Pierre Vos

Abstract: The title of this paper suggests there is a firm link between the jurisprudence on sexuality and gender authored by Justice Albie Sachs during his tenure on the Constitutional Court and the work conducted in the field that has become known as queer ...

Abstract: In this note we propose to deal, from a particular vantage point, with the Constitutional Court's judgment in Le Roux & others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC): we investigate ...

When fighting for the legalisation of same-sex marriage, it will be important to do so in a way which will not marginalise gay men and lesbians, who are ‘different’ from the heterosexual norm. A challenge merely based on a claim to formal equality must therefore be avoided at all cost if it is to stand any chance of success.

Extracted from text ... Access to anti-retroviral drugs post- Grootboom Pierre de Vos S outh Africa is facing a national health emergency. Between four and six million South Africans are presently living with HIV/AIDS and this number is still rising. From a medical perspective, any government response to this crisis should address ways in which HIV infections can be prevented, as well as ways in which people living with HIV/AIDS can be provided with access to appropriate treatment. There are several strategies that the government can and should employ to ensure that people living with HIV/ AIDS have access to appropriate treatment. One ..

... From heteronormativity to full sexual citizenship? : Equality and sexual freedom in LaurieAckermann's constitutional jurisprudence. Journal Title: Acta Juridica : Dignity, freedom and the post-apartheid legal order : the critical jurisprudence of Laurie Ackermann; Volume: Volume; ...

ABSTRACT This article deal with the right of access to health protected in section 27 of the South African Constitution and explores the ways in which this right places a duty on the state to provide better and cheaper access to anti-retorviral drugs to people living with HIV.

In this article l focus on one such group - social and economic rights - but in a way that rejects the traditional distinction between the various kinds of rights and embraces an understanding of the rights in the Charter as being truly interdependent and indivisible. I argue that the Charter is unique amongst regional human rights instruments in that it makes no distinction between various kinds of rights, and that the scope and content of these rights should therefore be interpreted in a way that makes sense for all the rights contained in the document. Although I therefore focus on social and economic rights, l do so with reference to all rights contained in the Charter.

The title of this paper suggests there is a firm link between the jurisprudence on sexuality and gender authored by Justice Albie Sachs during his tenure on the Constitutional Court and the work conducted in the field that has become known as queer legal theory. That such a link exists needs to be affirmed since there is perhaps no other South African judge whose jurisprudence has considered the question of the legal empowerment and/or emancipation of sexual minorities as seriously as that of Justice Sachs.

ABSTRACT A Chapter discussing the legal status and role of the Public Protector, the equivalent of the South African Ombudsman, tasked with investigating, reporting and taking remedial action regarding maladministration, corruption and unethical behaviour in government.

ABSTRACT In this working paper I engage with an article by Samantha Vice on the role of white South Africans in post-apartheid South Africa. I argue that an attempt by whites to avoid making mistakes and taking risks, and the focus on working on oneself and retreat from the public sphere, might well constitute an attempt to deal with the injustices – also racial injustice – of our country by trying to avoid the inevitable and by doing the impossible, namely to live well, to live a life that may be morally pure (or, to be fair, a life that is at least morally less tainted). The continued economic and social injustice in the country tracks race but goes beyond it. Merely focusing on one's race is not sufficient to deal honestly with one's whiteness. More is required, namely an engagement with the injustices. This not always going to be risk free and it is not always going to be easy or morally pure for white South Africans. It will require us to engage with the “horrors of our time”, to take risks and to fall into conflict and will require us to face the full horrors of our existence in this strange place. It will expose us to the chaos of the universe which may vibrate into your bodies – and we might well, from time to time feel and look like the tormented human flesh of a figure in a Francis Bacon. But that is what is required of us as full citizens in this democracy in the making.

This article explores the question raised in an important South African Constitutional judgment about the extent to which Rastafarians may be exempted from the general prohibition on the possession and use of cannabis (dagga) on the grounds of religious freedom.

ABSTRACT In the case of Nyathi v Members of the Executive Council for the Department of Health Gautentg, the South African Constitutional Court declared invalid section 3 of teh State liability Act which prohibited the attachment of state property to satisfy a judgement debt. The case deals with questions about respect for the Rule of Law and the possibile limits of the power of courts to ensure that state officials and institutions obey court judgements.

