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Articles 1 - 30 of 30
Full-Text Articles in Law
Ice Raids Bear A Disturbing Resemblance To The “Pass Raids” Of Apartheid, Penelope Andrews
Ice Raids Bear A Disturbing Resemblance To The “Pass Raids” Of Apartheid, Penelope Andrews
Other Publications
No abstract provided.
A Man Of Ubuntu: A South African Colleague's Tribute To Stephen Ellmann, Penelope Andrews
A Man Of Ubuntu: A South African Colleague's Tribute To Stephen Ellmann, Penelope Andrews
Articles & Chapters
In Memoriam: Stephen Ellmann
South Africa’S Historic Silicosis Class Action: Why The Settlement Matters, Penelope Andrews
South Africa’S Historic Silicosis Class Action: Why The Settlement Matters, Penelope Andrews
Other Publications
No abstract provided.
Jail Time For South African Woman Using Racist Slur Sets New Precedent, Penelope Andrews, Chantelle Feldhaus, René Koraan
Jail Time For South African Woman Using Racist Slur Sets New Precedent, Penelope Andrews, Chantelle Feldhaus, René Koraan
Other Publications
No abstract provided.
Editorial: Special Focus On 'Dignity Takings And Dignity Restorations', Penelope Andrews
Editorial: Special Focus On 'Dignity Takings And Dignity Restorations', Penelope Andrews
Articles & Chapters
No abstract provided.
The Practice - And Rule - Of Law, Stephen Ellmann
The Practice - And Rule - Of Law, Stephen Ellmann
Articles & Chapters
No abstract provided.
Justice, Reconciliation, And The Masculinist Way: What Role For Women In Truth And Reconciliation Commissions?, Penelope Andrews
Justice, Reconciliation, And The Masculinist Way: What Role For Women In Truth And Reconciliation Commissions?, Penelope Andrews
Articles & Chapters
During periods of armed conflict, women and girls are frequently subjected to violence because of their gender. National governments have attempted to address this issue through transitional justice mechanisms like truth and reconciliation commissions. The record of women’s input and participation in these processes, however, is rather poor. In this article, I highlight the role of South Africa’s Truth and Reconciliation Commission (SATRC) and the opportunity the SATRC missed in failing to comprehensively confront andexamine the systemic nature of violence against women under apartheid. Many transitional justice mechanisms, the SATRC being one of the more vivid examples, have adopted a …
The Struggle For The Rule Of Law In South Africa (Symposium: Twenty Years Of South African Constitutionalism: Constitutional Rights, Judicial Independence And The Transition To Democracy), Stephen J. Ellmann
Articles & Chapters
No abstract provided.
The Quest For Constitutionalism: South Africa Since 1994, Penelope Andrews
The Quest For Constitutionalism: South Africa Since 1994, Penelope Andrews
Other Publications
No abstract provided.
The Cause Lawyer’S Cause, Frank W. Munger
The Cause Lawyer’S Cause, Frank W. Munger
Articles & Chapters
The promise of human rights in South Africa may depend significantly on the course chosen by a professional and relatively independent South African judiciary. But what about the promise of human rights in other developing states which lack a judiciary with similar potential? Cause lawyers, increasingly visible in many of these new states, are presumed carriers of liberal legalism and democracy and celebrated for their courageous defence of human rights even in the absence of an independent court system. This comment argues that celebration of cause lawyers may reflect presumptions about their causes that are questionable even in the Global …
In Praise Of Martin Chanock, Stephen Ellmann, Heinz Klug, Penelope Andrews
In Praise Of Martin Chanock, Stephen Ellmann, Heinz Klug, Penelope Andrews
Articles & Chapters
No abstract provided.
