HUMAN RIGHTS LAW (PBL634S) Course Outline 2006

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1 1 HUMAN RIGHTS LAW (PBL634S) Course Outline CONVENOR AND CONTACT DETAILS Course convenor: Dr Danwood M Chirwa Office Number: Kramer Law Building, Room No chirwad@law.uct.ac.za Tel: PRESENTATION AND ASSESSMENT Human Rights Law is presented in the second semester. Dr Danwood M Chirwa is the course convenor. Presentation of the course will take the form of seminars. Dr Chirwa will lead the discussions of most of the seminars. Some seminars will be conducted by guest lecturers. The last two seminars will be conducted by the participants. The structure of the course and its assessment will be as follows: The course will be taught in a series of 11 weekly seminars held on Wednesday evenings between 5 pm and 7pm (or at another mutually acceptable time). The Venue is Room 5G. The topics of the seminars are included in this outline. Participants are required to write two assignments over the course of the semester. Each participant will present the second assignment towards the end of the course. The two assignments will contribute a total of 40% to the final mark. Class attendance is compulsory. Class participation will count 10 % towards the final mark. An examination will be administered at the end of the course and will contribute 50% towards the final mark. Note: Amendments to the seminar topics and reading materials may be made during the course depending on legal developments in the field.

2 2 3 OBJECTIVES OF THE COURSE This course seeks to track the development of human rights jurisprudence in South Africa through the study of selected human rights topics. It seeks to provide students with an in-depth understanding of the South Africa Bill of Rights and the jurisprudence it has generated thus far. While the focus will be on the jurisprudence of the Constitutional Court, the jurisprudence of the High Courts and Supreme Court of Appeal will also be considered. More specifically, it will investigate the role of the Bill of Rights in transforming and reconstructing the South African Society in the new constitutional dispensation. The analysis of the Bill of Rights shall be conducted in an international and comparative perspective. 4 LEARNING OUTCOMES By the end of the course you should be able to demonstrate: an advanced understanding of the South African Bill of Rights and its jurisprudence; the ability to critically analyse the South African Bill of Rights and its jurisprudence in international and comparative perspectives; an adequate understanding of the transformative potential of the Bill of Rights; how the Bill of Rights can be used to protect marginalised groups; the ability to answer problem questions and write essays logically, coherently and concisely; and the ability to communicate clearly in writing and orally. 5 ACHIEVEMENT These learning outcomes will be achieved by students through: attending in lectures; reading reported cases, legislation, books and book chapters, articles and other relevant materials; writing assignments and examinations; participating in discussion in seminars; presenting assignments; and receiving specific and general feedback from lecturers aimed at fostering improvement.

3 3 6 SEMINAR TOPICS SEMINAR ONE: 8/10 August 2006 Adv. Johan De Vaal INTRODUCTION (WITH A SPECIAL FOCUS ON JUSTICIABILITY) NB: This and the following seminar will deal with introductory aspects of the Bill of Rights, namely the structure of human rights litigation, justiciability, interpretation and limitation. Students are expected to read the first seven chapters of I Currie & J de Vaal The Bill of Rights Handbook (2005). In Ferreira v Levin NO 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC), the South African Constitutional Court adopted an extremely broad approach to standing with regard to human rights suits. Has there been a change in this approach over the last few years. Has this approach facilitated public interest litigation? Has the Courts approach to ripeness, mootness been similarly progressive. If not why not? Ferreira v Levin NO 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) Lawyers for Human Rights v Minister of Home Affairs 2004 (4) 125 (CC) Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza 2001 (4) SA 1184 (SCA) Maluleke v MEC, Health and Welfare, Northern Province 1999 (4) SA 267 (T) JT Publishing v Minister of Safety and Security 1997 (3) SA 514 (CC) President of the Ordinary Court Martial NO v Freedom of Expression Institute 1999 (4) BCLR 682 (CC) Independent Electoral Commission v Langeberg Municipality 2001 (3) 925 (CC) I Currie & J de Vaal The Bill of Rights Handbook (2005) pp Cheryl Loots Standing, ripeness and mootness in Chaskalson et (eds) Constitutional Law of South Africa (2 nd ed, 2005). Chuks Okpaluba Justiciability and constitutional adjudication in the Commonwealth (2003) 66 THRHR 424.

