Marius Pieterse

Marius Pieterse
University of the Witwatersrand | wits · School of Law

PhD

About

69
Publications
11,703
Reads
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470
Citations
Additional affiliations
September 2012 - present
International Research Group on Law and Urban Space
Position
  • Joint global co-ordinator
January 2001 - December 2004
South African Journal on Human Rights
Position
  • Co-managing editor
June 1998 - present
University of the Witwatersrand
Position
  • Professor
Description
  • I joined the School of Law as a part-time lecturer in 1998 and full-time lecturer in 1999. I was promoted to senior lecturer in 2001; to associate professor in 2003 and to professor in 2007.
Education
June 2003 - June 2006
January 1998 - December 1998
University of Pretoria
Field of study
  • Law
January 1996 - December 1997
University of Pretoria
Field of study
  • Law

Publications

Publications (69)
Book
Rights-based Litigation, Urban Governance and Social Justice in South Africa considers the overlap between legal and everyday struggles for social and spatial justice in the particular context of Johannesburg, South Africa. Drawing from literature across disciplines of law, urban geography and urban planning, as well as from reported case-law conce...
Article
Why is urban local government failing in many South African secondary cities? Through the example of a major instance of governance collapse in the Emfuleni local municipality, this article discusses the fault lines in the legal and structural architecture underlying governance of South African cities and towns. It argues that, while human failings...
Article
Full-text available
This article is concerned with the extent to which corporations involved in governing South African cities and towns are bound to the developmental objectives and socio-economic rights that urban governance efforts are constitutionally required to pursue. It considers the constitutional powers of local government over such non-state actors, evaluat...
Article
This article illustrates the transformative potential of guaranteeing justiciable socio-economic rights in domestic law, by engaging with the judicial vindication, over nearly a quarter-century, of the right to housing in the South African Constitution. Initial assessments of housing rights litigation in the country suggested that, while the right...
Article
Given the growing role played by corporate power in urban governance, this article considers how, in structuring the interplay between corporations and the local state within contemporary urban governance arrangements, urban law can enhance public values and public accountability. Drawing on examples from different cities and legal systems, the art...
Article
This article analyses the decline and near collapse of local government in South Africa through a political and legal lens. Given the paralysis of constitutionally envisaged political accountability procedures in the post-Mbeki period, residents and local businesses have increasingly resorted to courts and chapter 9 institutions, in addition to loc...
Article
Full-text available
To complement Zack Taylor’s paper on Regionalism from Above: Metro Governance in Canada, the journal commissioned four short ‘perspectives’ from Commonwealth countries grappling with similar issues – Australia, England, New Zealand and South Africa. The purpose was not in any way to ‘review’ Taylor’s work, but rather to establish a broader picture...
Article
This article is concerned with the extent to which corporations involved in governing South African cities and towns are bound to the developmental objectives and socio-economic rights that urban governance efforts are constitutionally required to pursue. It considers the constitutional powers of local government over such non-state actors, evaluat...
Chapter
Full-text available
"The Oxford Compendium of National Legal Responses to Covid-19 is a global academic collaboration mapping legal responses to Covid-19 in dozens of participating countries and territories. Each entry is structured identically and explores the role of public law, institutional adaptation, public health measures, social and labour policy, and human ri...
Chapter
The broad ambit of the right to health, which is typically understood to embrace ‘a wide range of socio-economic factors that promote conditions whereby people can lead a healthy life’ and to extend to ‘underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and sanitation, safe and healthy working c...
Article
This article aims to show the need for a clearer wall between political parties and state institutions in South Africa. The focus is on local government level where, it is argued, the absence of a dividing line between legislative and executive functions exacerbates the anti-democratic effects of a party/state conflation. The usurpation of local go...
Article
In the context of a stand-off between housing rights advocates and the South African government over the appropriate way to safeguard the right to health in the country’s urban informal settlements during the early days of the COVID-19 pandemic, this article reflects on some of the strengths and weaknesses of the local understanding of human rights...
Article
This article considers the links between urban autonomy and the constitutional and legal powers, functions and responsibilities of urban local government, in countries of the South African Development Community (SADC). It evaluates SADC cities’ constitutional status, their operational, functional and financial autonomy, their collaborative and stra...
Chapter
This chapter appears in Law and the New Urban Agenda, edited by Nestor M Davidson and Geeta Tewari, which has recently been published by Routledge (London and New York, 2020). Law and the New Urban Agenda aims to offer ‘a constructive and critical evaluation of the legal dimensions of the New Urban Agenda’. My chapter interrogates the New Urban Age...
Chapter
Full-text available
This paper, which is part of the first volume of the South African Cities Network’s Urban Governance Paper Series (edited by Danga Mughogho), overviews constitutional standards and supporting legislative and policy frameworks, as well as high-level case law on urban service delivery in South African cities, in order to arrive at a sense of both loc...
Article