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The robust protection of freedom of expression is not well-served by the assumption that the regulation of free expression may never take into account the content of the expression being regulated. The assumption fails to acknowledge that some forms of expression are far more valuable and in need of protection in a democracy than others. It also fails to acknowledge that some forms of expression threaten democracy and the dignity of those who live in it. The idea of a content neutral approach to the protection of freedom of expression should, therefore, be rejected as it is not useful for the effective protection of freedom of expression in a democracy that respects human dignity and diversity. To the extent that free expression is believed to operate in a free marketplace of ideas, it furthermore fails to identify (and may even mask) some of the most pressing threats posed to a thriving free expression culture. Instead, turning to the South African Bill of Rights – with its general limitation clause – will provide for a far more nuanced and effective approach to the possible limitation of free expression, provided that certain important safeguards are put in place. The article therefore argues that we should reject the metaphor of the free marketplace of ideas and should, instead, turn to the idea that freedom of expression’s protection depends to some extent at least on whether it advances, protects or reflects the values that form part of the ‘objective normative value system’ embodied in the South African Constitution. The article concludes by arguing that the problems raised by the metaphor of free marketplace of ideas can at least partly be addressed by reimagining freedom of expression as a right that places not only negative obligations on the state to refrain from interfering with the right of individuals to receive and impart information and ideas, but also as a right that places positive obligations on the state to take steps progressively to extend the ability of individuals to receive and impart ideas and to access a more diverse array of information and ideas.

An article on the Supreme Court of Appeal judgment in Prince v President of the Law Society of the Cape of Good Hope and Others 2000 7 BCLR 823 (SCA), dealing with the freedom of religion of Rastafarians to smoke cannabis. The article advocates a more expansive protection for religious diversity.

When fighting for the legalisation of same-sex marriage, it will be important to do so in a way which will not marginalise gay men and lesbians, who are ‘different’ from the heterosexual norm. A challenge merely based on a claim to formal equality must therefore be avoided at all cost if it is to stand any chance of success.

South Africa's democracy has both representative and participatory elements. The participatory aspect of democracy enhances the civic dignity of citizens by empowering them to take part in decisions that affect their lives. However, the overbearing role that political parties play in the South African democracy runs the risk of limiting the ability of citizens to participate effectively in decisions that impact on their lives. This is because the leaders of political parties (especially of governing parties) may wield enormous power and influence inside their respective parties and in the legislature and executive. Where the ordinary members of parties have little or no direct say about the formulation of the policies of the party they belong to or the election of its leaders or those who will stand for election as public representatives at national and provincial level, the ability of such members to participate in democratic processes and decisions are limited. To facilitate the participation of party members in the activities of a political party to ensure the enhancement of their civic dignity s 19(1)(b) of the Constitution guarantees the right of every citizen freely to make political choices, including the right to participate in the activities of, or recruit members for, a political party. In Ramakatsa v Magashule the majority of the Constitutional Court affirmed the importance of the right of party members to participate freely in the activities of the political party they belong to and also found that the constitutions of political parties have to ensure this happens. Provisions of a political party's constitution can be declared invalid if it fails to comply with the provisions of the Bill of Rights (including s 19(1) (b)). This article contends that Ramakatsa can be interpreted to place a positive duty on the legislature to pass a 'party law' that sets minimum requirements to protect the democratic participation of party members in the activities of the party – including about the formulation of party policies, the election of party office bearers and the selection of the party's candidates for election as public representatives.

Invoking the human rights discourse and attempting to rely on human rights based mechanisms to deal with this metaphoric or literal expulsion from the polity can be ineffectual or, worse, counter-productive. This problem is exacerbated in countries in which the very idea of human rights can be stigmatized as part of a neo-colonial project aimed at imposing ‘Western’ values on the population of a country already devastated by colonial conquest and continuing globalization. (Often well-meaning) Western donors, Western governments and Western-based NGOs typically invoke a human rights paradigm when they challenge attitudes and practices in various countries on the African continent where sexual minorities are marginalized and made vulnerable and where they are exposed to legal sanction and violence by the state or private individuals. However, I ask whether this approach is strategically the most effective to begin the process of the emancipation of sexual minorities in such settings. ...