4 4 SEMINAR TWO: 16 August 2006 Adv. Johan De Vaal INTRODUCTION CONTINUED WITH A SPECIAL FOCUS ON APPLICATION Question for discussion In Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC), the Court held It is already settled jurisprudence of this Court that a Court should not ordinarily decide a constitutional issue unless it is necessary to do so. This rule was abolished by the one system of law approach adopted by the Constitutional Court in Pharmaceutical Manufacturers Assoc of SA: In re Ex p President of the RSA 2000 (2) SA 674 (CC) from paragraph 44. See also the following statement in Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC) at para 32: Whether one can speak of a non-constitutional issue in a constitutional democracy where the Constitution is the supreme law and all law and conduct has to conform to the Constitution is not free from doubt. However, as Judges who swore to uphold the Constitution, we must accept that such distinction exists and try to make sense of that distinction. It is therefore necessary to determine whether the conduct of the SCA as evidenced by these cases fell foul of the Constitution. Will the one system of law approach lead to a greater impact of the Constitution on private law than the Mhlungu/Zantsi rule referred to the Constitutional Court in IslamicUnityConvention v Independent Broadcasting Authority? Discuss with particular reference to the influence of the Constitution on the law of contract. Afrox Health Care Bpk v Strydom 2002 (6) SA 21 (SCA). Camichele v Minister of Safety and Security 2001 (4) SA 938 (CC), 2001 BCLR (10) 995 (CC). NK v Minister of Safety and Security (CCT 52/04) (handed down on 13 June 2005). Du Plessis v De Klerk 1996 (3) SA 850 (CC);1996 (5) BCLR 658 (CC). Khumalo and others v Holomisa 2002 (5) SA 401 (CC); 2002 (8) BCLR 771) (CC). I Currie & J de Vaal The Bill of Rights Handbook (2005) pp ( esp. pp43 55, 67 78). G Lubbe Taking fundamental rights seriously: The Bill of Rights and its implications for the development of contract law (2004) 121 (2) South African Law Journal 359. Deeksha Bhana & Marius Peterse Towards a reconciliation of contract law and constitutional values: Briskey and Afrox revisited (2005) 122 (4) South African Law Journal 865. S Woolman Application in Chaskalson et al (eds) Constitutional Law of South Africa (2ed)

5 5 SEMINAR THREE: 23 August 2006 Dr Danwood Chirwa INTRODUCTION TO THE JUDICIAL PROTECTION OF SOCIO- ECONOMIC RIGHTS Consider the arguments for and against socio-economic rights and give an opinion as to whether you would recommend their inclusion in a constitution? Discuss various models of protecting socio-economic rights and their advantages and disadvantages. Re: Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744; 1996 (10) BCLR 1253 (CC) paras 77, 78 and 111. Aryeh Neier Social and economic rights: A critique (2006) 13(2) Human Rights Brief 1. Pieterse M Coming to terms with the judicial enforcement of socio-economic rights (2004) 20 South African Journal of Human Rights 383. S Liebenberg The protection of economic and social rights in domestic legal systems in A Eide et al (eds) Economic, social and cultural rights (2001) E Mureinik Beyond a charter of luxuries: Economic rights in the Constitution (1992) 8 South African Journal of Human Rights 464. P De Vos Pious wishes or directly enforceable human rights? Social and Economic rights in South Africa s 1996 Constitution (1997) 13 South African Journal of Human Rights 67. SEMINAR FOUR: 6 September 2006 Dr Danwood Chirwa SOCIO-ECONOMIC RIGHTS JURISPRUDENCE IN SOUTH AFRICA Identify the merits and demerits of the reasonableness standard adopted by the South African Constitutional Court as a benchmark for measuring compliance by the state with socio-economic rights obligations? Was the Constitutional Court right to reject the minimum core concept as a key benchmark for holding the state accountable for socio-economic rights? Modder East Squatters v Modderklip Boerdery (Pty) Ltd 2004 (8) BCLR 821 (SCA). Government of the RSA v Grootboom 2000 (11) BCLR Khosa and others v Minister of Social Development and others 2004 (6) BCLR 569. Minister of Health v Treatment Action Campaign (1) 2002 (10) BCLR 1033 (CC).

