Social Justice and Transformation

Addressing Provincial Health Departments’ Medicolegal Claims Liability II: Transforming Litigation Strategies And Tackling Corruption

Provinces' medicolegal claims liability is largely caused by negligence and intentional wrongdoing by the State Attorney when defending these claims. This brief examines the measures that have been adopted to counteract the problems in the Offices of the State Attorney.

Addressing Provincial Health Departments’ Medicolegal Claims Liability: Developing The Law Of Delict

Provincial health departments face numerous claims for damages for medical negligence. The common law provides that payments must be made in one lump sum, but this impacts on health departments' capacity to provide healthcare for others. This brief considers how the courts have begun developing the common law to provide for payments in kind and periodic payments.

Why Is Burger King Proving a Hard Sell?

This brief explores the legal basis for the Competition Commission prohibiting the purchase of Burger King by Emerging Capital Partners, and argues that it was borne out of an incorrect interpretation of the Competition Act.

Department seeks to amend the legislation governing the public service, but squanders the opportunity for meaningful reform

This brief examines the Department of Public Service and Administration's proposed amendments to the legislative scheme governing the public service. It is argued that the amendment bills fall short of what is required to professionalise the public service and end corruption.

The Expropriation Bill - Why is everyone focusing on expropriation without compensation and not on the major land reform issues?

This brief examines the many problematic aspects on the subject of land reform in South Africa and points out that the proposed amendment to the Constitution and the Expropriation Bill are not the major issues of concern.

Whom The Gods Would Destroy They First Make Mad

How to achieve redistribution with growth in a period of economic decline is difficult and the beginning of wisdom is to avoid actions which make things worse rather than better. The purpose of this brief is to identify some of them.

Service Delivery in South Africa at a Glance

Against the backdrop of recent discussions on service delivery in the Kgetlengrivier Local Municipality this brief will examine current reactions to service delivery failures and possible actions that aggrieved residents may take.

Who Are The Hungry Children? And How Far Can Increases In Social Grants Help Them? Evidence From The 2019 General Household Survey.

Hunger, and particularly child hunger, have been discussed recently as a justification for extending the social grant system. This brief probes the relationship between child hunger and social grants using data from the 2019 General Household Survey (GHS).

The Public Sector Wage Dispute: Understanding the judgment of the Labour Appeal Court

This brief considers and evaluates the reasoning of the Labour Appeal Court in the public sector wage dispute and considers the implications of its judgment, in light of the approach adopted by Treasury in the 2021 Budget.

Human Settlements In The Metros

This Brief discusses the Department of Human Settlements’ proposed re-orientation of its policies.

A Constitutional Challenge To The Supplementary Budget II: What Are The Prospects Of Success Of A Socio-Economic Rights Challenge?

This brief examines the prospects of success of a constitutional challenge to the Supplementary Budget based on the State’s failure to allocate more resources to be used for the fulfilment of socio-economic rights.

A Constitutional Challenge To The Supplementary Budget I: A Direct Challenge Within The Context Of The Separation Of Powers

An article in Daily Maverick has proposed a direct constitutional challenge to the Supplementary Budget. This brief examines whether a court will entertain a direct challenge to the Supplementary Budget.

Gender Based Violence in the time of Corona

The purpose of this brief is to remind the public that the cries in the protests against gender based violence of September 2019, when Uyinene Mrwetyana was raped and murdered, are not forgotten. It also seeks to create awareness that gender based violence is not uniquely a South African problem, but a global one that has increased in the few short weeks of a global lockdown.

Moral Laws IV: Abortion

Abortion, not unlike sex work, is an age old subject which has been criminalised and decriminalised over the centuries. Like both sex work and drugs, abortion is a moral issue which debate has, in recent years (relatively speaking), taken a legal undertone by introducing the question of when life actually begins, with implications for the view that termination of pregnancy is equivalent to murder.

Moral Laws III: Drugs

Like the first two briefs on sex work in this ‘Moral Laws’ series, the stigmatisation of drug dependent users as outcasts and criminals is based on a particular morality. Unfortunately, once again, this has played the key role in our government’s (and the world’s) handling, at least until recently, of the drug problem – viewing it as a criminal justice issue as opposed to a health problem.

Moral Laws II: Sex work - The Arguments

This brief is the second brief of a series of four. This brief lays out the arguments for the status quo and for a reform of the system. It also discusses a possible solution to the legislative problem, in the form of a midway position. The third brief will deal with drug use and the fourth with abortion.

Moral Laws I: Sex work - History and current status

This brief is the first of a series of four. It deals with legislation about the sex trade in South Africa The second brief lays out the arguments for the status quo and for a reform of the system. The second brief also discusses a possible solution to the legislative problem, in the form of a midway position. The third brief will deal with drug use and the fourth with abortion.

Respect And The Right To Be Heard: Some Reflections

In this brief Charles Simkins reflects on the state of play around questions of legitimate speech in contemporary society.

Does the World Bank’s Gini index show that South Africa is the most unequal society in the world?

