Pierre de Vos

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Professor
Pierre de Vos
Born Pierre Francois de Vos
(1963-06-29) 29 June 1963 (age 60)
Messina, Transvaal, South Africa
Nationality South African
Alma mater Stellenbosch University, Columbia University, University of the Western Cape
Occupation Law professor, legal commentator
Employer University of Cape Town
Title Claude Leon Foundation Chair in Constitutional Governance
Term 2009–present
Relatives Anna-Marie de Vos, SC (sister)[1][2]
Website constitutionallyspeaking.co.za

Pierre Francois de Vos (born 29 June 1963) is a South African constitutional law scholar.

Background and career

De Vos was born in Messina, Transvaal, (now Musina, Limpopo) and matriculated from Pietersburg High School in Pietersburg (now known as Polokwane).[3] He obtained a BComm (Law), an LLB and an LLM (cum laude) from Stellenbosch University, an LLM from Columbia University and an LLD from the University of the Western Cape.[4] He taught law at the University of the Western Cape from January 1993 to July 2009, when he was appointed the Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town.[5] He was appointed Deputy Dean (LLB) of the UCT Law Faculty in January 2011.[6] He currently teaches undergraduate courses on South African Constitutional Law, the South African Bill of Rights and a post-graduate course on Governance and the South African Constitution.

Since September 2006 he has written a blog, Constitutionally Speaking, which deals with South African social and political issues from a constitutional law perspective. He is also a contributor to Thought Leader, a news and opinion website owned by the South African newspaper Mail & Guardian. His blog posts are simultaneously published on the Daily Maverick website.[7] He is a regular media commentator on political and legal events in South Africa and has appeared on numerous SABC and e.tv programmes as well as on South African radio stations such as SAfm, RSG, 567 Cape Talk and Talk Radio 702. He has also appeared on the BBC World Service and CNN International.[8]

He has published articles on sexual orientation discrimination and same-sex marriage,[9] the enforcement of social and economic rights, HIV/AIDS, the construction of race, racism and racial discrimination and other human rights issues. He is a regular media commentator on the South African judiciary[10] and South African law.[11][12] He was also approvingly quoted in the South African Constitutional Court judgment which legalised same-sex marriage in South Africa entitled Minister of Home Affairs v Fourie.[13]

He is also the author of a novel Slegs Blankes / Whites Only written in Afrikaans, the story of a young white South African man coming to terms with his father's involvement in an apartheid-era police hit squad.

He is an Afrikaans speaker but does not identify as an Afrikaner. He identifies as white, gay and atheist.[14]

He is the Chairperson of the Board of the Aids Legal Network, a non-governmental human rights organisation, and a board member of the Triangle Project, a non-profit LGBT advocacy organisation.[4][15][16] He is also a member of the advisory council of the Council for the Advancement of the South African Constitution (CASAC)[17]

Controversies and public engagement

  • In February 2004, in the first case considered by the Equality Court set up in terms of the Constitution of South Africa, de Vos and his partner won a case against the owners of a gay bar in Cape Town after the owners admitted that they had discriminated against de Vos's partner because of his race. As part of a settlement, which was made an order of court, the bar was ordered to pay R10,000 to Siyazenzela, a non-profit organisation nominated by de Vos's partner.[18]
  • In 2008 de Vos became embroiled in a spat with Helen Zille, the leader of the official opposition in South Africa after Zille had criticised Justice Nathan Erasmus for chairing a Commission of Inquiry set up to investigate wrongdoing by her party.[19] Zille had said that "some judges allow themselves to be abused and I am afraid Nathan Erasmus is one of them".[20] Writing on Thought Leader, de Vos took issue with Helen Zille on two points: that the DA was being "hypocritical" in trying to shut down the Commission and that her comment about Justice Erasmus was "politically stupid" and served to undermine the independence of the judiciary.[21] Zille responded to the article arguing that the Commission was a political witch-hunt. The Cape High Court eventually declared the Commission unconstitutional.[22]
  • In June 2009, after a radio debate between de Vos and Paul Ngobeni, a supporter of Judge President of the Cape, John Hlophe, de Vos was accused of being a racist who hated Hlophe. "This guy will be joining a group of gangsters who make (John) Hlophe their do-or-die issue. Whites want to entrench themselves in the last unelected branch of government - the judiciary," said Ngobeni. De Vos denied the charge.[23] He pointed out that what he had written on his blog was the opposite of what was alleged, namely: "This does not make me a person who hates the Judge President (or his lawyers)".[24]
  • In 2009 he was critical of the government's attempt to evict residents of Joe Slovo Informal Settlement in Cape Town and rulings upholding their eviction by the Western Cape High Court and the Constitutional Court of South Africa.[25]
  • In 2010 he was similarly critical of the decision by the City of Cape Town to build open toilets (so-called "loos with a view") for the residents of Makhaza, a township in Cape Town.[26][27]
  • He has published many articles in support of the social movement Abahlali baseMjondolo, including commentary on the legal aspects of their occupation of land in Macassar and the attack on the movement in Kennedy Road.[28][29][30][31]
  • In August 2011, de Vos came out in support of a call by South African Archbishop Emeritus Desmond Tutu's for a once-off wealth tax imposed on those who benefited from apartheid.[32] He wrote on his blog "But not only is a wealth tax on white South Africans who earn a minimum amount of money constitutionally valid. It is also an important and welcome idea that must be supported by all right-thinking South Africans with even a smidgen of a conscience or common sense", and stated that the tax would be "a small gesture towards reconciliation and redress". He criticised the FW de Klerk Foundation for rejecting the idea of a reparations tax, and for saying in a media statement that it would be unconstitutional to do so, writing on his blog "Such measures are not 'reverse discrimination' or 'positive discrimination' but are rather 'integral to the reach of our equality protection'".[33]
  • In November 2015 De Vos wrote several articles arguing in favour of a change to the language policy at the University of Stellenbosch to eradicate the indirect racial discrimination imposed by the use of Afrikaans at the University.[34]

