Anton Kok | University of Pretoria (original) (raw)

Papers by Anton Kok

Global education systems, 2020

Without Prejudice, Aug 1, 2007

The post-1994 parliament has passed a large number of what could be termed "transformatory&q... more The post-1994 parliament has passed a large number of what could be termed "transformatory" laws - for example, it can be argued that the Preamble, s2 and s4(2) of the Promotion of Equality and Prevention of Unfair Discrimination Act explicitly sets out as one of its aims the transformation of South African society.

Without Prejudice, May 1, 2008

Professor Woolman wrote in the April edition of without prejudice that "our Constitutional C... more Professor Woolman wrote in the April edition of without prejudice that "our Constitutional Court often operates like a court interpreting a code in a civil system: there is the code; there are discrete disputes; there are outcomes". I do not take issue with the arguments he raised in his note. This one line from his note simply raised the following question in my mind: Why does the Constitutional Court behave in this way (from time to time)?

OPSOMMING 'n Ontleding van die beplanning en uitvoering van die opleiding van gelykheidshofperson... more OPSOMMING 'n Ontleding van die beplanning en uitvoering van die opleiding van gelykheidshofpersoneel itv die Wet op die Bevordering van Gelykheid en die Voorkoming van Onbillike Diskriminasie 4 van 2000 Hierdie artikel, in vier dele, fokus op een voorgestelde kenmerk van doeltreffende wetgewing; dat die afdwingingsmeganisme moet bestaan uit gespesialiseerde liggame en dat die voorsittende beamptes van hierdie liggame opleiding moet ontvang om spesialiskennis te verwerf. Die onderliggende tema van hierdie artikel is die (huidige) onvermoë van die Suid-Afrikaanse staat om hierdie kenmerk van effektiewe wetgewing te realiseer. Ek beskou die konsep "Staatsonvermoë" vanuit die hoek van die opleidingsprojek van die Department Justisie om voorsittende beamptes op te lei in terme van die Wet op die Bevordering van Gelykheid en die Voorkoming van Onbillike Diskriminasie 4 van 2000. Ek leen beginsels uit die dissipline van Publieke Administrasie en stel 'n raamwerk daar waarteen hierdie opleidingsprojek gemeet word. Ek ontleed dan in watter mate die projek in sy doel geslaag het. Ek verskaf 'n gedetailleerde kronologiese bespreking van die problematiese aspekte van die projek, wat insluit 'n ooroptimistiese besigheidsplan, ondoeltreffende monitering van vordering op die projek, bestuursinersie, oormatige sensitiwiteit tot sommige belanghebbers se vrese; en onvoldoende finansiële steun.

Stellenbosch Law Review = Stellenbosch Regstydskrif, 2008

This article is based on parts of draft chapters of my doctoral thesis, titled "A socio-legal ana... more This article is based on parts of draft chapters of my doctoral thesis, titled "A socio-legal analysis of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000". 4 of 000. See the discussion in para below. 3 eg cf Chemerinsky "Can Courts Make a Difference?" in Devins & Douglas (eds) Redefining Equality (1998) 191 192: "The failure to improve economic circumstances for African Americans obviously reflects inadequacies not just of courts but also, and perhaps even more significantly, of legislatures". Komesar Law's Limits: The Rule of Law and the Supply and Demand of Rights (00) argues that courts are needed most when alternative decision-making bodies such as those driving the political process are functioning poorly. Courts, political processes, markets and informal communities all function well when the number of people affected are small and the decision to be made is not complex. However, when numbers and complexity increase, all these institutions' abilities decrease. Also see Koopmans Courts and Political Institutions (2003) 262: "If many citizens want society changed… the judiciary can help them as little as the political institutions, possibly less so".

Global education systems, 2021

In this chapter, the authors consider how the rights to freedom of religion and substantive equal... more In this chapter, the authors consider how the rights to freedom of religion and substantive equality, as concretized in the South African Constitution and equality legislation, should be harmonized in the context of the exercise of religion in public schools. We use a legal analytical approach in considering how South African courts are currently dealing with the concept of "celebrating diversity" and how they should be solving these disputes: a descriptive and normative legal approach, in other words.

African Human Rights Law Journal, 2006

The book contains six chapters, based on presentations at a seminar that was held in Utrecht, the... more The book contains six chapters, based on presentations at a seminar that was held in Utrecht, the Netherlands, in March 2005. It is entitled 'Water delivery in South Africa and the Netherlands: Public or private?' The Institute of Constitutional and Administrative Law (Utrecht University) and the Community Law Centre (University of the Western Cape) organised the seminar.