A Bittersweet Heritage: Learning From The Making Of South African Legal Culture, Stephen Ellmann
A Bittersweet Heritage: Learning From The Making Of South African Legal Culture, Stephen Ellmann
Articles & Chapters
This essay responds to Martin Chanock's argument that race tainted the entire enterprise of South African judging. It seeks to understand how that could have been so, and looks to such driving forces as whites' guilt, denial, identity-building, self-protection, and legitimation for explanations. Then it asks whether an institution so tainted should now be altogether abandoned as part of the rebuilding of post-apartheid South Africa. The essay answers that much should be changed, but that the existence of a judiciary laying claim to a special expertise and responsibility in interpreting law and protecting rights a key heritage of the old …
Who's Afraid Of Polygamy? Exploring The Boundaries Of Family, Equality And Custom In South Africa, Penelope Andrews
Who's Afraid Of Polygamy? Exploring The Boundaries Of Family, Equality And Custom In South Africa, Penelope Andrews
Articles & Chapters
South Africa's post-apartheid constitution has been widely admired and constantly referenced by international scholars, and especially international human rights scholars, for its comprehensive embrace of gender equality. But the commitment to gender equality has been tested by other liberatory discourses, including African nationalism and cultural and religious autonomy. This Article examines the evolution of South African legislation and constitutional jurisprudence in the face of competing imperatives, for example, between equality, legal pluralism, customary law/religious law, and the recognition of polygamy. In particular, it focuses on the Recognition of Customary Marriages Act, a statute that purports to regulate customary marriages, including …
Marking The Path Of The Law, Stephen Ellmann
Marking The Path Of The Law, Stephen Ellmann
Articles & Chapters
This article, published in South Africa's Constitutional Court Review, focuses on the Constitutional Court of South Africa in order to discuss the nature of constitutional judging more generally. Looking to Brown v. Board of Education as an example, it argues that technical skill – though obviously important – is not the highest virtue of the constitutional judge, and that a central attribute of constitutional judging is commitment to the values of the constitution. But commitment to values is more than a matter of rational assent. As everyday experience and neurological evidence teach us, commitment naturally and unavoidably involves the judge’s …
"Big Love"'? The Recognition Of Customary Marriages In South Africa, Penelope Andrews
"Big Love"'? The Recognition Of Customary Marriages In South Africa, Penelope Andrews
Articles & Chapters
This Comment contextualizes the issue of polygamous marriages within the South African constitutional paradigm, one committed unequivocally to the principle of equality. This Comment analyzes how South African law, European in origin, had to incorporate the laws and institutions of indigenous communities within the national legal framework, as part of the overall transformative legal project underway in the country since 1994. By focusing on the Recognition of Customary Marriages Act, this Comment examines such incorporation, while questioning its effect on the overall project of constitutionalism, human rights, and equality.
Perspectives On Brown: The South African Experience, Penelope Andrews
Perspectives On Brown: The South African Experience, Penelope Andrews
Articles & Chapters
In this paper the author examines the lessons of Brown v. Board of Education for the South African struggle for racial equality, South Africa's constitutional transition, and the significance of Brown in pursuing the right to education in South Africa. The author concludes that although Brown was of tremendous symbolic value to South Africans, the South African constitutional framework, negotiated in the early 1990s, reflected global human rights developments more substantially than it did the American civil rights struggle. This is demonstrated by the mandate of the South African Constitution to consider international law and by the limited references to …
Reparations For Apartheid's Victims: The Path To Reconciliation?, Penelope Andrews
Reparations For Apartheid's Victims: The Path To Reconciliation?, Penelope Andrews
Articles & Chapters
No abstract provided.
From Gender Apartheid To Non-Sexism: The Pursuit Of Women's Rights In South Africa, Penelope Andrews
From Gender Apartheid To Non-Sexism: The Pursuit Of Women's Rights In South Africa, Penelope Andrews
Articles & Chapters
This article discusses the quest for women's rights in South Africa and how the transition from apartheid to democracy led to a commitment to gender equality as incorporated in South Africa's transitional and final Constitutions. This paper refers to the organizational attempts by women prior to and during the constitutional drafting process to ensure that the new Constitution embodied the aspirations and reflected the struggles for women's rights by women activists in South Africa. This article is divided into six sections. Section Two describes the legacy of apartheid for all women in South Africa. This section shows how the laws …
A Constitutional Confluence: American ‘State Action’ Law And The Application Of South Africa’S Socioeconomic Rights Guarantees To Private Actors, Stephen Ellmann
A Constitutional Confluence: American ‘State Action’ Law And The Application Of South Africa’S Socioeconomic Rights Guarantees To Private Actors, Stephen Ellmann
Articles & Chapters
As constitutional protection of human rights expands around the world, the question of whether constitutional rights should protect people not only against state action but also against the conduct of private actors is once again timely. Few nations have so broadly, or so ambiguously, endorsed the application of constitutional guarantees to constrain private conduct (known outside the United States as "horizontality") as South Africa. The constitution approved in 1996 applies fully and without qualification to all "organs of state," and this term is defined in section 239 in potentially very broad terms, notably embracing "any other functionary or institution ... …
Introduction: Towards Understanding South African Constitutionalism, Penelope Andrews, Stephen Ellmann
Introduction: Towards Understanding South African Constitutionalism, Penelope Andrews, Stephen Ellmann
Articles & Chapters
No abstract provided.