Publications

Fiction

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Non-fiction

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Recent academic articles

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  • Lua error in package.lua at line 80: module 'strict' not found. Index page of Public Law Review linked.
  • Lua error in package.lua at line 80: module 'strict' not found. Full article including English abstract linked.
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Notes

  1. ↑ "Abstract: This article argues that the adoption of the Civil Union Act, extending marriage rights to same-sex couples, does not represent the inevitable and triumphant victory of a long legal and political struggle for the emancipation of gay men and lesbians in South Africa. A combination of luck, wise strategic leadership and fortitude eventually led to the adoption of full marriage rights for same-sex couples. The article traces the roots of this legal and political victory back to the debates about the inclusion of the sexual orientation clause in the South African Constitution and points to the importance of the distinct (conservative) legal strategy employed by the National Coalition for Gay and Lesbian Equality in achieving full partnership rights for all. The initial jurisprudence developed by the Constitutional Court created the basis for later legal victories and brought along judges who might have had some misgivings about the extension of marriage rights to same-sex couples had the issue arisen earlier on. The Constitutional Court's judgment in Fourie left very little room for Parliament to manoeuvre because it emphasised the symbolic value of marriage and confirmed that a 'separate but equal' partnership law for same-sex couples would not pass constitutional muster. However, this important legal victory will not have any direct and immediate bearing on the lives of many gay men and lesbians in South Africa as they face social, cultural and economic hardship in ways that cannot be easily addressed through the legal reform of partnership laws. The improvement of the lives of ordinary gay men and lesbians will go hand in hand with changes in societal attitudes towards minority sexualities, which to a large extent will be dependent on grassroots activism and organisation. Because the battle for full marriage rights was a well directed, elite-based legal battle, it failed to build a sustainable, vibrant, grassroots movement to take on this task but the symbolic space created by the same-sex marriage reform may well begin to allow for the fostering of such a movement and thus for true emancipation of gay men and lesbians."
  2. ↑ "Abstract: This article maps the legal developments that led to the adoption of the Civil Union Act, which extended full marriage rights to same-sex couples in South Africa. It points out that this extension of marriage to same-sex couples would not have been possible if it was not for the groundbreaking decisions on sexual orientation discrimination handed down by the South African Constitutional Court over the past ten years. It also describes the complex legal regime now in place which allows different sex couples to enter into marriage in terms of a traditional Marriage Act or the new Civil Union Act but restricts same-sex couples to entering into marriage in terms of the latter Act. The article concludes that while this extension of marriage rights can be viewed as a legal revolution, some problems remain with the legal regulation of same-sex relationships in South Africa."
  3. ↑ "Abstract: The two judgments of Laurie Ackermann in the first and second National Coalition cases are in many respects remarkable documents. They engage in an intellectually rigorous and sometimes provocative way with the question of sexual-orientation discrimination and extend legal protection for many individuals who experience same-sex sexual and emotional desire. The judgments also pose significant questions about the way in which the law can and should deal with sexual identity and questions traditional notions of a fixed homosexual identity - particularly in the South African context."
  4. ↑ "Abstract: Wholesale non-compliance with court orders is a distressing phenomenon in modern day South Africa, both in the Eastern Cape and elsewhere. Where this non-compliance with court orders is rooted in the 'laziness and incompetence' of state officials and where it negatively affects often poor and vulnerable members of society who are, in effect, denied access to life-sustaining resources (which would otherwise have been provided by the state) because of the tardiness of state officials, courts are confronted with difficult issues that strike at the heart of the rule of law, and for respect for the moral authority of the judiciary. What is at stake in such cases is nothing less than the legitimacy of the legal system and the courts that underpin it. When indigent members of society turn to the courts (itself a rare occurrence, given the prohibitive cost and technical difficulties faced by many such individuals) to have the legal obligations of the state owed to them enforced and the system fails them due to a lack of respect for court orders, the rule of law - which EP Thompson controversially called an 'unqualified human good - is fundamentally threatened. Courts therefore have, both in pragmatic and ethical terms, a duty to take steps - within the limits of what is permissible by the Constitution and the law - to ensure that court orders are enforced and the court's legitimacy and authority is preserved."