The dignity of individuals who experience same-sex sexual desire or act upon such desire is seldom fully respected by
the law and by other citizens. Although human rights are often invoked as part of an emancipatory strategy aimed at
restoring the enjoyment of full citizenship for all sexual minorities, the potential success of such a strategy remains in
doubt in many parts of the world – also in most parts of the African continent. In this article the author argues that
there are at least three powerful reasons why invoking a human rights discourse as an emancipatory tool for those who
experience same-sex desire is particularly difficult on the African continent. First, as members of sexual minorities
become more visible and as individuals who experience same-sex desire and engage in same-sex sexual acts
increasingly become associated with the notion of ‘homosexuality’ (as an identity) – as a fixed, universally applicable
Western creation – same-sex desire is increasingly being characterised – especially by politicians and African elites – as
being ‘un-African’, a Western imposition, something that did not exist on the continent before the colonial (or
neocolonial) encounter. The human rights framework can then be depicted as attempting to impose acceptance of
these ‘un-African’ tendencies on a vulnerable community whose traditional values and practices have already been
decimated by colonialism. Second, this dynamic is exacerbated by the fact that the human rights discourse is often
invoked by Western governments and the media in terms of a discourse of modernity and progress: those countries
that recognise the rights of sexual minorities are considered modern, which by implication casts those countries that
do not as un-modern or pre-modern. Lastly, individuals who experience same-sex desire are often stigmatised as only
half human, as ‘pigs and dogs’, as creatures who cannot ever be full citizens and are therefore not entitled to the
protections offered by human rights. In the light of these difficulties, the author proposes tentative strategies to
engage in the struggle for the emancipation of sexual minorities centred around the notion of human dignity.

In countries where sexual minorities are branded as somehow outside the polity because they are believed to be (or depicted as) subhuman or as engaged in practices that are alien to the nation, it can be strategically deeply problematic to invoke the human rights paradigm to fight for their emancipation. The  protection of human rights matter most to those who have nothing but their mere existence as human beings to protect them, those who are defined as outside the polity, as metaphorically or literally stateless. However, those of us who
are branded as pigs and dogs, as agents of alien ‘un-African’ beliefs and practices, and hence as falling outside the definition of the nation or even the polity, can easily be branded as not deserving of any protection and thus not covered by human rights protection. Invoking the human rights discourse and attempting to rely on human rights based mechanisms
to deal with this metaphoric or literal expulsion from the polity can be ineffectual or, worse, counter-productive. This problem is exacerbated in countries in which the very idea of human rights can be stigmatized as part of a neo-colonial project aimed at imposing ‘Western’ values on the population of a country already devastated by colonial conquest and
continuing globalization. (Often well-meaning) Western donors, Western governments and Western-based NGOs typically invoke a human rights paradigm when they challenge attitudes and practices in various countries on the African continent where sexual minorities are marginalized and made vulnerable and where they are exposed to legal sanction and violence
by the state or private individuals. However, I ask whether this approach is strategically the most effective to begin the  process of the emancipation. The difficulty is exacerbated by the fact that I would have been classified as ‘white’ by the apartheid state that I am male identified, and that I am a constitutional law scholar, as it may well be argued that by writing about the topic at all, I am practicing a form of
neo-colonialism.  By posing this question I am not making an absolute claim that in certain settings, human rights cannot be
effective to advance the struggle for the emancipation of sexual minorities. I deliberately leave that question open. Instead, I ask whether there are ways in which one might engage in such discussions and in struggles for the emancipation of sexual minorities that take cognizance of the history of human rights and the complex set of power relations within which such struggles occur? If there are such avenues for strategic engagement, what might they be?

A review article on the passing of Nelson Mandela and the complex question of how to deal with corruption in South Africa: My tentative response is that it is important not to undermine the rule of law, and to insist that all wrongdoers be treated in the same manner. It is also important to prosecute he corrupt, and for those convicted to be punished  appropriately. This does not require one to take a vindictive delight in the fall of others. Neither does it preclude one from having compassion and understanding for those who strayed and have been caught. Understanding why somebody did something need not translate into condonation of what they did.

South Africa's Constitutional Court handed down the judgment in Minister of Home Affairs v Fourie, confirming that the right to marry is an inalienable right that belongs to all who live in South Africa — black or white, gay or straight — and that gay men and lesbians can only be affirmed as full and equal members of our society if this right is also fully extended to them. This being the case, the majority of the court (per Sachs J) held that it would be important first to afford Parliament the opportunity to cure the unconstitutionality of the existing law. This article engages critically with this decision and with the subsequent events that led to the adoption of the Civil Union Act which extended full marriage rights to same sex couples in South Africa.