Human rights law in Africa, 2004

Without Prejudice, Dec 1, 2007

Questions remain after the Constitutional Court recently handed down judgement in MEC for Educati... more Questions remain after the Constitutional Court recently handed down judgement in MEC for Education: KwaZulu-Natal and others v Pillay and others CCT 51/06 when it had cause to interpret the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 for the first time.

Permanent Secretary, Department of Welfare, Eastern Cape Provincial Goverment v Ngxuza 2001 (10) ... more Permanent Secretary, Department of Welfare, Eastern Cape Provincial Goverment v Ngxuza 2001 (10) BCLR 1039 (SCA)

South African Journal on Human Rights, 2002

ABSTRACT This article explores the effect of the 1996 Constitution and the Promotion of Equality ... more ABSTRACT This article explores the effect of the 1996 Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act on motor vehicle insurance. I illustrate that the use of some traditional rating variables is suspect by referring to foreign case law and provisions in the 1996 Constitution and the Act. I provide a number of arguments in favour of and against the continued use of these traditional rating variables. I also discuss the use of ‘neutral’ variables such as average mileage per insurance period, vehicle use and vehicle ownership and conclude that insurance companies should rather utilise ‘neutral’ variables instead of the traditional, ‘suspect’ criteria, although credible arguments exist in favour of sex and age motor vehicle insurance discrimination.

The Law Teacher, 2005

AS IS the case with other law faculties in South Africa, the Faculty of Law at the University of ... more AS IS the case with other law faculties in South Africa, the Faculty of Law at the University of Pretoria radically had to rethink its undergraduate curriculum after the legislature introduced a 4-year, undergraduate LLB degree in 1998. As a consequence, not only was the LLB curriculum redesigned, but Legal Skills was introduced as a compulsory subject for first-year law students. The introduction of Legal Skills was a response to the sense that existent language courses do not meet the specific language needs of law students. In the past the University of Pretoria, like many other South African universities, required students of law to study one or more language-based course. However, traditionally, these were heavily weighted towards the elucidation of literary texts and provided the minimum of language study. As South African and overseas researchers have indicated, traditional literature and language courses do not equip law students for the real language demands in their student and professional lives; students seldom manage to "carry over" skills that they may acquire in one subject (in this case literature) to another subject (law). Gass demonstrates that an input becomes useful to a learner in respect of the restructuring of her grammar, only if it is first "noticed." Law students often declared their boredom with literature courses, seeing them as being irrelevant in the context of thenstudies and in relation to their future career. Whatever they may learn they do not "notice," with the result that knowledge and skills are not transferred to their legal studies.

South African Journal on Human Rights, 2008

This article considers the limits of the law in addressing discrimination. It discusses to what e... more This article considers the limits of the law in addressing discrimination. It discusses to what extent the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 will achieve its stated goals of facilitating socioeconomic transformation, facilitating the creation of a more caring society, and establishing accessible enforcement mechanisms. It then identifies a number of provisions in the Equality Act that could have been drafted more carefully in service to these goals. It, inter alia, suggests that the definition of 'discrimination' in the Act be added to; that the list of prohibited grounds in the Act be extended; that systemic discrimination be addressed much more explicitly; and that s 14 be refined. * Senior Lecturer, Faculty of Law, University of Pretoria. This article is largely based on relevant parts of my doctoral thesis titled 'A Socio-legal Analysis of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000'. I thank the anonymous SAJHR referees for their comments, which led to an improved article. All mistakes and omissions remain my own. 1 See the Schedule to the Act that contains an 'Illustrative list of unfair practices in certain sectors'. The Schedule to the Act 'is intended to illustrate and emphasise some practices which are or may be unfair, that are widespread and that need to be addressed' (read with s 29(1)). 2 Section 11 read with the definition of 'harassment' in s 1(xiii). 3 Section 10. 4 Section 24 read with the definition of 'equality' in s 1(1)(ix). This is limited for individuals in terms of ss 26 and 27.

Journal of decolonising disicplines, May 21, 2021

'Legal Skills' was taught as a standalone first-year module in the LLB curriculum at the Universi... more 'Legal Skills' was taught as a standalone first-year module in the LLB curriculum at the University of Pretoria from 1998 to 2012. In the 2013 curriculum, the teaching and inculcation of legal skills were integrated into a first-year "Jurisprudence" module. The 2015/6 student protests at the University of Pretoria led to the creation of three 'transformation work streams' , one of which was tasked with curriculum transformation. The activities of the curriculum transformation work stream led to the adoption by the Senate of a Curriculum Transformation Framework Document (CTFD). All faculties have been asked to reconsider and fundamentally reshape their curricula with reference to the CTFD. This reflection-on-the-curriculum process at the Faculty of Law has arguably been dominated by an over-emphasis on the place and sequencing of modules instead of an overhaul of the content of law modules and the approach with which teaching should take place. There has also been a concerted push from some quarters in the Faculty to reintroduce a standalone Legal Skills module, rationalised by an argument along the lines of 'legal skills cannot be transformed' (never mind 'decolonised'). In this article we will consider what it could mean to ask for the decolonising of the teaching and inculcation of legal skills in an LLB curriculum.