6 6 Soobramoney v Minister of Health 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC). Sandra Liebenberg South Africa s evolving jurisprudence on socio-economic rights: An effective tool in challenging poverty? (2002) 6 Law, Democracy and Development 159. D Bilchitz Toward a reasonable approach to the minimum core: Laying the foundations for future socio-economic rights jurisprudence (2003) 19 SAJHR 11. M Wesson Grootboom and beyond: Reassessing the socio-economic jurisprudence of the South African Constitutional Court (2004) 20 SAJHR 284. Liebenberg The interpretation of socio-economic rights in Chaskalson M (eds) et al Constitutional Law of South Africa SEMINAR FIVE: 8 September 2006 Dr Danwood Chirwa REMEDIES FOR HUMAN RIGHTS (ESPECIALLY SOCIO- ECONOMIC RIGHTS) Are the remedies that South African courts have granted in relation to socio-economic rights, been appropriate and effective? If not, what remedies would be appropriate and effective for these rights? Reading materials Fose v Minister of Safety and Security 1997 (3) SA 786 (CC). Government of the RSA v Grootboom 2000 (11) BCLR Minister of Health v Treatment Action Campaign (1) 2002 (10) BCLR Jayiya v MEC for Welfare, Eastern Cape 2004 (2) SA 611 (SCA); [2003] 2 ALL SA 223. Kate v MEC for the Department of Welfare, Eastern Cape 2005 (1) SA 141 (SE). Mia Swart Left out in the cold? Crafting constitutional remedies for the poorest of the poor (2005) SAJHR 215. Pieterse M Coming to terms with the judicial enforcement of socio-economic rights (2004) 20 South African Journal of Human Rights 383. SEMINAR SIX: 20 September 2006 Prof Pierre De Vos EQUALITY AND SOCIAL JUSTICE What is equality, protected in section 9 of the Constitution, supposed to achieve? In other words, what is or should its end-goal be?

7 7 Does the notion of substantive equality (with reference to the so called impact test endorsed by the Constitutional Court) place a positive duty on the state and other actors to take steps to achieve equality and if so, what are the limits of the required action? What is the relationship between the right to equality guaranteed in section 9 of the Constitution and the social and economic rights protected in section 26 and 27? Readings Pretoria City Council v Walker 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC). Khosa and Others v Minister of Social Development and Others 2004 (6) BCLR 569 (CC). Minister of Finance v Van Heerden 2004 (6) 121 (CC). Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) sa 1 (CC); 1999 (2) BCLR 139. Volks NO v Robinson and Others 2005 (5) BCLR 446. P de Vos Substantive equality after Grootboom: The emergence of socio and economic context as a guiding value in equality jurisprudence (2001) 52 Acta Juridica 52. Sandra Fredman Providing equality: Substantive equality and the positive duty to provide (2005) 21(2) South African Journal on Human Rights 163. SEMINAR SEVEN: 27 September 2006 Dr Danwood Chirwa JUST ADMINISTRATIVE ACTION Question for discussion What is the appropriate role of courts in regulating the exercise of public functions and powers in South Africa s post-apartheid and new constitutional order? Minister of Health and another v New Clicks SA (Pty) Ltd & others 2005 JOL (CC). Fedsure Life Assurance v Greater Transitional Metropolitan Council 1998 (12) BCLR 1458 (CC). President of the RSA v Sarfu 1999 (10) BCLR 1059 (CC). Pharmaceutical Manufacturers Association of SA v President of the RSA 2000 (3) BCLR 241 (CC). Logbro Properties CC v Bedderson NO and others 2003 (2) SA 460 (SCA). Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (7) 687 (CC).