At the end of 2006 South Africa became the first country in Africa to extend full marriage rights to same-sex couples. After a successful Constitutional Court challenge to the exclusion of same sex couples from the common law definition of marriage and the failure of the Marriage Act to provide for same-sex marriage, the South African Parliament reluctantly passed the Civil Union
Act to extend marriage rights to same-sex couples who were until then denied the right to marry. This would not have been possible if the South African Constitution4 did not explicitly prohibit discrimination on the basis of sexual orientation' and if the Constitutional Court had not ruled in several cases6 that this meant that same-sex relationships deserve equal protection and respect and that same-sex couples are equally capable of forming caring long-term relationships and of raising children in a loving and caring environment. In this article the writer explored the important role played by South Africa's Constitutional Court in effecting this legal change.

The title of this paper suggests there is a firm link between the jurisprudence on sexuality and gender authored by Justice Albie Sachs during his tenure on the Constitutional Court and the work conducted in the field that has become known as queer legal theory.1 That such a link exists needs to be affirmed since there is perhaps no other South African judge whose jurisprudence has considered the question of the legal empowerment and/or emancipation of sexual minorities as seriously as that of Justice Sachs. Yet, as we suggest in this paper, there is good reason to insist on putting the word ‘queer’ in inverted commas when it is used to describe Justice Sachs’ jurisprudence on gender and sexuality. As we read it, this is the case because there is a tension throughout this jurisprudence that causes the jurisprudence to be ‘queer’ in at least two senses of that word.

This paper examines the gap in South Africa between the constitutional promise of safeguarding the rights of prisoners and the reality. Focusing on the question of whether litigation may advance the cause of prisoner's rights, it raises concerns about the  manner in which prison authorities deal with such litigation.

Two white male Afrikaans gay academics decide to respond to a call for papers to be presented at a conference with the theme “Gardens of justice” in Stockholm, Sweden in 2012. In the course of their attempt to co-author an academic paper on the history
of the struggle for sexual minority freedom in South Africa, they are confronted by their own histories, contradictions, literary influences and context - confrontations that ultimately mirror the instability of subjectivity and the valences of a critically queer positionality in post-apartheid South Africa.

Chapter 9 of South Africa's 1996 Constitution establishes, amongst others, the office of a Public Protector. While the office fulfils some of the task usually associated with an Ombudsman, it does more than that. But what is the legal status of the findings and remedial action imposed by the Public Protector? In the light of the findings that President Jacob Zuma was unfairly enriched by state sponsored renovations of his private home and that he was obliged to pay back a reasonable amount of this money, and the President's challenge of this findings, I explore the issue.

Many individuals who form same sex intimate relationships argue that the social and legal protection associated with heterosexual marriage should be extended to their relationships. This is  understandable because marriage in South Africa remains the
focal point for the protection and regulation of the interests of individuals who engage in intimate relationships of any kind. However, merely extending marriage rights to same sex couples whose relationships mirror the idealised heterosexual norm will be
problematic. Because of homophobia and prejudice many  individuals in same sex  intimate relationships will not be able to freely ‘choose’ to get married. Others will form intimate relationships that will not be recognised because they will be
insufficiently similar to the traditional heterosexual notion of marriage. Those who do not marry will therefore once again be marginalised and the law will once again fail to protect the weaker and more vulnerable partners in such relationships. The early
case law of the Constitutional Court recognised that the right to substantive equality entails a right to equal concern and respect across difference and thus hinted that not only marriage like intimate same sex relationships, but also non traditional forms of
suchrelationships should be constitutionally protected and respected. However, later judgments seem to suggest that intimate relationships that stray too far from the model of traditional heterosexual marriage, are less worthy of respect and protection. This narrow conception of what constitutes worthy intimate relationships is deeply problematic, not only for individuals in non traditional same sex relationships but also for the millions of individuals in different sex relationships who are not married,
because it marginalises them and fails to extend legal protection to some of the most vulnerable members of society. The legal regulation of intimate relationships should therefore completely move away from the marriage model and should instead be based
on a functional model which takes account of the unequal power relations in intimate relationships.