My first post consists predominantly of cases and legal readings as I am an avid law student and this is a law blog after all. The cases I have listed here are all landmark in that they were the first cases to deal with various constitutional issues, specifically rights in the Bill of Rights. I have however included a book as well as one cannot only read cases rooted in objectivity, but must also understand human subjectivity to truly understand the operation of the law.
This book illuminates the life and perspective of Edwin Cameron who rose through the ranks of the judiciary under the apartheid government, all the while trying to fight an oppressive system from within. The book touches upon Cameron’s childhood hardships, struggles with sexuality, and HIV stigma. Cameron’s account illustrates the power and limitations of the law coupled with his own life experience, following his rise from poverty to a Justice of the Constitutional Court. This book is a fascinating and inspiring read as it shows the rise of a man to one of the most prominent seats of power in our country despite battling stigma, and how he used that power for social transformation once he acquired it.
This case was a landmark case and one of the first prominent judgments of the Constitutional Court. Makwanyane dealt with the constitutionality of the death penalty, which was found to be unconstitutional on the grounds that it violated the rights to life and dignity (which were found to be linked). Prison was found to be a less restrictive means of achieving the same purpose as the death penalty, namely the prevention of violent crime and the prevention of repeat-offenders. The death penalty was thus abolished from South African law, despite the fact that the general public approved it as our courts are courts of law, not public opinion. The case also dealt with the incorporation of African values such as Ubuntu into South African law. This case is probably the most famous case in South African law and is still quoted to this day as the principles regarding the link between the right to life and dignity, as well as the principles of restorative justice, sit at the core of our Constitution. It is a very fascinating case for anyone, regardless of their field of study.
This case is an extremely famous judgment of the Constitutional Court in which the court found that the common law offence of sodomy to be unconstitutional on the ground that it discriminated unfairly against homosexual men on the basis of their sexual orientation. The court also held that as a minority group, homosexual men need to be protected as they have been historically targeted and that the continued criminalisation of sodomy was a violation of their right to dignity. The judgement has been viewed as part of a growing acceptance of difference in an increasingly open and pluralistic South Africa, something that sits at the very core of our ideal society and aspirations for the future.
This case dealt with the extension of the common law definition of rape. Prior to this case, the common law definition of rape was not unconstitutional in that it “criminalised conduct that was clearly morally and socially unacceptable”, however the court held that the definition needed to be appropriately adapted because it fell short of the spirit, purport, and objects of the Bill of Rights. This is because the common law definition of rape fell short of the right to equality as men were not included in the original definition. As such, the common law definition of rape was extended from the non-consensual penetration of a penis into a woman’s vagina to the non-consensual penetration of a penis into a person’s anus or vagina. The court found that it was possible, when the interests of justice required it, for the appropriate courts to develop the common law prospectively only. The court found that should the common law be extended retrospectively, it would offend the principle of legality as “it would be unfair to convict an accused of an offence in circumstances where the conduct in question did not constitute the offence at the time of the commission”. As such, the accused was not convicted for anal rape as it was not a crime at the time of commission. This case is of particular interest as aside from permitting men into the definition of rape, it shows us the way in which the law is applied: prospectively.
This case, much like Makwanyane, concerned the right to dignity as corporal punishment was found to be a violation of this right and was accordingly struck down. The decision was taken with respect to five different cases in which six juveniles were sentenced by various magistrates to receive a number of strokes with a light cane as “moderate correction”. The court also found that corporal punishment was inconsistent with the Interim Constitution insofar as it violated the right of protection against cruel, inhuman, or degrading punishment. This case gave rise to the promulgation of the Abolition of Corporal Punishment Act 33 of 1997 and is something that has governed my schooling life as thanks to this case, I have never been subject to such treatment. It changed the way in which we think about discipline.