -- Law and legislation -- South Africa.
  • South Africa. Constitutional Court.
  • Jurisprudence -- South Africa.
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