Erasmus law review, Nov 1, 2020

In this article, we focus on how the education system can be used to promote equality in the cont... more In this article, we focus on how the education system can be used to promote equality in the context of changing people's hearts and minds-values, morals and mindsets. The duties contained in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ('Equality Act') bind private and public schools, educators, learners, governing bodies and the state. The Equality Act calls on the state and all persons to promote substantive equality, but the relevant sections in the Equality Act have not been given effect yet, and are therefore currently not enforceable. We set out how the duty to promote equality should be concretised in the Equality Act to inter alia use the education system to promote equality in schools; in other words, how should an enforceable duty to promote equality in schools be fashioned in terms of the Equality Act. Should the relevant sections relating to the promotion of equality come into effect in their current form, enforcement of the promotion of equality will take the form of obliging schools to draft action plans and submit these to the South African Human Rights Commission. We deem this approach inadequate and therefore propose certain amendments to the Equality Act to allow for a more sensible monitoring of schools' duty to promote equality. We explain how the duty to promote equality should then play out practically in the classroom to facilitate a change in learners' hearts and minds.

South African journal of higher education, Nov 1, 2017

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act... more The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) was inter alia promulgated to create a caring South African society. To achieve this goal, the Equality Act prohibits unfair discrimination, hate speech and harassment on a number of prohibited grounds, including religion, conscience, belief and culture. The Bill of Rights in the 1996 Constitution also prohibits unfair discrimination on these and other grounds. In addition, the Bill of Rights also contains rights such as the right to freedom of association and the right to freedom of expression. All laws, including the Equality Act, must be interpreted in accordance with the spirit, purport and objectives of the Bill of Rights. This article identifies possible challenges in applying the Equality Act where the alleged perpetrator attempts to justify the discrimination based on his/her religious beliefs, freedom of expression and/or freedom of association.

Social Science Research Network, Feb 13, 2015

OPSOMMING Die verbruiker se fundamentele reg op gelykheid ingevolge die Wet op Verbruikersbeskerm... more OPSOMMING Die verbruiker se fundamentele reg op gelykheid ingevolge die Wet op Verbruikersbeskerming en die rol van die Wet op Bevordering van Gelykheid en die Voorkoming van Onbillike Diskriminasie Die doel van hierdie bydrae is om die bepalings van Deel A van die Wet op Verbruikersbeskerming 68 van 2008 (WVB) te ondersoek. Deel A reguleer die verbruiker se fundamentele verbruikersreg van gelykheid in die verbruikersmark in Suid-Afrika. Die bepalings (artikels 8-10) in Deel A is uniek in die sin dat die toets vir onbillike diskriminasie in die verbruikersmark gebaseer is op een of meer van die gronde van onbillike diskriminasie soos in óf artikel 9 van die Grondwet óf Hoofstuk 2 van die Wet op Bevordering van Gelykheid en die Voorkoming van Onbillike Diskriminasie 4 van 2000 (Wet op Gelykheid) vervat. Daarbenewens word eksklusiewe jurisdiksie aan die gelykheidshof toegeken oor hierdie deel van die WVB, 'n afwyking van die roetes van regstelling wat normaalweg vir verbruikers ingevolge die WVB beskikbaar is. Artikel 8 wat 'n lys van verskeie vorme van onregverdige diskriminasie verskaf, word ontleed en bespreek asook artikel 9 ingevolge waarvan sekere differensiasie deur verskaffers in die verskaffing van goedere of dienste geregverdig kan word. Artikel 10 bied 'n vermoede van onregverdige diskriminasie asook 'n bepaalde bewyslas wat krities ondersoek word. ________________________ 4 S 8(2)(a)-(j) CPA. 5 S 8(3) CPA. 6 S 8(4) CPA. 7 S 9(1)(a) CPA. 8 S 9(1)(b) CPA. 9 S 9(1)(c) and (d) CPA.

South African Law Journal, 2001

HOMOSEXUALITY, THE BILL OF RIGHTS AND THE UNLAWFULNESS CRITERION IN THE LAW OF DELICT ANTON KOK* ... more HOMOSEXUALITY, THE BILL OF RIGHTS AND THE UNLAWFULNESS CRITERION IN THE LAW OF DELICT ANTON KOK* Senior Lecturer, Department of Legal ... The implication of this interpretation of the Conroy decision is, as with the H/&//dí/ísjudgment,that the views of ...

Social Science Research Network, May 6, 2011