Die beperkings van regstellende gelykheid

THE LIMITATIONS OF RESTITUTIONARY EQUALITYThis is a compact review and analysis of the state of equality law in South Africa . Specific reference is made to what has been called "remedial" or "restitutionary" equality. From the analysis it appears that current equality law shows certain imbalances that are difficult to reconcile with the provisions of the Constitution. To point out shortcomings in equality law which is well intended to resolve the burning problems of inequality, can easily be misunderstood in the contemporary circumstances as a reactionary resistance against a necessary process of a justifiable drive for equality. Such is certainly not the purpose of this review. The intention is however to argue the position that striving for equality must be a balanced process in order to ensure that the boundaries of equality themselves are not transgressed, since that would contradict the very essence of equality.In the first section the constitutional provisions on equality are briefly described. It is noted that the Constitution does not establish "a right to equality", but that it consistently deals with equality as a value. The wording of section 9 does however justify a term such as "the equality right."Next the approach of the judiciary to equality, in which the analytical steps of interpretation that were developed by the Constitutional Court are set out, is reviewed with special mention of the role that has been allocated to the value of human dignity in the interpretation and application of equality rights.In the third section an answer is sought to the question what "equality" means. As opposed to the choice of equality jurisprudence in the USA for a formal notion of equality, the South African courts operate with the concept of substantive equality. It is in this context that mention is made of "remedial or restitutionary equality". Equality is given a meaning which implies action. This is supported partly by the wording of sections 1 and 9(2) of the Constitution, but not by the formulation of sections 7(1), 9(1), 36(1) or 39(1). The only constitutional provision which imparts meaning directly to the notion of equality, is section 9(2), providing that "equality includes the full and equal enjoyment of all rights and freedoms." This gives meaning to equality as a value, to the equality rights and to equality as a description in the Constitution of the nature of the society that is being striven for. The complexity and multi-faceted nature of equality does not allow for a simplistic approach to its meaning. The boundary between equality and inequality is quite sharp and the mobilization of equality for the achievement of political, ideological or pragmatic goals can readily lead to inequality and injustice.Against this background the most important pieces of equality legislation, the Employment Equity Act, 1998 and the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000, are discussed. These Acts were adopted "to promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination" in terms of section 9(2) of the Constitution. Both however contain provisions that go beyond the scope of the Constitution by e.g. the addition of grounds upon which unfair discrimination is prohibited and by excluding affirmative action measures from the meaning of unfair discrimination.The Constitution can not be interpreted in a manner that would allow unfair discrimination for any purpose. The legislation however seem to disregard the possibility of affirmative action becoming discriminatory in itself. This resonates with the view that "substantive equality" allows for measures "that favour relatively disadvantaged groups at the expense of those who are relatively well off". It is however submitted that not the current ideology behind affirmative action, nor one's preferred understanding of equality or the analytical model that is being used, can determine what the justifiable content of equality law should be: the question is rather what may be justified in law, specifically under the Constitution.The form in which elements of the equality legislation are cast, viz. guidelines for its application and illustrative lists of unfair practices, harbours the danger that uncareful interpreters of the law could be seduced to give precedence to the legislation above the Constitution. This would result in a persecutory application of equality law in terms of examples in stead of the constructive and principled approach required by the Constitution.The equality laws also attempt to extend the list of grounds contained in section 9(3) of the Constitution upon which discrimination is presumed to be unfair by the addition of HIV status, family responsibility, political opinion, socio-economic status, nationality and family status. The constitutionality of amending section 9(3) in this manner by means of ordinary legislation is suspect, especially if it is considered that differentiation which is justifiable under the Constitution may be rendered unfair discrimination under ordinary legislation.It is concluded that an emphasis on only the restitutionary element causes a conceptual tension to occur within the multi-faceted notion of equality. This can not be explained only in terms of the distinction between formal and substantive equality, since an over-emphasis of restitution will inevitably bring about imbalances in the outcome of equality actions, i.e. within the framework of striving for substantive equality. Some commentators, courts and the legislature tend to attempt to improve on the Constitution insofar as the achievement of equality is concerned. It is submitted that such attempts are unnecessary, since the Constitution makes sufficient provision for the restitutionary process while the balance of a comprehensive notion of equality is maintained in the form of equality as core value. The limitation of the concept of equality to restitutionary equality will unjustifiably impoverish and partially neutralize the constitutional text. Lessons must in this regard be learnt from the pre-constitutional errors of positivistic legal interpretation.Article in Afrikaan

