The Dignity Jurisprudence of the Constitutional Court of South Africa
Cases and Materials, Volumes I & II
Publication Year: 2013
Published by: Fordham University Press
Title Page, Copyright
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This book presents the Dignity Jurisprudence of South Africa’s Constitutional Courtfrom to . To that end, this book contains four critical essays, forty sum-maries of what we believe to be the most important dignity-related legal cases (theycapture the facts and legal history of each), and reduced versions of the most impor-The Dignity Jurisprudence of South Africa may well be one of the most sophis-...
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We want to thank the National Research Foundation through Drucilla Cornell’sChair of Customary Law, Indigenous Values, and the Dignity Jurisprudence. Wewant to thank all of the justices of the Constitutional Court who each in his or herown unique way has helped to create the most significant Dignity Jurisprudence inthe world today. We are also in their debt for the time, energy, and innumerable...
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The Dignity Jurisprudence of South Africa lies at the very heart of the substantivelegal revolution; an ongoing revolution that demands the transformation of SouthAfrica from a horrifically unjust society to one that aspires to justice for all of its cit-izens. Section of the Constitution explicitly states that the Republic of SouthAfrica is founded on “human dignity, the achievement of equality and the advance-...
Equality and Nondiscrimination:Some Analytical Thoughts
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A lack of linguistic and other analysis has made the debate on equality and nondis-crimination in the law more complex, and the neglect of such analysis has causedconfusion. This article deals with a limited and preliminary, but vital, aspect ofequality and nondiscrimination as constitutional and legal concepts and rights. Itdoes not deal with wider aspects of constitutional equality jurisprudence; particularly...
The Legal Nature of the South AfricanConstitutional Revolution
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The dramatic history of the birth of a remarkable constitution is well documented.1My overview of its gestation and birth must perforce be deceptively brief. The SouthAfrican common law is not, historically, Anglo-Saxon but rather from the time ofEuropean settlement in , Roman-Dutch. The received Roman-Dutch law wasthe common law of Holland prior to the latter’s codification in the first decade of...
Dignity Jurisprudence:Building a New Law on Earth
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South African dignity jurisprudence is part of a revolution under way in constitu-tional thought. The revolution revolves around the guarantee of human dignity asthe constitutive right underlying modern legal systems. Article of Germany’s postwar Basic Law makes human dignity an inviolable right. The UniversalDeclaration of Human Rights establishes the inherent human dignity of all persons...
The Architecture of Dignity
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As essentially a court lawyer, with no formal training in philosophy, I dare to takemy stand on Kant because his imperatives encapsulate for me, by way of contrastand in the rationally most compelling manner that I have been able to discover,what was so obscene about apartheid. It serves as a constant reminder of our veryugly recent past. As a reforming Constitution, it is right that human dignity should...
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S v. Makwanyane and Another () SA (CC)This case, one of the first to be heard by the Constitutional Court, concerned theconstitutionality of the death penalty. In terms of section ()(a) of the CriminalProcedure Act of the death penalty was a competent sentence for a convic-tion of murder. However, no executions had taken place in South Africa since ....
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A full bench of the Cape Supreme Court (now the Western Cape High Court) con-solidated five discrete cases in which six convicted juveniles were sentenced to receivea “moderate correction” of a number of strokes with a light cane. At the time of eachtrial, and prior to the inception of the Interim Constitution, juvenile whipping wasa competent sentence in terms of section of the Criminal Procedure Act of...
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Ferreira v. Levin NO and Others; Vryenhoek and Others v. Powell NO and Others This case concerned the constitutionality of provisions in the Companies Act of that pertained to the winding up of companies. Section provided that themaster of the High Court may summon and examine any person mentioned in sub-section as to their affairs with the company that is being wound up. Section...
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Bernstein and Others v. Bester and Others NNO () SA (CC)Following one of the largest financial collapses in South African history, the CapeProvincial Division of the High Court ordered, in terms of sections and ofthe Companies Act, a commission of enquiry into the affairs of certain companies inthe Tollgate Group. Mr. Bernstein and other partners and employees of a partnership...
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Soobramoney v. Minister of Health, Kwazulu-Natal () SA (CC)Mr. Soobramoney was a forty-one-year-old diabetic suffering from ischaemic heartdisease, cerebro-vascular disease, and irreversible chronic renal failure. While nocure existed for his illnesses, his life could be prolonged by means of regular renaldialysis. This treatment was readily available in private hospitals. However, it was...
