South Africa


Intersectionality and equality: a view from the Constitutional Court of South Africa

26 November 2020 by

Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24 (19 November 2020)

The house owner did not hear when Ms Mahlangu drowned in the family swimming pool. She was a domestic worker who had given 22 years of her life to tending to that family’s needs. Like most domestic workers in South Africa, she was a Black woman. Her daughter – Sylvia Mahlangu – sought to claim compensation from a statutory fund set up for employees who suffer injuries at work. Her claim failed because the legislation excluded domestic workers, like her mother, from the definition of ‘employee’ (see here, (xviii)(d)(v) excluding “a domestic employee employed as such in a private household” from compensation). 

The Constitutional Court of South Africa unanimously held that the exclusion of domestic workers from the statutory definition of employee breached the right to equality  (see here), and, by majority, the rights to dignity and to social security.  What I wish to focus on in this post is the diverging approaches to equality between the ‘dissenting’ judgment of Jafta J, on the one hand, and the ‘majority’ judgments of Victor AJ and Mhlantla J, on the other.  In particular, I wish to focus on the way Victor AJ and Mhlantla J relied on the concept of ‘intersectionality’ to understand what was truly constitutionally offensive about excluding domestic workers from the statutory definition of employee.  What follows is a necessarily high-level overview (at the risk, I accept, of being somewhat blunt). I hope the reader will understand that it is due to the constraints of space in a blog-post; I can only direct the interested reader to the judgments themselves. 


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Honeymoon murder suspect can be extradited to South Africa, says High Court

1 February 2014 by

dewani1Government of the Republic of South Africa v Dewani  [2014] EWHC 153 (Admin) 31 January 2014 – read judgment

Shrien Dewani, the British man facing charges of murdering his wife on honeymoon in South Africa, has lost his appeal to block extradition there (so far three men have been convicted in South Africa over Mrs Dewani’s death). The Court ruled that it would not be “unjust and oppressive” to extradite him, on condition that the South African government agreed to return him to the UK after one year if his depressive illness and mental health problems still prevented a trial from taking place.
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South African Supreme Court orders police to investigate Zimbabwe torture allegations

28 November 2013 by

subvertingjusticeNational Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre (485/2012) [2013] ZASCA 168 (27 November 2013) – read judgment.

In what appears to be the first case where the Supreme Court of Appeal (SCA) has had to consider the investigation of crimes committed extraterritorially, the Court has made it clear that the perpetrators of systematic torture – as was alleged in this case – can be held accountable in South Africa regardless of where the offending acts took place.

It had been alleged that Zimbabwean officials had on a widespread scale tortured opponents of the ruling party. The Gauteng high court had ordered the SAPS to initiate an investigation under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act) into the alleged offences (see my previous post on that ruling).  
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In South Africa, the not-so-quick and the dead.

13 November 2013 by

4208618041

 

There’s a crisis in South Africa’s mortuaries – in the investigation of death.

 This is due to a number of problems – incompetent staff who fail to gather forensic evidence, creaking and inadequate facilities, and the sheer number of dead bodies waiting to be processed. In a gripping but bleak documentary about Salt River Mortuary, which is responsible for processing cadavers in the Western Cape, the figures will make you gasp and stretch your eyes:

For the Western Cape alone, 3,000 bodies are handled by this Mortuary each year. Of this number, 65% are unnatural deaths (accidents, suicides, homicides). Of that number (approx 2,000) a staggering 80% are homicides – in other words, Salt River is responsible for providing the forensic evidence for reconstructing the crime scenes leading to 1,600 murders a year.

Watch the ten minute film here.
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South African Constitutional Court flexes its muscles on prior restraint

8 October 2012 by

Print Media South Africa v Minister of Home Affairs  ([2012] ZACC 22) – read judgment.

In a “momentous”  ruling on freedom of speech, the Constitutional Court has struck down a legislative provision on prior restraint,  “based on vague and overly broad criteria”, as offensive to the right to freedom of expression.

As the attorney for the amicus curiae Dario Milo explains in the Weekly Mail and Guardian (reposted on Inforrm), the court went even further than the relief contended for by the applicants, by striking down the entire provision as unconstitutional, rather than allowing certain criteria to be clarified  in accordance with the Bill of Rights.

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What you can do with rights – Justice Edwin Cameron

7 February 2012 by

On 25 January 2012 Justice Edwin Cameron, Justice of the Constitutional Court of South Africa, delivered an emotive and thoughtful talk entitled “What you can do with rights”. The Law Commission’s annual Lord Scarman Lecture covered apartheid, AIDS denialism, LGBT rights and delved into the essence of moral humanity. It was a lecture delivered with skill and fluency, with only the slight dissatisfaction being the vagueness of Justice Cameron’s conclusion: that legal rights allow people to achieve some progress, but they don’t solve every problem.

Justice Cameron has occupied a seat on the highest judicial bench of South Africa for three years. He was made a judge by President Nelson Mandela in 1994, when his country was emerging from the systemic violence that the apartheid system had wrought on human rights. This position gives him authority, but it is his personal experience that lent the lecture gravitas. The Justice was diagnosed as HIV positive at a time when the true scale of the epidemic was being realised, and publicly fought for access to the anti-retroviral drugs that saved his life at a time when the scale of his government’s folly in denying them to millions was becoming equally clear.

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