  5. ↑ "Abstract: The title of this paper suggests there is a firm link between the jurisprudence on sexuality and gender authored by Justice Albie Sachs during his tenure on the Constitutional Court and the work conducted in the field that has become known as queer legal theory. That such a link exists needs to be affirmed since there is perhaps no other South African judge whose jurisprudence has considered the question of the legal empowerment and/or emancipation of sexual minorities as seriously as that of Justice Sachs."
  6. ↑ "Abstract: In this note we propose to deal, from a particular vantage point, with the Constitutional Court's judgment in Le Roux & others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC): we investigate how heteronormativity (as a cultural phenomenon) influences the determination in the majority judgment (authored by Brand AJ) that defamation had been committed by the applicants. By using the term 'heteronormativity' we mean to gesture at the set of cultural practices and assumptions that privilege heterosexuality and assume that the monogamous heterosexual couples represent the principle of social union itself."
  7. ↑ "Abstract: The Constitutional Court has dealt with racially based corrective measures against the background of the Court’s understanding of South Africa’s apartheid past and the lingering effects and consequences of this past on post-apartheid society. While the Court has not always demonstrated a sufficient degree of care when deploying racial categories, its jurisprudence also gestures at the need for a contingent and critical approach to race when engaging with the problem of race-based corrective measures. The Constitutional Court’s jurisprudence on constitutionally permissible (or required) race-based corrective measures is discussed and I point out that the way the Court deals with this question opens up space for a constructive engagement with legally mandated race-based corrective measures to avoid some of the pitfalls highlighted in the article."
  8. ↑ "Abstract: The notion of race continues to permeate every aspect of both public and private life in South Africa. Race insinuates itself into our responses to situations and people and even when we claim that we have escaped the perceived shackles of race, we are merely confirming its presence by our stated yearning for its absence. Against this background, and given the constitutional commitment to non-racialism, some academics and commentators argue against the use of race-based corrective measures on the basis that such measures perpetuate racial thinking and entrench racial identities, instead of helping us to move away from them. In the article the author takes issue with this view, contending that the effects of past and on-going racism and racial discrimination cannot be addressed merely by assuming that the consequences of race - including racism - can be addressed by attending to the material conditions of inequality and by ignoring race. What is required is to question the positions and discourses of privilege and dominance that stem from an ideology of white superiority and hegemony and to engage more critically and in a nuanced manner with the power of race and the effects of ongoing racism and racial discrimination."
  9. ↑ "Reflections on the generosity of the late Nelson Mandela and the challenges it pose for a critical white male academic in South Africa
  10. ↑ "Abstract: Two white male Afrikaans gay academics decide to respond to a call for papers to be presented at a conference with the theme "Gardens of justice" in Stockholm, Sweden in 2012. In the course of their attempt to co-author an academic paper on the historyof the struggle for sexual minority freedom in South Africa, they are confronted by their own histories, contradictions, literary influences and context - confrontations that ultimately mirror the instability of subjectivity and the valences of a critically queer positionality in post-apartheid South Africa.
  11. ↑ "Abstract: The dignity of individuals who experience same-sex sexual desire or act upon such desire is seldom fully respected by the law and by other citizens. Although human rights are often invoked as part of an emancipatory strategy aimed at restoring the enjoyment of full citizenship for all sexual minorities, the potential success of such a strategy remains in doubt in many parts of the world – also in most parts of the African continent. In this article the author argues that there are at least three powerful reasons why invoking a human rights discourse as an emancipatory tool for those who experience same-sex desire is particularly difficult on the African continent. First, as members of sexual minorities become more visible and as individuals who experience same-sex desire and engage in same-sex sexual acts increasingly become associated with the notion of ‘homosexuality’ (as an identity) – as a fixed, universally applicable Western creation – same-sex desire is increasingly being characterised – especially by politicians and African elites – as being ‘un-African’, a Western imposition, something that did not exist on the continent before the colonial (or neocolonial) encounter. The human rights framework can then be depicted as attempting to impose acceptance of these ‘un-African’ tendencies on a vulnerable community whose traditional values and practices have already been decimated by colonialism. Second, this dynamic is exacerbated by the fact that the human rights discourse is often invoked by Western governments and the media in terms of a discourse of modernity and progress: those countries that recognise the rights of sexual minorities are considered modern, which by implication casts those countries that do not as un-modern or pre-modern. Lastly, individuals who experience same-sex desire are often stigmatised as only half human, as ‘pigs and dogs’, as creatures who cannot ever be full citizens and are therefore not entitled to the protections offered by human rights. In the light of these difficulties, the author proposes tentative strategies to engage in the struggle for the emancipation of sexual minorities centred around the notion of human dignity.