'n Herkouing van die regs-, owerheidsgesags- en staatsbegrippe*

The article contains a recapitulation of the concepts of law, of state authority and of the state. The author provides a set of defining postulations at the beginning of the article to support his discussion. In the first part the concern is with the fact that ‘law’ encompasses all the ordering laws of the universe. Law in its narrower ‘juridical’ sense has to do with man in his temporal existence. Characteristics of juridical laws are outlined briefly. 'Law' is then seen to be the composite of the prescriptive rules by means of which a legal community is ordered juridically. These rules are positivized by office-bearers within the community, adhering to minimum demands and limits demanded by creation without necessarily being optimal

Politics, socio-economic issues and culture in constitutional adjudication

No Abstract

Law as a vehicle for peace in South Africa

Is the law at all an aid towards the defusing of the complex and potentially explosive political situation in which the Republic finds itself today? Seeing that the state is a creation of the law, the answer to this question has to be affirmative, because the contentious institutions and structures of the state can only be applied through legal process

Utilizing constitutional values in constitutional comparison

No Abstract

The role of a positive trigger event in actioning authentic leadership development.

Authenticity can best be understood in context, and context implies action (Payne, 1996). For the purpose of this study, leadership in general, and authentic leadership in particular, were explored in terms of the actions of former mayor of New York City, Rudolph Giuliani, who displayed authentic leadership in action during the tragic aftermath of the World Trade Centre attacks. Authentic leadership development tends to be triggered by a negative event (as in the case of 9/11 for Giuliani, for example). Since there is limited knowledge of how a positive event may trigger authentic leadership development, the aim of this study was to explore the potential of Appreciative Inquiry (AI) - an affirmative mode of action research - as a positive trigger event for authentic leadership development. The results indicated that this positive approach to change could indeed be implemented for this purpose

Voicing curriculum: Exploring embodied entanglements of arts-based inquiry and refrain

In this article, we share our understanding of a “more than” (Ulmer 2017, 10) critical curriculum inquiry and how this type of inquiry can help us collapse the subject‒object binary by attentively responding to embodied experiences in curriculum studies. Our focus is specifically on the affective dimension of curriculum inquiry as we work with what St. Pierre (2018, 604) refers to as the “history of the present”. We use education memory to tap into the nuanced intra-actions between post-humanism, curriculum studies and how these are extended into the post-schooling context. We understand education memory as the sensory, affective and embodied experiences of education that emerge as we pause in awareness of our present moment of becoming. We draw on Pinar’s currere as folding memory into the present to continuously give voice to multidimensional layers of imagined futures. We draw on the concept of refrain (Deleuze and Guattari 1988, 300), which we understand as complex lived experiences informative in our becoming as educators. In using arts-based methods such as poetry, object inquiry, drawing and drumming, we explore lived experiences to tangibly integrate memory and imagination on pedagogical refrains that shape our becoming. Arts-based methods and materials afford tactile engagement with materiality and attentive responsiveness. Thus, we ask: How might the concept of refrain, as manifest in an arts-based research approach, allow us to give voice to curriculum entanglements as a “more-than-critical” curriculum? Through this question, we pay attention to relational occurrences as refrains, for memory and improvisation becoming integrated to inform curriculum entanglements between humans and the more-than-human

One size doesn't fit all: Tailoring adult antiretroviral treatment

Advances in antiretroviral treatment mean that patients in the public health system can be given more options in the management of their treatment. Although public health programmes tend to offer one-size-fits-all approaches, patients might benefit from a more flexible approach. In particular, we propose that people with HIV should be given more choice with regard to when to start treatment, and patients who experience efavirenz side-effects should be encouraged to switch to other medications, which will be facilitated by faster registration and lower prices of newer antiretrovirals