A Grand Exercise In Forgiveness, Or Justice Held Hostage To Truth? South Africa’S Truth And Reconciliation Commission, Penelope Andrews
A Grand Exercise In Forgiveness, Or Justice Held Hostage To Truth? South Africa’S Truth And Reconciliation Commission, Penelope Andrews
Articles & Chapters
An evaluation of the success or otherwise of the TRC may seem premature, but there have been some interesting reflections thus far. One such work is David Dyzenhaus’ book, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order. The book is a narrative and critique of the legal hearings which took place over three days at the TRC. This is a review of the Dyzenhaus book.
Globalization, Human Rights And Critical Race Feminism: Voices From The Margins, Penelope Andrews
Globalization, Human Rights And Critical Race Feminism: Voices From The Margins, Penelope Andrews
Articles & Chapters
South Africa and Australia, albeit markedly different in their demographics, politics, and history, share a colonial past, where race was the fault line throughout the society. Although there were marked differences in the colonial structure and various policies of the colonial administrators, both societies shared certain patriarchal attitudes that cemented during the colonial period and left a particular legacy of violence against black women. In both, the incidence of violence against women was so systemic and so ubiquitous that it has been described as a continuing violation of their human rights. The intersection of colonialism, patriarchy and violence and its …
Affirmative Action In South Africa: Transformation Or Tokenism, Penelope Andrews
Affirmative Action In South Africa: Transformation Or Tokenism, Penelope Andrews
Articles & Chapters
No abstract provided.
Affirmative Action In South Africa: Transformation Or Tokenism, Penelope Andrews
Affirmative Action In South Africa: Transformation Or Tokenism, Penelope Andrews
Articles & Chapters
No abstract provided.
Discussant, In Response To Justice Richard J. Goldstone, 1998 Otto L. Walter Lecture: International Human Rights At Century’S End, Stephen Ellmann
Discussant, In Response To Justice Richard J. Goldstone, 1998 Otto L. Walter Lecture: International Human Rights At Century’S End, Stephen Ellmann
Articles & Chapters
No abstract provided.
Violence Against Women In South Africa: The Role Of Culture And The Limitations Of The Law, Penelope Andrews
Violence Against Women In South Africa: The Role Of Culture And The Limitations Of The Law, Penelope Andrews
Articles & Chapters
This paper describes the role of culture in perpetuating violence against women. It does this by contextualizing violence against women in South Africa within the grand project of transformation taking place there, and highlighting the possibilities of fundamental restructuring, with respect to rights and equality for women, when the feminist project intersects with the non-racial project. The paper, therefore, visits a familiar question, namely, the obstacles to transformation when the eradication of racism takes precedence over the elimination of sexism, as it historically has in South Africa. In addition, this paper describes recent attempts by the legislature and courts in …
The Creation Of South Africa's Constitution: Introduction, Stephen J. Ellmann
The Creation Of South Africa's Constitution: Introduction, Stephen J. Ellmann
Articles & Chapters
No abstract provided.
The Creation Of South Africa's Constitution: Introduction, Stephen J. Ellmann
The Creation Of South Africa's Constitution: Introduction, Stephen J. Ellmann
Articles & Chapters
No abstract provided.
Justice In A Post-Apartheid South Africa, Penelope Andrews
Justice In A Post-Apartheid South Africa, Penelope Andrews
Other Publications
No abstract provided.
Legal Text And Lawyers’ Culture In South Africa, Stephen Ellmann
Legal Text And Lawyers’ Culture In South Africa, Stephen Ellmann
Articles & Chapters
No abstract provided.