  12. ↑ "Abstract: South Africa’s democracy has both representative and participatory elements. The participatory aspect of democracy enhances the civic dignity of citizens by empowering them to take part in decisions that affect their lives. However, the overbearing role that political parties play in the South African democracy runs the risk of limiting the ability of citizens to participate effectively in decisions that affect their lives. This is because the leaders of political parties (especially of governing parties) may wield enormous power and influence inside their respective parties and in the legislature and executive. Where the ordinary members of parties have little or no direct say about the formulation of the policies of the party they belong to or the election of its leaders or those who will stand for election as public representatives at national and provincial level, the ability of such members to participate in democratic processes and decisions are limited. To facilitate the participation of party members in the activities of a political party to ensure the enhancement of their civic dignity s 19(1)(b) of the Constitution guarantees the right of every citizen freely to make political choices, including the right to participate in the activities of, or recruit members for, a political party. In Ramakatsa v Magashule the majority of the Constitutional Court affirmed the importance of the right of party members to participate freely in the activities of the political party they belong to and also found that the constitutions of political parties have to ensure this happens. Provisions of a political party’s constitution can be declared invalid if it fails to comply with the provisions of the Bill of Rights (including s 19(1)(b)). This article contends that Ramakatsa can be interpreted to place a positive duty on the legislature to pass a ‘party law’ that sets minimum requirements to protect the democratic participation of party members in the activities of the party – including about the formulation of party policies, the election of party office bearers and the selection of the party’s candidates for election as public representatives.
  13. ↑ Contested Intimacies offers five unique analyses of the ways that sexuality, gender, and the law interact in eastern and southern African countries, primarily Uganda and South Africa. The authors argue strenuously for social critiques of the law that attend to the intricate intersections between different aspects of identity, whether class, race, national identity, within national, continental, and global debates about the status of gender and sexual minorities. In one way or another, all of the essays in this book also name patriarchy and its interest in validating heteronormative bonds as the chief motivation for anti-homosexuality and ‘decency’ laws in Africa.
  14. ↑ Abstract: In 2006 South Africa became the first country on the African continent to legalise same-sex marriage when the South African Parliament adopted the Civil Union Act. The Act was adopted to comply with the Constitutional Court judgment of Minister of Home Affairs and Another v Fourie and Another. The judgment ruled that the South African common law, which defined marriage as consisting of a union between one man and one woman, was in breach of the equality guarantee in the Constitution and ordered the legislature to correct the defect within twelve months. The Fourie judgment was in large part based on the jurisprudence regarding sexual orientation discrimination developed by the Constitutional Court after a prohibition against discrimination, inter alia on the basis of sexual orientation, was included in South Africa’s democratic Constitution after 1994. http://www.gerjc.univ-cezanne.fr/index.php?id=231&tx_ttnews%5Btt_news%5D=363&cHash=bc9086bc78382cd6fc90bc473d37f8c1

References

  1. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  2. ↑ Lua error in package.lua at line 80: module 'strict' not found. See also Du Toit v Minister of Welfare and Population Development.
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  13. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  14. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  15. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  16. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  17. ↑ http://www.casac.org.za
  18. ↑ Lua error in package.lua at line 80: module 'strict' not found.
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  22. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  23. ↑ Lua error in package.lua at line 80: module 'strict' not found.
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  25. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  26. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  27. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  28. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  29. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  30. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  31. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  32. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  33. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  34. ↑ Lua error in package.lua at line 80: module 'strict' not found.
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