This brief investigates the oft-repeated assertion that according to the World Bank’s Gini index, South Africa is the most unequal society in the world.

Sexual Assault - Part 3: Sexual violence as a Weapon of War

A very popular, yet grossly under recognised, feature and weapon of war is sexual violence. Sexual violence, like artillery, is used to cause destruction through the terrorisation of a population or as an assertion of power by belligerent forces. Rape, when committed as part of a widespread attack, is also an effective tool for bringing about the destruction, in whole or in part, of a national, ethnical, racial or religious group – otherwise known as genocide.

Sexual Assault - Part 2: Sexual Harassment in the Workplace

According to legislation, employers have a positive legal duty to ensure that the workplace is free from unfair discrimination. What the legislature and disciplinary bodies alike do not take into consideration are the delicacies of the power differentials between men and women (not only as between superiors and subordinates) in the workplace and the trauma suffered by the victims of sexual harassment. Until there is an understanding of these inherent power dynamics that exist in the workplace, sexual misconduct will continue to persist in that space.

Sexual Assault - Part 1: Sexual Offences in the Criminal Justice System

Crimes of a sexual nature, the world over, are prosecuted distinct from any other form of crime. The burden of proof in sexual offence cases is more stringent (although it is not permitted to be). The tests and defences used are subjective as opposed to objective – as with all other crimes. Unlike other crimes, commissions of sexual offences, it can be argued, are skewed predominantly against women and children. They are also the only crimes in which the victim’s behaviour is the focal point, as opposed to that of the accused.

Cape Town Gangs: Political Dimensions

Understanding the true nature and genesis of gangsterism in Cape Town is central to the success of the recently dispatched Anti-Gang Unit. This brief looks beyond frequently cited criminal and socio-economic factors.

The State Of The South African Refugee Protection Regime: Part II - Politics And Policy

This brief - the second in a three-part series - explores reasons for the deterioration of refugee protection in South Africa.

The State Of The South African Refugee Protection Regime: Part I - Current Status

Once applauded by UNHCR’s Antonio Guterres as ‘one of the most advanced and progressive systems of refugee protection in the world’, the South African refugee regime has deteriorated beyond recognition.This brief - the first in a three-part series - explores the state of protection and what it means for asylum-seekers within our borders.

Civil Union Amendment Bill, 2018: Parliamentary Submission

This brief summarises the Helen Suzman Foundation’s submission to the Committee.

Violence against women - Part II: Evaluation and recommendations

This 2-part brief series considers whether the law and society are working effectually to protect women from violence.

Violence against women - Part I: Case studies and legal mechanisms

This 2-part brief series considers whether the law and society are working effectually to protect women from violence.

Class Action Law Suits in South Africa

This brief considers the emerging legal field of class and group action law suits in South Africa. Previously uncommon and undefined in law, these cases are becoming more prevalent in the South African legal space.

Free Basic Services At The Municipal Level

On 30 September 2017, South African municipalities were collectively owed R143.6 billion by consumers, according to the latest National Treasury report on municipal finances. R101.6 billion of this amount was household debt. If consumer debt is limited to below 90 days, then the actual realistically collectable amount is estimated at R22.9 billion.

The preceding briefs in this series discussed definitional issues and set out international comparative information on domestic violence. This concluding brief will assess information on domestic violence in South Africa.

The first brief in this series discussed definitional issues related to domestic violence. This brief contains an annotated bibliography of international comparative sources.

This is the first brief in a series of three. It deals with definitional issues. The second brief will be an annotated bibliography of international comparative data on domestic violence, and the third will look specifically at the situation in South Africa

This brief by Charles Collocott deals with 3 inter-related topics and highlights the fact that the field is difficult to navigate because of a complicated set of rules which apply to black economic empowerment. It also points out that some of these rules often do not advance the interests of black participants and that an already complicated situation is further muddled by troublesome issues such as incompetence and corruption in the state’s procurement process.

This brief looks at the importance of social grants in sustaining the social fabric.

Widespread media attention has been devoted to the payment system for social grants following the end of the current service provider contract on 31 March 2017. This brief provides the background to the latest developments.

The Helen Suzman Foundation (HSF) recommends that the Hate Speech Bill should be withdrawn in its entirety. In this brief, Richard Griffin, summarises the HSF’s submission to the Department of Justice and Constitutional Development regarding the Bill.

In this brief, Matthew Kruger considers the majority judgment of the Chief Justice in the recent Tshwane street-naming case. Whilst acknowledging that morally-speaking the decision is probably correct, he expresses concern over the finding that people "must embrace the African philosophy of ubuntu" for them to be truly South African.

This Brief discusses the ruling of unconstitutionality of the Maidens Bursary Scheme policy.

For some time now our public discourse has been dominated by public intellectuals and other commentators whose opinions are characterised by a shrill, self-righteous certainty. In this brief, Matthew Kruger reflects on these issues, pleading for those who shape public debate to write with the kind of self-reflective humility that is possessed by those who are aware of their own limitations—who are aware of the possibility that they might be wrong.

