Judicial independence and the Constitution Fourteenth Amendment Bill

Discussion of judicial independence and the Constitution Fourteenth Amendment Bil

Adjudicating Affirmative Action Within a Normative Framework of Substantive Equality and The Employment Equity Act – An Opportunity Missed?

The development of a constitutionally informed legal standard to test employment equity plans and affirmative action measures will always be troubled in a country that has seen racial classification serve as the basis for oppression and subordination, and now seeks to use it in achieving a ‘non-racial’ democracy. Contestation over how to secure redress, restitution and substantive equality are inevitable. The Barnard judgment demonstrates a common commitment to restitution and transformation, and, indeed, a common outcome. However, between that commitment and the outcome lie important differences in philosophical and legal approaches to equality, to s 9 of the Constitution and s 6 of the Act (and the relationship between them), to the standard of justification for positive measures and to the need for courts to engage substantively with crucial issues in our democracy. In this case-note, after setting out the case history and judgments in some detail, I explore the contrasting ideas of equality that underpin the different approaches to positive measures and discuss which is best suited to our constitutional project. I then suggest how this normative framework can inform the adjudication of employment equity plans and affirmative action measures under the Employment Equity Act. No single judgment in Barnard achieves this.CHA201

Substantive Equality and Transformation in South Africa

This article considers whether ‘substantive equality’, as a transformative idea and legal mechanism in the South African Constitution, can generate legal solutions and court decisions that may result in transformative change. It does so by establishing a framework for analysing the ‘inclusionary’ or ‘transformatory’ effects of equality cases in relation to gender and sexual orientation. It argues that the idea of substantive equality is capable of addressing diverse forms of social and economic inequality, and that the legal form of substantive equality adopted by the Constitutional Court, emphasising context, impact, difference and values,has some potential for achieving meaningful social and economic change by and through courts. However, the manner is which the Court has engaged with this legal form suggests that the transformative possibilities of equality are constrained by a number of factors. These include institutional concerns, the capacity and willingness of judges to recognise and address the multiple systemic inequalities that still pervade our society as well as their ability to develop a consistently transformative jurisprudence that applies the ideas of substantive equality to the concepts and doctrines that underpin many equality claims

Legal Realism, Transformation and the Legacy of Dugard

John Dugard’s courageous inaugural lecture drew on American realism, modern natural law and South Africa’s liberal tradition to argue that judges might better serve the ends of justice if they recognised their creative role, and replaced their subconscious prejudices and preferences with liberal values of the common law. This turn to legal realism to understand South Africa law was a significant intellectual development. However, its implications remain undeveloped within the theory and practice of law in South Africa. (Critical )legal realism raises significant questions about the nature of law and its role in sustaining public and private power. The lessons of legal realism in relation to the dominant legal method (formalism) and the nature of private law were not really taken up by lawyers and legal academics under apartheid. This meant that South African lawyers were ill-prepared for the challenges of transformation in the legal system, especially in relation to legal method, the form and content of private law and the development of law under ss 8 and 39(2) of the Constitution. Moreover, while progressive lawyers have always recognised the political nature of law – especially under apartheid – this has not always translated into a deeper understanding of how the form and content of our democratic Constitution is contested, and how law and politics seep into one another

Equality beyond Dignity: Multi-dimensional equality and Justice Langa’s judgments

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Judicial Diversity

CHA2018https://juta.co.za/products/the-judiciary-in-south-africa-2/https://juta.co.za/products/the-judiciary-in-south-africa-2

An international effort towards developing standards for best practices in analysis, interpretation and reporting of clinical genome sequencing results in the CLARITY Challenge

There is tremendous potential for genome sequencing to improve clinical diagnosis and care once it becomes routinely accessible, but this will require formalizing research methods into clinical best practices in the areas of sequence data generation, analysis, interpretation and reporting. The CLARITY Challenge was designed to spur convergence in methods for diagnosing genetic disease starting from clinical case history and genome sequencing data. DNA samples were obtained from three families with heritable genetic disorders and genomic sequence data were donated by sequencing platform vendors. The challenge was to analyze and interpret these data with the goals of identifying disease-causing variants and reporting the findings in a clinically useful format. Participating contestant groups were solicited broadly, and an independent panel of judges evaluated their performance. RESULTS: A total of 30 international groups were engaged. The entries reveal a general convergence of practices on most elements of the analysis and interpretation process. However, even given this commonality of approach, only two groups identified the consensus candidate variants in all disease cases, demonstrating a need for consistent fine-tuning of the generally accepted methods. There was greater diversity of the final clinical report content and in the patient consenting process, demonstrating that these areas require additional exploration and standardization. CONCLUSIONS: The CLARITY Challenge provides a comprehensive assessment of current practices for using genome sequencing to diagnose and report genetic diseases. There is remarkable convergence in bioinformatic techniques, but medical interpretation and reporting are areas that require further development by many groups

Gendered Transformation in South African Jurisprudence: Poor Women and the Constitutional Court

Central to the transformative project of the South African Constitution, although not always recognised as such, is the need to address the distinctive forms of poverty and inequality experienced by women. This article explores the extent to which, and how, poor women have been included within the constitutional project, firstly, by describing the complexity of poor women's lives and then through a brief analysis of cases and jurisprudence on equality and socio-economic rights. Underlying these two facets of the article are two key questions: What does the experience of poor women tell us about the meaning of transformation and a transformative Constitution? How can we seek a more transformative (and gendered) understanding of equality and socio-economic rights jurisprudence? The article argues that the lived realities of poor women remind us that the kind of transformation - and transformative legal strategies - that are necessary to generate meaningful change require attention to structure and agency, to redistribution and recognition, to individual and community, to public and private (especially care-giving roles in families), to inequality and poverty. To achieve this through equality and socio-economic rights jurisprudence entails greater care in the choices made by lawyers in selecting and arguing cases, and in advancing critical arguments that push the boundaries of progressive and strongly egalitarian forms of liberalism. It also requires a more gendered jurisprudence in courts where attention to women's socio-economic context is combined with a conscious attempt give meaningful content to the values informing constitutional rights, the gendered interests at stake and the manner in which the application of legal principles, such as reasonableness and fairness, can be shaped to include women. In the end transformation requires the construction of a society in which women and men are afforded equivalent, substantive conditions for exercising the choices that matter to them about how to live their lives, maintain their relationships, raise their children and pursue their aspirations.CHA201

Law, Gender and Inequality in South Africa

Post-apartheid South Africa has seen the extensive use of law to address the inequalities of the past. This article looks at the role of law in addressing gender-based inequalities, considering how it has addressed “recognition” in terms of women's status and social subordination, as well as questions of redistribution and economic inequality. South Africa has been particularly successful at extending legal rights and benefits of recognition, and at entrenching in law powerful normative frameworks that challenge traditional gender roles. Redistribution, on the other hand, has been primarily race-based, with limited policies and substantive rights that address gendered economic inequalities. The law and courts have played a lesser role here. The ability of law to redress inequality through transformative social and economic change is limited. However, it can be an important site of struggle in the engagement of cultural norms and social attitudes, as well as economic policy. The article concludes that, apart from concrete rights and benefits, the normative frameworks of law offer significant strategic opportunities for pushing at the boundaries of inequality and exclusion in the public and private spheres.