The Judical Officer - Dec 07 - Joasa.org.za

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32 In the mentioned Ha Harksen Ha rksen v Lane Lane, Lane it was decided that UNFAIR discrimination discrimination discrimination is discrimination with an unfair IMPACT on the VICTIM of of of the the the discrimination discrimination. discrimination (The author is of the opinion that his conception of sociology of law will enable the Constitutional Court and other courts to determine such IMPACT on the said victim victim of discrimination.) Unfair discrimination principally means treating people, who are inherently equal in HUMAN DIGNITY DIGNITY, DIGNITY differently in a way which impairs impairs impairs impairs these people’s fundamental HUMAN DIGNITY as human beings (De Waal et al 1999:201). In S S S v v Makwanyane Makwanyane 1995(3) 1995(3) SA SA SA 391 391 (CC) (CC); (CC) 1995 (6) BCLR 665 (CC) the Constitutional Court emphasized that human dignity and the right to life are the most most important important important (human or) fundamental rights in the Bill of Rights (De Waal et al 1999: 217)(cf. par 6.8.1). In Harksen Harksen v Lane Lane the Constitutional Court held that the following factors factors must be taken into account in determining whether discrimination has an unfair IMPACT on the the VICTIM of of discrimination discrimination: discrimination (1) [i] The complainant’s position in society; and ? [ii] Was this complainant in the past a victim of discrimination (The latter appears to be a very important consideration. Why ? Because almost 100% of ALL WHITE WHITE WHITE males males, males [with the exclusion of the “medical unfit or disabled”,] which is currently the main “target-victims” of affirmative action policies, were before 1994 forced to do 1-4 years [i.e. lost 1-4 years of their lives] of compulsory military service (Rapport, 19 December 1999:20). Thousands of these white males died . Further, many of these white males suffer today from physical mutilation or injury due to the [apartheid] compulsory military service. Many of these white males and their families still suffer from psychological injuries due to this compulsory military service - cf Rapport, 19 December1999:20. Please note that none none none none of the so-called “non-
33 white” males nor women [from any “colour”] was forced to do such compulsory military service. Here the implication thus appears to be that most of these WHITE males males, males which is currently the main “target-victims” of affirmative action, were in the past victims of discrimination.) (2) [i] The nature of this discriminating conduct or provision; and provision. [ii] The purpose sought to be achieved by this discriminating conduct or (3) [i] The extent to which this discriminating conduct or law impaired the complainant’s fundamental right right; right and complainant’s [ii] Did the discriminating conduct or law impair the fundamental HUMAN DIGNITY ? The CUMULATIVE CUMULATIVE effect effect of these factors determine whether the discrimination will have an unfair IMPACT on the VICTIM of the discrimination discrimination. discrimination According to the Constitutional Court, these factors must be assessed objectively (De Waal et al 1999: 201). In this regard the author is of the opinion that his concept of sociology of law will be able to assist the courts with this objective assessment. Why ? Because (1) the author applied Berger’s phenomenological approach in the author’s conception of sociology of law (Steyn 1997), and (2) phenomenology can be classified as an objective objective [i.e. value-free] epistemology (Steyn 1997:5). The author’s proposed sociology of law also relates to the implied plea of De Waal et al for a sociology of law. Why ? Because to determine whether the violation of a fundamental right did occur, the court NEEDS SOCIOLOGICAL data with regard to the impact impact of the legislative restriction on society (De Waal et al 1999:143). And in this regard De Waal et al (1999:78) acknowledges that the courts are not able * to ascertain the needs of society; and * to respond respond to these needs of society.
Page 1 and 2: 1 THE JUDICIAL OFFICER Journal of t
Page 3 and 4: 3 THE JUDICIAL OFFICER - GUIDELINES
Page 5 and 6: 5 (3) POLITICS OF LAW which, in the
Page 7 and 8: . 7 Consequently, full recognition
Page 9 and 10: The Constitution stipulates that *
Page 11 and 12: * the Bill of Rights, as the result
Page 13 and 14: * under the doctrine of parliamenta
Page 15 and 16: 5 5 THE THE SUPREMACY SUPREMACY CLA
Page 17 and 18: 17 such an amendment: contrary to t
Page 19 and 20: 19 * the purpose of this limitation
Page 21 and 22: 21 Section 172(1) of the Constituti
Page 23 and 24: 23 * if a statute prescribes ground
Page 25 and 26: 25 Please note that according to Br
Page 27 and 28: (6) sex; (7) ethnic or social origi
Page 29 and 30: 29 With regard to the mentioned nat
Page 31: manner. 31 * to affect a person adv
Page 35 and 36: in terms of the remarked results. *
Page 37 and 38: 37 “In the Public Servant’s Ass
Page 39 and 40: 39 * relates to the onus of PROOF a
Page 41 and 42: 12.1 12.1 Section Section 26(1) 26(
Page 43 and 44: 43 that a human right has been infr
Page 45 and 46: 45 Schwikkard, PJ., Van der Merwe,
Page 47 and 48: 47 In the oft quoted case of Richte
Page 49 and 50: 49 In Kanis v Kanis 1974 (2) SA 606
Page 51 and 52: 51 JUDICIAL IMMUNITY: THE CIVIL AND
Page 53 and 54: 53 This is just an article to set o
Page 55 and 56: 55 The irregularity in the proceedi
Page 57 and 58: 57 In Moeketsi v Minister van Justi
Page 59 and 60: And: 59 ‘To sum up: In different
Page 61 and 62: 61 it is the existence of mala fide
Page 63 and 64: 63 a sjambok for contempt of court
Page 65 and 66: 65 punishment took place not in ter
Page 67 and 68: 67 in elke saak waarin hulle per ab
Page 69 and 70: 69 There are many aspects that come
Page 71 and 72: 71 delivered the judgment for the m
Page 73: 73 Cases of indecent assault do not

The Judical Officer - Dec 07 - Joasa.org.za

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