Human rights and Private Law in South Africa

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The Department of Law is pleased to invite you to this lunch seminar which will feature two speakers on two topics around ‘Human rights and Private Law in South Africa’

Abstracts

The forgotten value of freedom: A foundation for imposing positive socio-economic rights obligations on private actors in South Africa by Tatiana Kazim

In South Africa’s liberation movements, the language of “freedom” featured centrally. But in the narrative that later formed around the constitutional negotiations, “freedom” was often associated with a narrow form of negative liberty or non-interference, with opposition to socio-economic rights and horizontality, and with the apartheid government. Correspondingly, the position of the liberation movements and their support for socio-economic rights and for horizontality was cast (or recast) in terms of equality or egalitarianism. The meaning of freedom as a constitutional value remains underdeveloped in the South African jurisprudence – especially as compared with the jurisprudence on dignity and equality – and has received relatively little scholarly attention. This paper thus explores the forgotten value of freedom as a key to unlocking the transformative potential of the constitution. In particular, it seeks to chart a course for courts (and litigators), showing how they might be bolder in imposing positive socio-economic rights obligations on private actors, while at the same time taking seriously the reasons for caution.

Human rights and private law in South Africa at 30: Much ado about nothing? by Leo Boonzaier

In this paper I offer an appraisal of South Africa’s experience with the so-called “constitutionalisation” of private law, which is now entering its fourth decade. The introduction of “horizontal application” of the Bill of Rights in the 1990s was greeted with much fanfare and has produced fevered debate and many celebrated Constitutional Court judgments ever since. Nevertheless, its significance has been distorted by unsound conceptual understandings, masked by fruitless debates about the distinction between “direct” and “indirect” application, and exaggerated by those wanting to celebrate and shore up South Africa’s “constitutional revolution”. In conducting a more sober assessment after thirty years, I argue that the constitutionalisation of South African private law can point to relatively few meaningful achievements. This is, in a way, unsurprising, since it reflects the limitations of human-rights discourse in general. Moreover, constitutionalisation has produced a significant cost, as competing sets of norms and modes of reasoning have been forced into an awkward co-existence. Managing the interaction between them is now the main focus of judicial and academic attention, again with uninspiring results.

About the speakers

Tatiana Kazim

Tatiana Kazim is the Research and Advocacy Lead at the Equality Collective: an activist and community-centred law project based in South Africa’s rural Eastern Cape. She is also a Research Associate at the Centre for Law and Society, University of Cape Town, and a doctoral candidate Stellenbosch University, where her research focusses on the obligations of private actors in relation to socio-economic rights.
Previously, she has worked as a secondee to the South African Department of Basic Education, assisting with reform of the law on early childhood development; a senior legal researcher at the Equal Education Law Centre; a research fellow at Public Law Project in London; a judicial assistant in the Court of Appeal of England and Wales; and a legal assistant on the Law Commission of England and Wales. Tatiana holds a BCL degree (LLM-equivalent) from the University Oxford; a BA in Jurisprudence from the University Oxford; and a BSc in Politics and Philosophy from the London School of Economics.

Leo Boonzaier

Leo Boonzaier is an Associate Professor in the Department of Private Law at Stellenbosch University, where he teaches delict, jurisprudence, and human rights and private law. He studied social science and law at the University of Cape Town and then did his graduate work at Oxford, culminating in a doctorate on the philosophical foundations of tort law. He is currently an Alexander von Humboldt Fellow working in the department of Prof Reinhard Zimmermann at the Max Planck Institute for Comparative and International Private Law.

Language

English.

This is a free event. Registration is mandatory.