A budding author bold enough to have sent his manuscript to Dr Samuel Johnson for appraisal received a reply, so the story goes, in these terms: ‘Sir. Your work is both original and good. Unfortunately the part that is good is not original. And the part that is original is not good. I find it difficult to say anything new or original about the lovable man whose life we celebrate this afternoon and whose memory we thus keep alive. For so much has been said in the tributes previously paid to him, tributes testifying to the place he occupied in the hearts of countless South Africans. What is good should prove easier, however, when it is said of someone whom, at the ceremony held in court soon after his death, Ralph Zulman described, simply and truly, as a good man. So, be it said how it may, what I shall say today about Ernie Wentzel feels good to say. Unless someone who is now a lawyer was acquainted with Ernie during his childhood or schooldays, I can rightly claim, I believe, that none still around knew him for more years than I did. Our long friendship may explain why John Dugard honoured me with the invitation to deliver this lecture. It was certainly my reason for accepting the invitation with alacrity. Ernie and I first met each other 37 years ago, in 1951, when he entered the University of Cape Town, where I too was a student. I happened to be his senior by two years. But I soon got to know him well, for we had a lot in common. We were both enthusiastic student politicians. And we were in the same camp. Our time together on the campus was one of turmoil, not as acute as that which campuses have experienced subsequently, but intense nonetheless since, in addition to all the other strife of the period, the Universities of Cape T own and the W itwatersrand were under an attack that was constant and fierce for their policy of admitting students of every race, and they faced the threat of legislation forbidding them to accept any who was not white without official pennission.

The professorial inaugural lecture is for the university an occasion to celebrate - celebrate in the full meaning of the word, i.e. to perform publicly and duly, to observe and honour with rites and festivities, to publish abroad, praise and extol. Through the custom of the inaugural lecture the university celebrates and affirms its basic function, that of creating, preserving, transmitting and applying knowledge, particularly scientifically-based knowledge. The university appoints to the position of professor one who has attained excellence in the handling of knowledge in her or his discipline, and through a jealous watchfulness over the dignity and esteem of this time-honoured position of excellence amongst scholars, defends the capacity of the university to advance human knowledge and human progress. The University of the Western Cape is particularly honoured to celebrate by way of this address the inauguration of its first ever Professor of Human Rights Law. We take pride from both the position and the incumbent: the post demonstrates our commitment to scholarly relevance, the incumbent to the pursuit of excellence. This university has distinguished itself amongst South African educational institutions for the way that it has grappled with questions of appropriate intellectual and educational responses to the demands of the social and political environment. That search involved debates and contests over what constitutes knowledge or valuable knowledge, over the nature of the process of knowledge production, over the relationship between theory and practice, about autonomy and accountability, about the meaning of "community" and about how the activities of a university are informed by the definition and conception of "community". The decision to establish a chair in Human Rights Law was arrived at as part of that process of searching for the appropriate forms of curricular transformation. South African society with its history of colonial conquest and latterly apartheid rule is one bereft of a rights culture; and where the discussion of a bill of rights and the general establishment of an awareness of human rights had been started in recent times, it has often been motivated by a concern with the protection of traditionally advantaged sectors of society. A university like ours has an obligation to contribute to the debate about and the promotion of human rights in ways which will also be concerned with healing, reparation and reconstruction in this severely brutalised nation. In this address marking his formal assumption of the University of the Western Cape’s Chair in Human Rights Law, Kader Asmal gives testimony of the depth of scholarly rigour and the breadth of humane concern brought to and emanating from this position. The integral coming together of Asmal the international scholar, the anti-apartheid activist of long standing, the seasoned international solidarity worker, the spirited publicist is evidenced in this address which is sure to stand as a signal point of reference in our national debate about this complex subject. The University had been privileged to attract to its staff some of the finest scholars from the ranks of the formerly exiled South Africans; this inaugural ceremony provides the institution with the opportunity to welcome into its midst one of those in the person of Kader Asmal. / Publications of the University of the Western Cape ; series A, no. 64