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Pretoria City Council v. Walker () SA (CC)Mr. Walker, a resident of Constantia Park, a formerly white suburb of Pretoria,challenged the constitutionality of certain actions of the Pretoria City Council. Thecouncil was established after the amalgamation of a number of former black town-ships (Atteridgeville and Mamelodi) and Pretoria. For at the time of the litigation,...
National Coalition for Gay and LesbianEquality
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National Coalition for Gay and Lesbian Equality and Another v. Minister of JusticeThe National Coalition for Gay and Lesbian Equality, a voluntary association ofSouth African gay, lesbian, bisexual, and transgendered people and organizations,brought an application to the High Court challenging both common law and statu-tory proscriptions that criminalized private, consensual, anal sex between men. The...
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August and Another v. Electoral Commission and Others () SA (CC)Neither the Final Constitution nor the Electoral Act disenfranchised prisoners.However, the Electoral Act disqualified persons from voting on four grounds.In particular, it denied the exercise of the franchise to persons who were “detainedin a prison after being convicted and sentenced without the option of a fine in...
National Coalition for Gay and LesbianEquality
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National Coalition for Gay and Lesbian Equality and Others v. Minister of HomeSection () of the Aliens Control Act of allowed for the spouse of a per-manent resident of South Africa to be issued an immigration permit. It did not pro-vide the same benefit for same-sex life partners of permanent residents. Theapplicants claimed that this differentiation amounted to unfair discrimination against...
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Dawood and Another v. Minister of Home Affairs and Others; Shalabi and Another v.Minister of Home Affairs and Others; Thomas and Another v. Minister of Home AffairsIn terms of section ()(b) of the Aliens Control Act of , a foreign spouseof a South African citizen or permanent resident, who was in South Africa andwished to secure an immigration permit, had to possess, already, a valid temporary...
stian Education South Africa
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Christian Education South Africa v. Minister of Education () SA (CC)Section of the South African Schools Act of (SASA) prohibits the use ofcorporal punishment in schools. The appellant, a voluntary association, was anumbrella body of independent Christian schools in South Africa that catered tosome , pupils. The appellant contended that the blanket ban on administering...
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Hoffmann v. South African Airways () SA (CC)Mr. Hoffmann applied for a position as a cabin attendant with South AfricanAirways (SAA). After successfully making it through the four-stage selectionprocess, he was considered a suitable candidate. His employment, however, wassubject to a medical examination. That battery of tests encompassed an HIV...
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Government of the Republic of South Africa and Others v. Grootboom and Others This case emanates from the tragic housing shortage created by and inherited fromapartheid South Africa. Mrs. Grootboom and most of the other respondents hadpreviously lived in squalid conditions in an informal settlement known as Wallace-dene. Wallacedene residents had no water, sewerage, or refuse removal services. Only...
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Moseneke and Others v. The Master and Another () SA (CC)Intestate estates are ordinarily administered by the master of the High Court. How-ever, section ()(a) of the Black Administration Act of prohibited themaster from administering the intestate estates of black people. That task wasassigned, by regulation () to the act, to the local magistrate. The applicants in this...
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Mr. Dodo was convicted of murder in the Eastern Cape High Court. Section ()of the Criminal Law Amendment Act of obliges the High Court to sen-tence an accused convicted of offences specified in the act to life imprisonment.However, under section ()(a), if the court is satisfied that “substantial and com-pelling circumstances” exist that justify the imposition of a lesser sentence, it may...
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S v. Mamabolo (E TV and Others Intervening) () SA (CC)In August Eugene Terreblanche—the well-known leader of the AfrikanerNationalist organization, the Afrikaner Weerstandbeweging—was granted bail pend-ing an appeal of his conviction for attempted murder by Justice Els in the TransvaalHigh Court. An oﬃcial in the Department of Correctional Services—Mr. Russell...
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Mohamed and Another v. President of the Republic of South Africa and Others (Societyfor the Abolition of the Death Penalty in South Africa and Another Intervening) At the time the Constitutional Court heard the matter, the appellant had alreadybeen deported from South Africa and was on trial in a US federal district court oncapital charges related to the bombings of US embassies in Nairobi, Kenya and Dar...
