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

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38 * then an onus of REBUTTAL rests upon the respondent to rebut the presumption. (6) The onus of REBUTTAL means that the respondent must establish (show) that there is a CAUSAL relation between * the affirmative action programme programme; programme and * the purpose of the affirmative action programme. (7) This CAUSAL relation means that the respondent must establish (show) that both * the affirmative action programme programme; programme and * the purpose of the affirmative action programme are reasonably able to correct the disparities of the past. The implication appears to be that unplanned and reckless affirmative action programmes * will be unfair discrimination in terms of race race and gender gender [i.e. unconstitutional]; and * will consequently be declared invalid invalid. invalid Please note the following: Harksen v Lane NO * was decided by the Constitutional Court Court; Court and * relates to the phases with regard to an enquiry into the violation of section 9 of the Constitution. The Public Servant’s Association Association case * was decided by the High Court Court (Transvaal Provincial Division); and
39 * relates to the onus of PROOF and the onus of of REBUTTAL when an affirmative action programme is disputed. The implication thus appears to be that the Public Public Servants Servants Association Association Association case COMPLIMENTS (and not contradicts) the Harksen v Lane case. It is imperative to note that different categories of (human or) fundamental rights exist. 10 10 CATEGORIES CATEGORIES OF OF FUNDAMENTAL FUNDAMENTAL RIGHTS RIGHTS There are three categories of fundamental rights in the South African Constitution (cf. Hosten et al 1995:547-551; Kleyn & Viljoen 1998:256-257): 10.1 10.1 FIRST FIRST generation generation (fundamental) (fundamental) rights rights rights FIRST genera generation genera tion rights (1) are also known as “blue rights”; (2) are civil and political rights; and (3) strive to limit the power of government. For example, the right to equality (section 9 of the Constitution). Please note that these first generation rights are also negative rights. Why ? Because these rights strive to limit the power of government. 10.2 10.2 SECOND SECOND SECOND generation generation (fundamental) (fundamental) rights rights SECOND SECOND generation generation rights rights (1) are also known as “red rights”; (2) are socio-economic rights; and (3) strive to enhance the individual’s socio-economic circumstances. For example, the right to have access to adequate housing (section 26(1) of the Constitution). Please note that these second generation rights are also called positive rights. Why?
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 and 32: manner. 31 * to affect a person adv
Page 33 and 34: 33 white” males nor women [from a
Page 35 and 36: in terms of the remarked results. *
Page 37: 37 “In the Public Servant’s Ass
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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