CASE DISCUSSION: EQUITABLE V EQUAL – WHAT THIS MEANS FOR LANGUAGE RIGHTS: LOURENS V SPEAKER OF THE NATIONAL ASSEMBLY
2016-03-30
On 10 March 2016, the Supreme Court of Appeal (SCA) dismissed an appeal from the Equality Court by an Afrikaans-speaking lawyer who claimed that the failure on the part of Parliament and the Minister of Arts and Culture to publish legislation in all 11 official languages was tantamount to unfair discrimination. As an Afrikaans speaker, he felt disadvantaged because statutes are no longer published in that language. In light of the current public debate on the place and role of languages in tertiary institutes and in the civic society, the ruling lends greater understanding to the debate.
On 18 February 2016, the Constitutional Court (the Court) handed down a resounding unanimous judgment regarding the detention of unsuccessful asylum applicants, as well as other groups of undocumented foreigners upon the breach of migration provisions. The provision concerned is section 34(1) of the Immigration Act, which requires that the concerned individuals be arrested and detained in a manner as well as place determined by the Director-General of Home Affairs.
Monday, 21 March, marks South Africa’s celebration of Human Rights Day. The day is set aside to remind the nation of its transition from apartheid to a constitutional democracy founded on values of human dignity, the achievement of equality, and the advancement of human rights and freedoms, as well as non-racialism and non-sexism. The supremacy of the Constitution and the Rule of Law are also guaranteed. A similar guarantee exists for universal adult suffrage, a national common voter’s roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.
The Constitution at section 7(2) provides that the state must respect, protect, promote and fulfil the rights in the Bill of Rights. As a constitutional democracy, South Africa’s values are underpinned by considerations of human dignity, the achievement of equality, and the advancement of human rights and freedoms; non-racialism and non-sexism, supremacy of the Constitution and the Rule of Law; and a multi-party democracy to ensure a government that is accountable, responsive and transparent. Further, the Bill of Rights binds the Legislative, the Executive, the Judiciary and all organs of state. The Bill of Rights is not limited to protecting individuals against the state, but also provides in some circumstances direct protection of individuals against rights abuses by other individuals.
The Centre for Constitutional Rights (CFCR) welcomes the Supreme Court of Appeal’s (SCA) dismissal of the government’s appeal in the al-Bashir matter as an important affirmation of the Rule of Law. Section 2 of the Constitution establishes the Supremacy of the Constitution and provides that any law or conduct inconsistent with the Constitution is invalid and further that obligations imposed by the Constitution must be fulfilled. There is no derogation from this obligation.
If news reports are to be believed, then the Minister of Rural Development and Land Reform, Gugile Nkwinti, intends to extend the cut-off date for land claims to include pre-1913 claims. But the Constitution explicitly provides that “A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled … to restitution of that property…”.
The Expropriation Bill (the Bill) has been passed by the National Assembly and is currently on its way to the National Council of Provinces who may either accept the Bill as it is, or accept with changes, or even reject the Bill. Should it be accepted, then all that will remain will be the President’s signature and a date of commencement for there to be a new expropriation process.
The official opposition political party has signaled its intention to introduce, in accordance with Parliament’s established Rules, a motion of no confidence in the President. This motion will be debated on 1 March 2016 by the National Assembly. The opposition party has cited the President’s decision to remove the Finance Minister, Nhlanhla Nene late last year – a decision which reportedly cost the economy R500 billion – as the driver for the decision to proceed with the motion. It is not the first time that the opposition party has attempted to have a no confidence resolution passed in the National Assembly.
On Tuesday 16 February 2016 the Centre for Constitutional Rights (CFCR) and the School of Public Leadership (SPL) at Stellenbosch University (SU), supported by the Konrad Adenauer Stiftung (KAS), hosted the first breakfast meeting of 2016 in its Constitutional democracy and good public leadership series. As is now common knowledge from previous breakfasts, the aim of these discussions is to facilitate dialogue and debate about the Constitution and good public leadership.