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Booysen and Others v. Minister of Home Affairs and Another () SA (CC)Section ()(a) of the Aliens Control Act of requires an applicant for awork permit to submit the application from outside the country and then only toenter the country once the permit is issued. Section ()(b) provides that workpermits are to be issued to spouses of South Africans only if they do not or are not...
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Carmichele v. Minister of Safety and Security and Another (Centre for Applied LegalIn April , Alix Carmichele (Carmichele) was assaulted by François Coetzeewhile 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 indecentassault and, at the time of his attack on the applicant, was facing a charge of rape for...
Investigating Directorate of SeriousEconomic Offences
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Investigating Directorate of Serious Economic Offences and Others v. Hyundai MotorDistributors (Pty) Ltd. and Others; In Re Hyundai Motor Distributors (Pty) Ltd. andOthers v. Smit NO and Others () SA (CC)The National Prosecuting Authority Act of provides for the search andseizure of property by an investigating director in the oﬃce of the National Director...
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Prince v. President, Cape Law Society, and Others () SA (CC)One of the admission requirements of the Attorney’s Act of is that a personbe “fit and proper.” As part of the process for admission as an attorney, the appellantapplied 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 that...
Islamic Unity Convention
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Islamic Unity Convention v. Independent Broadcasting Authority and Others ()Clause (a) of the Code of Conduct for Broadcasting Services (the Code) contained inSchedule to the Independent Broadcasting Authority Act of provided thatbroadcasting licensees shall . . . not broadcast any material which is indecent orobscene or offensive to public morals or offensive to the religious convictions...
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Khumalo and Others v. Holomisa () SA (CC)Bantu Holomisa, the leader of the United Democratic Movement, sued the SundayWorld over an article that alleged that Mr. Holomisa was involved with a gang ofbank robbers and under police investigation for his involvement.In the High Court, the Sunday World averred, by way of exception, that because...
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Du Toit and Another v. Minister of Welfare and Population Development and Others(Lesbian and Gay Equality Project as Amicus Curiae) () SA (CC)The applicants were a lesbian couple who had been in a life partnership since .They wished to adopt jointly two children. However, the relevant adoption legislationonly allowed for heterosexual couples to adopt children jointly. The second applicant...
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S v. Jordan and Others (Sex Workers Education and Advocacy Task Force and Others asThe applicants—a brothel owner, a salaried employee of the brothel, and a prosti-tute—pleaded guilty in the Magistrates’ Court to contravening the Sexual OffencesAct of . Section ()(aA) of that act, made it an offence to have sex forreward. However, it only criminalized the act of prostitution and the maintaining of...
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Khosa and Others v. Minister of Social Development and Others; Mahlaule and Othersv. Minister of Social Development and Others () SA (CC)Section (c) of the Social Assistance Act of reserved social grants solely foraged South African citizens. Sections (b)(ii) and B(b)(ii) of the act, as amendedby the Welfare Laws Amendment Act of , reserved child-support grants...
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Daniels v. Campbell NO and Others () SA (CC)Section of the Intestate Succession Act of confers certain rights of inher-itance on a surviving spouse whose wife or husband died intestate. Section () ofthe Maintenance of Surviving Spouses Act of similarly confers on a survivingspouse the right to a claim against the estate of the deceased spouse for his or her...
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Kaunda and Others v. President of the Republic of South Africa and Others ()Sixty-nine South African citizens—very likely mercenaries—were detained in Zim-babwe on various charges. Two days after the applicants were arrested in March, fifteen men, the majority of whom were South African, were detained inEquatorial Guinea. They too were accused of being mercenaries and plotting a coup...
Jaftha and Van Rooyen
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Jaftha v. Schoeman and Others; Van Rooyen v. Stoltz and Others () SA (CC)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 debtsof R and R respectively. The sales in execution, which took place on the sameday, were undertaken in terms of sections ()(a) and of the Magistrates’ Court...
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De Reuck v. Director of Public Prosecutions, Witwatersrand Local Division ()Section () of the Films and Publications Act of prohibits the creation,production, importation, or possession of child pornography. The appellant, a filmproducer, was charged in the regional Magistrate’s Court with the offence of posses-sion of child pornography. He challenged, in terms of breadth and vagueness, the...