Die beperkings van regstellende gelykheid

This is a compact review and analysis of the state of equality law in South Africa .  Specific reference is made to what has been called "remedial" or "restitutionary" equality. From the analysis it appears that current equality law shows certain imbalances that are difficult to reconcile with the provisions of the Constitution. To point out shortcomings in equality law which is well intended to resolve the burning problems of inequality, can easily be misunderstood in the contemporary circumstances as a reactionary resistance against a necessary process of a justifiable drive for equality. Such is certainly not the purpose of this review. The intention is however to argue the position that striving for equality must be a balanced process in order to ensure that the boundaries of equality themselves are not transgressed, since that would contradict the very essence of equality.  In the first section the constitutional provisions on equality are briefly described. It is noted that the Constitution does not establish "a right to equality", but that it consistently deals with equality as a value. The wording of section 9 does however justify a term such as "the equality right."  Next the approach of the judiciary to equality, in which the analytical steps of interpretation that were developed by the Constitutional Court are set out, is reviewed with special mention of the role that has been allocated to the value of human dignity in the interpretation and application of equality rights.  In the third section an answer is sought to the question what "equality" means. As opposed to the choice of equality jurisprudence in the USA for a formal notion of equality, the South African courts operate with the concept of substantive equality. It is in this context that mention is made of "remedial or restitutionary equality".  Equality is given a meaning which implies action.  This is supported partly by the wording of sections 1 and 9(2) of the Constitution, but not by the formulation of sections 7(1), 9(1), 36(1) or 39(1). The only constitutional provision which imparts meaning directly to the notion of equality, is section 9(2), providing that "equality includes the full and equal enjoyment of all rights and freedoms." This gives meaning to equality as a value, to the equality rights and to equality as a description in the Constitution of the nature of the society that is being striven for. The complexity and multi-faceted nature of equality does not allow for a simplistic approach to its meaning. The boundary between equality and inequality is quite sharp and the mobilization of equality for the achievement of political, ideological or pragmatic goals can readily lead to inequality and injustice.  Against this background the most important pieces of equality legislation, the Employment Equity Act, 1998 and the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000, are discussed. These Acts were adopted "to promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination" in terms of section 9(2) of the Constitution. Both however contain provisions that go beyond the scope of the Constitution by e.g. the addition of grounds upon which unfair discrimination is prohibited and by excluding affirmative action measures from the meaning of unfair discrimination.  The Constitution can not be interpreted in a manner that would allow unfair discrimination for any purpose. The legislation however seem to disregard the possibility of affirmative action becoming discriminatory in itself. This resonates with the view that "substantive equality" allows for measures "that favour relatively disadvantaged groups at the expense of those who are relatively well off". It is however submitted that not the current ideology behind affirmative action, nor one's preferred understanding of equality or the analytical model that is being used, can determine what the justifiable content of equality law should be:  the question is rather what may be justified in law, specifically under the Constitution.  The form in which elements of the equality legislation are cast, viz. guidelines for its application and illustrative lists of unfair practices, harbours the danger that uncareful interpreters of the law could be seduced to give precedence to the legislation above the Constitution. This would result in a persecutory application of equality law in terms of examples in stead of the constructive and principled approach required by the Constitution.  The equality laws also attempt to extend the list of grounds contained in section 9(3) of the Constitution upon which discrimination is presumed to be unfair by the addition of HIV status, family responsibility, political opinion, socio-economic status, nationality and family status. The constitutionality of amending section 9(3) in this manner by means of ordinary legislation is suspect, especially if it is considered that differentiation which is justifiable under the Constitution may be rendered unfair discrimination under ordinary legislation.  It is concluded that an emphasis on only the restitutionary element causes a conceptual tension to occur within the multi-faceted notion of equality. This can not be explained only in terms of the distinction between formal and substantive equality, since an over-emphasis of restitution will inevitably bring about imbalances in the outcome of equality actions, i.e. within the framework of striving for substantive equality. Some commentators, courts and the legislature tend to attempt to improve on the Constitution insofar as the achievement of equality is concerned. It is submitted that such attempts are unnecessary, since the Constitution makes sufficient provision for the restitutionary process while the balance of a comprehensive notion of equality is maintained in the form of equality as core value. The limitation of the concept of equality to restitutionary equality will unjustifiably impoverish and partially neutralize the constitutional text. Lessons must in this regard be learnt from the pre-constitutional errors of positivistic legal interpretation.   &nbsp

New antiretrovirals: What\'s in it for southern Africa

The rise of novel antiretrovirals (ARVs) has introduced a new evolutionary phase in HIV care. In developed countries, the 1980s and early 1990s were characterised by palliative care and opportunistic infection prophylaxis; the late 1990s by an attempt to use a limited and toxic antiretroviral arsenal effectively while cycling through high levels of resistance; and finally, the first half of this decade by working out the easiest-to-take regimens, using the steadily rising number of safer drugs. At present, there are 8 nucleoside analogues (NRTIs), 3 non-nucleoside analogues (NNRTIs), 10 protease inhibitors (PIs), and one each of the fusion, entry and integrase inhibitors to choose from, along with a new drug pipeline that targets both existing and new targets in the viral replicative cycle. The choice may seem quite vast, but the reality is that many of these drugs cannot be used simultaneously or in patients with extensive drug resistance. In addition, some drugs have unacceptable toxicities and are not favoured in current treatment regimens. Southern African Journal of HIV Medicine Vol. 9 (4) 2008: pp. 44-4