8 8 Affordable Medicines Trust and Others v Minister of Health of RSA and Another 2005 (6) BCLR 529 (CC). Cora Hoexter The future of judicial review in South African administrative law (2000) 17 South African Law Journal 322. Kate O Regan Breaking ground: Some thoughts on the seismic shift in our administrative law (2004) 121 South Africa Law Journal 424. Hugh Corder Without deference, with respect: A response to Justice O Regan (2004) 20(4) South African Journal on Human Rights 438. SEMINAR EIGHT: 4 October 2006 Dr Danwood Chirwa THE CONSTITUTION AND SOCIAL ISSUES : What is the appropriate role for courts in a constitutional democracy in regulating the most private: The human body? How do courts balance public interest and private dignity? Prince v President, Cape Law Soc 2002 (2) SA 794 (CC) (2002 (1) SACR 431; 2002 (3) BCLR 231): Use of Marijuana S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) 2002 (6) SA 642 (CC) (2002 (2) SACR 499; 2002 (11) BCLR 1117): Sex workers Fourie and Bonthuys v The Minister of Home Affairs (SCA, 30 November 2004): gay marriage. Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC) (1996 (5) BCLR 609): pornography De Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2004 (1) SA 406 (CC) (2003 (12) BCLR 1333): pornography Wessel le Roux Sex work, the right to occupational freedom and the constitutional politics of recognition (2003) 120 (3) South African Law Journal 452. Pierre de Vos Freedom of religion v drag traffic control: the Rastafarian, the law, society and the right to smoke the holy weed (2001) 5(1) Law, Democracy and Development 58. Kerry Williams I do or we won t : Legalising same sex-marriage in South Africa (2004) 20(1) South African Journal on Human Rights 32. Lize Mills The virtual reality of child pornography (2003) 14(2) Stellenbosch Law Review 187.

9 9 SEMINAR NINE: 11 October 2006 Adv. Geoff Budlender RIGHT TO PROPERTY AND LAND REFORM Question for discussion Does section 25 of the South African Constitution and the manner in which it has been interpreted by South Africa courts thus far establish an appropriate formula to facilitate land reform in the South African context? Reading materials Mkontwana v Nelson Mandela Metropolitan Municipality and Another 2005 (1) SA 530 (CC). First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) (2002 (7) BCLR 702). Minister of Transport v Du Toit 2005 (1) SA 16 (SCA). A Classens Compensation for expropriation: The political and economic parameters of market value compensation (1993) 9 SAJHR 422. I Currie & J de Vaal The Bill of Rights Handbook (2005) pp J Zimmerman Property on the line: Is an expropriation-centred land reform constitutionally permissible? (2005) 122 SALJ 378. A Classens Compensation for expropriation: The political and economic parameters of market value compensation (1993) 9 SAJHR 422. M Chaskalson The problem with property: Thoughts on the Constitutional protection of property in the United States and the Commonwealth (1993) 9 SAJHR 380. T Allen Commonwealth Constitutions and the right not to be deprived of property (1993) 42 International and Comparative Law Quarterly 523. A Eisenberg Different Constitutional formulations of compensation clauses (1993) 9 SAJHR 412. SEMINAR TEN AND ELEVEN: 18 and 25 October 2006 PRESENTATIONS BY PARTICIPANTS ON SELECTED TOPICS Students are free to write on a topic of their choice within the confines of the course.