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Bhe and Others v. Magistrate, Khayelitsha, and Others (Commission for Gender Equalityas Amicus Curiae); Shibi v. Sithole and Others; South African Human Rights Commis-sion and Another v. President of the Republic of South Africa and Another () SAAccording to section () of the Black Administration Act of , and theregulations promulgated under that section, particularly regulation (e), the estates...
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Volks NO v. Robinson and Others () BCLR (CC)Mrs. Robinson was in a permanent life partnership with Mr. Schandling. Theyshared a home, a car, and many mutual friends. She was financially dependent onhim and they were regarded by all who knew them as a couple. When Mr. Schandlingdied, Mrs. Robinson argued that she should have a claim for maintenance against...
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K v. Minister of Safety and Security () SA (CC)The applicant launched an action seeking damages in delict from the minister ofsafety and security for the harm she suffered as a result of being raped and assaultedin the early hours of March . Her assailants were three uniformed and on-duty police sergeants. Ms. K had had an argument with a boyfriend with whom she...
Minister of Home Affairs and Lesbian and GayEquality Project
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Minister of Home Affairs v. Fourie (Doctors for Life International and Others, AmiciCuriae); Lesbian and Gay Equality Project and Others v. Minister of Home AffairsThe first applicants—Ms. Fourie and Ms. Bonthuys—contended that the commonlaw definition of marriage in South Africa as the “union of one man with onewoman” excludes homosexual couples and unfairly discriminates against them in...
Van der Merwe
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Van Der Merwe v. Road Accident Fund and Another (Women’s Legal Centre Trust asOn October , , Vanessa Van der Merwe’s husband intentionally ran her overwith a car; then reversed and ran over her again. Van der Merwe claimed both pat-rimonial damages—primarily medical expenses—and nonpatrimonial damages forpain and suffering, from the Road Accident Fund (RAF). The RAF is a statutory...
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This case concerned a claim for damages arising out of allegedly defamatory state-ments made by the applicant, Mr. David Dikoko, a municipal councilor. The audi-tor-general summoned the applicant to appear before the North West ProvincialStanding Accounts Committee (the Standing Committee) to provide an explanationfor certain unpaid cell-phone accounts. During the hearing, Dikoko made a state-...
South African Broadcasting Corp.
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South African Broadcasting Corp. Ltd. v. National Director of Public Prosecutions In Schabir Shaik was found guilty by the Durban High Court of being in acorrupt relationship with then Deputy President Jacob Zuma. Shaik appealed hisconviction and sentence to the Supreme Court of Appeal. Some three weeks beforethe hearing, the South African Broadcasting Corporation (SABC) applied for per-...
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The resolution of this matter turned on a constitutional challenge to a time limitationclause in a short-term insurance contract. Clauses of this type prevent an insuredclaimant from instituting legal action if summons is not served within the timelimit prescribed by the time limitation clause. Barkhuizen, the plaintiff, insured hisnew BMW with a syndicate of Lloyds Underwriters. The time limitation clause in...
Mec for Education
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Mec for Education: Kwa Zulu-Natal, Thulani Cele: School Liaison Oﬃcer, Anne Martin:Principal of Durban Girls’ High School, Fiona Knight: Chairperson of the GoverningBody of Durban Girls’ High School v. Navaneethum Pillay, Governing Body Foundation,Natal Tamil Vedic Society Trust, Freedom of Expression Institute () BCLR (CC)A pupil at Durban Girls High School, Sunali Pillay, pierced her nose and inserted a...
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Occupiers of Olivia Road, Berea Township and Another v. City of Johannesburg andThe case arose as a challenge to an eviction order obtained by the City of Johannes-burg (the City) against more than four hundred occupiers of two buildings in theinner city of Johannesburg (the occupiers). The City had found that the two buildingswere “unsafe” and “unhealthy” in terms of section ()(b) of the National Building...
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NM and Others v. Smith and Others () SA (CC); () BCLR In New Africa Books published an authorized biography of well-known politi-cian 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. The women had partici-...
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Masiya v. Director of Public Prosecutions Pretoria (The State) and Another () SAMr. Masiya was charged in the Regional Court with anally raping a nine-year-oldgirl. At the time, the common-law definition of rape was limited to vaginal penetra-tion by a penis. Masiya was therefore charged with indecent assault. However, thepresiding magistrate called for argument on whether the Constitution required the...
Page Count: 1184
Publication Year: 2013
Series Title: Just Ideas