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South Africa -- Human Rights

The following sources are recommended by a professor whose research specialty is human rights in South Africa.

Six Superlative Sources

Safundi· Devenish, GE. A Commentary on the South African Bill of Rights (Butterworths 1999). This is the third of a trilogy of books written by Professor George Devenish. His first book, The Interpretation of Statutes, was written and published prior to the introduction of the new constitutional dispensation and advocated a value-orientated approach to interpretation. The present constitutional dispensation adopted a similar approach to constitutional interpretation based on the values of equality, freedom and dignity. The book, like others of the genre, contributed directly to this. The second book is a commentary on the whole of the South African Constitution. Devenish's commentary on the Bill of Rights focuses exclusively on the Bill of Rights that is contained in Chapter 2 of the Constitution of the Republic of South Africa, 1996. The commentary includes the relevant decisions handed down up to 1998. The book is a complete and detailed description of the major jurisprudence on the Bill of Rights.

· De Waal, J, Currie, I, and Erasmus, G. The Bill of Rights Handbook, 2nd ed. (Juta 2000). After the intoduction of Bill of Rights litigation in South Africa, a substantial body of constitutional jurisprudence has been built up. The Constitutional Court has delivered many decisions and there is a plethora of High Court decisions, testifying to the increasing confidence with which the courts are dealing with the Bill of Rights. Parliament has been active, too, particularly in its ongoing efforts to bring the law of criminal procedure into line with the Constitution. Towards the end of 1999, at the time this edition was being finalised, Parliament was considering Bills designed to give statutory effect to the rights to equality, administrative justice and access to information. The Handbook is intended to provide a comprehensive guide to this increasingly complex field of South African law.

· Van Wyk, D, et al. Rights and Constitutionalism: The New South African Legal Order (Juta 1994). This book, written by various authors, was intended to provide an introduction to the new legal order created by the Constitution of 1993 by examining the new dispensation in a comparative and international context. Hence the title, Rights and Constitutionalism: The New South African Legal Order. In the preparation of the chapters the authors drew on the constitutional experience of other countries, such as Canada, India, Germany, and the United States, which greatly influenced the drafting of Chapter 3. The book provides an analysis of the fundamental principles of the new order rather than a description of details of a transient order (between the 1993 and 1996 Constitutions). These principles are the supremacy of the Constitution, the notion of a democratic constitutional state, and the judicial protection of fundamental rights. The work is divided into four parts. The first deals with constitutionalism, democracy, and constitutional interpretation. The second part provides an examination of the historical background of the 1993 Constitution and a description of its principal features. The third part, which contains an analysis of the key fundamental rights, constitutes the main focus of the work. Civil and political rights, social and economic rights, the concept of equality and administrative justice, and the circumstances in which limitations may be imposed on rights are examined in an international and comparative setting. The final part comprises a bibliography of the works cited in the text which follows the sequence of the chapters. This provides the reader with an easy reference guide to the most significant literature on each chapter.

· Freedman, W. "Understanding the Right to Equality." 1998. South African Law Journal 243. Equality is a core value underlying the democratic society envisioned by both the interim and final Constitutions. In the early years the Constitutional Court has resisted developing a coherent jurisprudence on the proper approach to be taken when an applicant alleges that his or her right to equality has been infringed. In President of the Republic of South Africa and another v Hugo 1997 4 SA 1 (CC), 1997 6 BCLR 708 (CC) and Prinsloo v Van der Linde and another 1997 3 SA 1012, 1997 6 BCLR 759 (CC), the Court grasped the nettle by the hand and set out the different stages of inquiry which must be satisfied whenever a law is challenged on the basis that it infringes the right to equality. The approach adopted by the Constitutional Court in these two cases has been reconfirmed by the Constitutional Court in Harksen v Lane NO and others 1998 1 SA 300 (CC), 1997 11 BCLR 1489 (CC). Harksen's case is significant, not simply because it reconfirms the approach adopted earlier by the Court but also because it clarifies the nature of the inquiry at each stage of the analysis as well as the Court's approach towards the principles underlying the right to equality. This article provides an analysis of the Harksen judgment.

· Van der Walt, AJ. "The Limits of Constitutional Property." 1997. South African Public Law 275. The property clause in section 25 of the Constitution of the Republic of South Africa, 1996, presents a number of often quite vexing problems. The purpose of this article is a very limited one, namely to analyse the limits of constitutional property with reference to the interpretive relationship between the general limitation clause in section 36 and the property clause in section 25 of the 1996 Constitution.

· Van der Walt, JWG. "Freedom of Expression and Defamation: A Reflection on Recent Developments." 1998. Journal for South African Law 198. Recent judgments in defamation actions against the press show that the South African courts are divided as regards the impact of the new constitutional dispensation on the law of defamation. These questions are discussed with reference to cases decided before the interim and final constitutions came into force. The author briefly considers the question whether the bill of rights applies to defamation suits between private individuals and concludes that it does apply irrespective of the stance the court is going to take on the indirect/direct horizontality debate. The author expounds the stances taken by judges in defamation case law. The observations in this regard are compounded in a set of suggestions for a new approach to defamation actions against the media.

Other Excellent Sources

· Venter, F. "The Protection of Cultural, Linguistic and Religious Rights: The Framework Provided by the Constitution of the Republic of South Africa, 1996." 1998. South African Public Law 438. Different provisions of the Constitution are concerned with culture, language and religion. It is therefore obvious that cultural, linguistic and religious matters are elevated to notable levels of constitutional significance. The aim of this article is to determine how all these constitutional measures are to be implemented, what their legal purport are and how they are to be put to work to ensure the protection and advancement of the interests involved. Culture, language and religion are contextualised by means of an analysis of the relevant provisions of the constitutional text; the context within which the provisions are to be read and applied by considering the nature and extent of the state's concern with these matters; consideration of the impact of the Constitution's founding values upon culture and diversity, as well as the weight that these matters are given in the text of the Constitution.

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