South Africa: Time for Courts to Be More Proactive in Overseeing the Rights of Vulnerable Members of Society

opinion

Perhaps the time has come for the courts to intensify their supervisory role over government -- not only with regard to derelict arms of government. The notion of a transformative judiciary and decision-making requires a different approach by the courts, which can even attract the aura of politicising the judiciary.

The Covid-19 pandemic has seen various responses across the globe - social, economic, political and legal. National courts can learn much from the Inter-American Court of Human Rights (IACHR) on the appropriate role to play during pandemics.

Notable is the IACHR Resolution No. 1/2020: Pandemic and Human Rights in the Americas (Adopted by the IACHR on 10 April 2020); and the decision in the case Vélez Loor vs. Panama, which was adopted on 26 May 2020. The Vélez Loor vs. Panama decision is not only a watershed decision in the context of fighting the Covid-19 pandemic, but it could also seriously challenge the conception of judicial overreach, the "sanctity" of the conception of "judicialisation" of politics, and the efficiency governments demonstrate in protecting human rights.

More importantly, the jurisprudence from the IACHR engraves into constitutional discourse the appreciation that rights given cannot be readily taken away or chipped away, and...

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