LL.M. / Constitutions seldom protect the right to occupational freedom by name. When they do, the right is cast in a choice / practise mould or is protected with reference to a right to a livelihood. There is a lot of overlapping between this right and the other rights protected in the South African Constitution. For this reason it is sometimes asked if it is at all necessary to protect the right to occupational freedom by name in the Constitution. There are two considerations in favour of inclusion of the right in the Constitution. The first one is historic — in view of the previous serious human rights violations, it is important to also include this right in the Constitution. The second consideration centres around the importance of the right, where it relates to an activity that occupies an enormous amount of time and very often provides the main, if not the only, source of sustenance to the individual and his or her family. In terms of section 22 of the Constitution, only citizens can be bearers of the right. Whether juristic persons can also be regarded as citizens for purposes of this article, is a difficult question. It is suggested that a wider interpretation of the definition of a citizen is possible that would include juristic persons. This definition is derived from the Constitution itself, rather that from the terms of the Citizenship Act. If the Court finds that a juristic person cannot be regarded as a citizen, the juristic person should be able to turn to other rights in the Constitution that it can be a bearer of, for the protection of its right to occupational freedom. The right to occupational freedom encompasses a wide palette of activities that can all be embraced by the term "occupation". An occupation has two main characteristics: it is practised for a fixed period and provides income to an individual. The economic or social value of the occupation, or its lawfulness or harmfulness to society cannot be used as criteria to exclude a particular activity from the right's field of protection. It is submitted that section 22, despite decisions to the contrary, protects both the choice and the practice of an occupation. A different interpretation would render the right meaningless: it does not make sense to protect the right to choose an occupation, without also protecting the act with which the activity is made externally distinguishable. The fact that the section expressly provides for the regulation of the practice of an occupation would imply that this aspect of the right is also protected. Because the state is bound by the provisions of the Bill of Rights, it has the duty to protect, promote and fulfil the rights. There is however no positive duty on the state to provide work. The right to occupational freedom can also feature in private relationships. The justification of a limitation on the right presents a number of problems. It should firstly be emphasised that the second sentence in section 22 does not constitute a socalled "claw-back clause". Such an interpretation would not be in accordance with the supremacy and the justiciability of the Constitution. The second problem relates to the finding of a proper yardstick to evaluate the justification of limitations on the right. It is suggested that a rational connection test, as is applied in the United States in the case of economic regulation, is too narrow to provide for the wide array of scenario's and activities that is encompassed by the right to occupational freedom. This right provides a battlefield on which difficult choices must be made regarding the weighing of the (sometimes) very important interests of the individual against the, equally important, function of the state in regulating the economy. The situation is even more complicated when two private actors enter the scene, where both may claim protection under the right at the same time. For this reason, it is submitted, that a differential approach must be followed. The general limitation clause with its list of factors provides a very useful tool in this regard. The German Stufenlehre provides an example of how the requirements for a valid limitation can be adjusted to cater for varying degrees of intensity in the factual limitation of the right. The Stufenlehre classification of objective and subjective limitations on the choice of an occupation and measures relating to the practice of an occupation, may also be useful. This classification reflects the formal structure of section 22 and takes the distinction between the choice and practice of an occupation into account. The fact that only the latter incorporates a specific limitation may reflect the intention of the legislature to ease the requirements for the justification of an infringement on this aspect of the right to occupational freedom. The intensity of the infringement and the subsequent level of justification required must be determined separately in the case of each set of facts, while always applying section 36 of the Constitution.

With this piece of work an attempt is made to have a objective evaluation of the influence of South Africa's Bill of rights on the common law of Defamation. the following aspects are being highlighted: The general application of the Bill of Rights and its relevant sections; A comparative study of the application of Bill of Rights with special reference to the United States, Canada, India and Germany; The law of Defamation under a new legal order, with specific reference to whether the Bill of Rights does apply to Defamation and if so how will it change the current common law of Defamation. / Text in Afrikaans / Law / LL.M.