On more than one occasion Helen Suzman spoke out against arbitrary and abusive laws criminalising the production and use of marijuana. In this series of briefs, we revisit these issues in three parts. In the first brief, Matthew Kruger provides some context, by commenting on the prosecution of a married couple for their production and personal use of medical marijuana. He also explores the neglected value of freedom, explaining that sometimes the state can only fulfill its duty to respect and protect our rights by leaving us alone. In the second brief, Arvitha Doodnath considers the science relating to and social impact of marijuana and debunks some common myths. The series concludes with Kimera Chetty considering how we should go about regulating actions that do in fact negatively affect the interests of others, but whose criminal prohibition would also cause harm to individuals and the community.

This brief deals with marital surname changes of women

Discussions about issues relating to race are often marred by little awareness of some of the more important differences between different forms of race-related expression. The conflation of concepts tends to generate much unnecessary disagreement on important practical and policy-related issues. With this in mind, I try to do three things in this three-part brief. First, I distinguish three forms of race-related expression: hate-speech, racism and hatred. Second, I outline how the Constitution deals with efforts to regulate each form of expression. Third, I consider four hypothetical examples of race-related expression, for the sake of illustrating the conceptual framework outlined in Part I of this brief, and suggesting how each might be regulated in a manner that is consistent with the points made in Part II of this brief.

Charles Simkins explores the Sociology of Romanticism in the context of Ferial Haffajee's book "What if there were no whites in South Africa?".

The recent criticism of the advocates’ profession for a lack of transformation has prompted the Minister of Justice, Michael Masutha, MP, to say that he will launch radical plans to make the Cape Bar, in particular, more demographically reflective of South Africa. This brief analyses the Minister’s comments.

This brief addresses transformation of the legal profession through the reformation of Legal Aid. This policy option may be unpopular in some quarters but could provide answers to the Bar’s problems. This brief is occasioned by correspondence between the author and a high-ranking official at Legal Aid, and demonstrates the need for radical policy thinking to address complex societal problems.

The recent decision of the Johannesburg Society of Advocates to implement a quota in favour of black/female advocates is, no doubt, well-intentioned. The Bar remains one of South Africa’s most untransformed professions. However, quotas may not be the magical silver bullet. In the short-term, it may provide immediate redress. But, long-term challenges will be how to widen access to, and guarantee retention within, the profession.

This Brief discusses the implications of the MIA v State Information Technology case on paternity leave

In light of recent comments by the Minister of Justice, and the interest garnered by the lack of black counsel in the Silicosis case, transformation of the legal profession is back in the spotlight. Reforming Legal Aid may be the first step in solving that dilemma.

This Brief serves as a continuation of a series which addresses the question; what is the State doing for the poor? It looks at the Expanded Public Works Programme by seeking to ascertain the track record of this State-led employment initiative.

This Brief is a continuation of a series which addresses the question; what is the State doing for the poor? It looks at the Expanded Public Works Programme by seeking to understand how this State-led initiative works.

This Brief is the second of a series tackling the question; what is the State doing for the poor?

An Exploration of South Africa's Ongoing Encounter with Xenophobia and the 'Other'

This Brief is the first of a series tackling the question; what is the state doing for the poor?

A considered view into the rights of persons in the context of South African common law over the last century, with emphasis placed on women's rights under the various systems.

The recent judgment of the Constitutional Court (CC) in the matter of South African Police Service v Solidarity obo Barnard [2014] ZACC 23 is noteworthy, not for what the application managed to achieve but, rather, for what it failed to.

The facts about income distribution in South Africa were set out in a previous brief. Here the focus will be on ways to think about it. Five guidelines are proposed.

To the lay mind, wealth and income often mean more or less the same thing. For economists, the terms are distinct. Wealth is the sum of all your assets less your liabilities and is a stock concept. Income is a flow and refers to what you receive in a given period, say a year. They are related, because income less consumption is an addition to wealth and wealth creates an entitlement to income in the form of interest, dividends, property rentals and the like, which form a component of income, alongside earnings and transfers (such as social grants).

The first 2014 Roundtable on Equity and Redress took place on February 6th. The event was chaired by the director of the Helen Suzman Foundation, Francis Antonie, and featured Lindiwe Mazibuko, Songezo Zibi and Eusebius McKaiser. This brief summarises some of the main themes of the evening.

This brief provides a summary of the HSF’s recent roundtable on the National Development Plan.

This brief analyses youth involvement in, and its relationship to, the Small to Medium Enterprises (SME) sector within the boundaries of the National Development Plan (NDP).

Recently, there has been a debate in the media about universal franchise. This brief outlines the history of the franchise in South Africa before Union (1910) until complete universal adult franchise in 1994.

This article presents some information on the problem of sexual offences, particularly against women, in South Africa. It also outlines government’s response to this problem. This brief represents preliminary research in the HSF’s broader project: Women in Society.

Inclusive growth is a term which has been and continues to be applied to describe the way forward for the South African economy. This Brief aims to interpret inclusive growth in conjunction with our future aims as stated in the National Development Plan (NDP) and the current growth path experienced.