Text in Afrikaans / Constitutional, International & Indigenous Law / LLM

Thesis (LLD)--University of Stellenbosch, 2002. / ENGLISH ABSTRACT: The central issue which is considered in this thesis is the meaning of the constitutional guarantees of religious rights and freedoms in South Africa. In other words, it is concerned with the functions of the state, through its laws or conduct, in respect of religion and with its relationship towards the institutional church or religious community. It is argued that religious freedom is, in fact, a bundle of rights and freedoms. The "essential rights and freedoms of religion" which constitute this "bundle" are identified in the context of the historical development of religious rights. It is shown that religious rights theories have developed in the West which include concepts of freedom of conscience, the right to freely exercise religion, accommodation of pluralism of a confessional and institutional nature, equality of all religions before the law, nondiscrimination on the grounds offaith, institutional separation of church and state and some separation of state (or law) and religion. It is maintained that no single principle could by itself guarantee religious freedom and that these rights and freedoms are mutually. supportive of and mutually subservient to the highest goal of guaranteeing religious freedom. These essential rights and freedoms are therefore treated as constituting minimum standards for the protection of religious freedom and it is argued that religious freedom as protected in the South African Constitution should be interpreted to incorporate these multiple principles. It is shown that, prior to the promulgation of the interim Constitution the essential rights and freedoms of religion were not adequately protected in South Africa and that the constitutional entrenchment of these essential religious rights was necessitated by various factors in the preconstitutional South African society. The position with regard to religious rights and freedoms in post-Constitutional South Africa is considered by briefly sketching the broader constitutional context and by assessing the constitutional clauses protecting religious rights to determine whether the essential rights are protected. The religious rights provisions in the Constitution are analysed in detail in order to determine how they should be interpreted and implemented to ensure adequate protection of the essential rights and freedoms of religion in South Africa. / AFRIKAANSE OPSOMMING: Die sentrale vraagstuk wat in hierdie proefskrif ondersoek word is die betekenis van godsdiensregte en vryhede wat in die Grondwet verskans word. Dit ondersoek die funksie van die staat, hetsy deur wetgewing of staatsoptrede, ten opsigte van godsdiens en ten opsigte van kerke of godsdiensgroepe. Daar word geargumenteer dat godsdiensregte inderdaad uit 'n aantal regte, oftewel, 'n bondel regte, bestaan. Die essensiële regte en vryhede van godsdiens wat hierdie bondelopmaak word geïdentifiseer met verwysing na die historiese ontwikkeling van godsdiensregte. Teorieë van godsdiensregte het in die Weste ontwikkel wat die volgende essensiële regte en vryhede insluit: vryheid van gewete, die reg om godsdiens vrylik te beoefen, akkommodasie van pluralisme, gelykheid van alle godsdienste en nie-diskriminasie op grond van godsdiens, institusionele skeiding van kerk en staat en gedeeltelike skeiding van staat en godsdiens. Die argument lui verder dat 'n enkele beginsel nie opsigself godsdiensvryheid kan waarborg nie en dat hierdie regte en vryhede mekaar wedersyds ondersteun en tesame die doel van godsdiensvryheid dien. Die essensiële regte en vryhede van godsdiens word daarom behandel as minimum standaarde vir die beskerming van godsdiensvryheid en daar word 'n saak uitgemaak dat godsdiensvryheid in die Suid-Afrikaanse Grondwet geïnterpreteer behoort te word as synde hierdie veelvuldige beginsels in te sluit. Die proefskriftoon dat die essensiele regte en vryhede nie voor die inwerkingtreding van die interim Grondwet in Suid-Afrika genoegsame beskerming geniet het nie en dat die konstitusionele verskansing daarvan deur verskeie faktore in die pre-konstitusionele Suid- Afrika genoodsaak is. Die posisie na die inwerkingtreding van die Grondwet word geëvalueer deur kortliks die breë grondwetlike konteks te skets en vas te stelof die artikels in die Grondwet wat met godsdiens handel, inderdaad die essensiele regte en vryhede van godsdiens beskerm. Hierdie artikels word in diepte geanaliseer ten einde te bepaal hoe hulle geïnterpreteer en geïmplementeer behoort te word ten einde die essensiele godsdiensregte en vryhede genoegsaam te beskerm.

Afrikaans text. / Public, Constitutional, & International / LLM

Afrikaans text. / Public, Constitutional, and International / LLM

Text in Afrikaans / Constitutional, International and Indigenous Law / LLM

M.A. (National Strategy) / Please refer to full text to view abstract