The ways in which cities function and are governed matter economically. While the growing literature on 'global cities' shows that city governments often pursue economic competitiveness, not much work has been done on whether the formal powers and competencies of cities and towns, as well as the ways in which these are wielded, are conducive to the...
Article
The notion of urban autonomy is increasingly significant in a global era where city governments are playing an ever-growing role in development, as well as in domestic and international politics. While extending significantly beyond legal configurations of local government powers and functions, urban autonomy is importantly shaped, enabled and prot...
Article
South African cities enjoy significant constitutional autonomy and financial independence, meaning that they are well-placed to assert themselves against national and provincial governments, especially in situations of political discordance between different levels of government. This article considers the first year of multi-party coalition-led op...
Article
This article responds to the criticism that the “second wave” of socio-economic right judgments by the South African Constitutional Court unduly defers socio-economic dispute resolution to “outside” democratic structures. Given that socio-economic rights are strategically asserted through a range of political channels, from voting to participation...
Article
This article questions the usefulness of the notion of an ‘urban periphery’ for efforts to capture and ameliorate urban marginalisation and exclusion through human rights-based litigation. Focusing on South Africa’s Gauteng City Region, the article argues that the notion of an urban periphery fails to capture the nuances of marginal urban life and...
Research
Full-text available
While both international trade law and regional trade agreements in the SADC region are typically focused on nation states, it is cities that produce the bulk of economic goods and services in the region and that, in effect, are the main actors in terms of trade agreements. Similarly, regional trade is facilitated by inter-city infrastructure, conn...
Article
Full-text available
In contemplating the extent to which rights-based litigation is conducive to positive social change, attention ought to be paid to the bureaucratic impact of court judgments that vindicate rights against the State. As a case study of such impact, this article considers the effects of human rights litigation on the regulation of informal trade in th...
Article
Full-text available
In contemplating the extent to which rights-based litigation is conducive to positive social change, attention ought to be paid to the bureaucratic impact of court judgments that vindicate rights against the State. As a case study of such impact, this article considers the effects of human rights litigation on the regulation of informal trade in th...
Article
This article aims to strengthen the theoretical case for geographical awareness in human rights work, by considering the performance of the right to have access to health care services in section 27(1)(a) of the 1996 Constitution, by particular inhabitants of Johannesburg. It shows how a "performative" understanding of the right to have access to h...
Article
As African cities modernise, globalize and transform, attention needs to be paid to the manner in which poor and marginalised urban inhabitants are accommodated, both within the physical city and within urban management, laws and policies. In African cities, this especially requires a rethink of legal and urban management approaches towards informa...
Article
This article considers the legal and spatial dimensions of urban sexual citizenship in South Africa. It reflects upon the manner in which legal and spatial regulation of sex evokes the private/public dichotomy and upholds an essentially heteronormative conception of sexual citizenship, before evaluating rights-based strategies that have thus far be...
Article
Given the spatial and economic inequalities inherent to South African towns and cities, which have been exacerbated by recent waves of urbanisation, this article aims to situate the provision of public transport in South Africa within a rights-based framework. This involves both an acknowledgement of the geographical components of human rights and...
Article
This article explores some of the interlinkages between the physical enactment of the right to the city, the spatial dimensions of urban sexual citizenship and the legal invocation of sexual rights. Its focus is on the struggles for rights and sexual citizenship by different gay, lesbian, bisexual, transgender and intersexed (LGBTI) inhabitants of...
Article
This article considers the intersection between socio-economic rights and the environmental right in the 1996 South African Constitution, in the specific context of urban development. Relying on literature on sustainable development and the ‘right to the city’, the article argues for the re-imagination of section 24 of the Constitution in an urban...
Book
Full-text available
At a time when South Africa's ailing and dysfunctional health system is on the verge of radical transformation through the mooted introduction of a National Health Insurance scheme, and when there are increasing political tensions between government and the courts, this book reflects upon the South African experience of judicially enforcing health-...
Article
This article takes issue with depictions of masculinity and male gender identity in the South African Constitutional Court's judgements on gender equality and sexuality. It argues that, while the Court rightly acknowledges that male gender identity is problematic and that societal norms and expectations relating to masculinity are core causes of th...
Article
As the world population rapidly urbanizes, cities and towns are increasingly the sites at which, and the means through which, civil and political, as well as socio-economic rights are actualised. This reality is sparking a shift in focus in development and governance studies, with growing attention being paid to urban governance as means for creati...
Article
In a rapidly urbanising society and against a background of rural underdevelopment, cities are increasingly the locations for access to basic socio-economic amenities and essential services. Access to the city and everything that it offers therefore impacts profoundly on the manner and extent to which poor and marginalised persons access the object...
Conference Paper
This paper considers the impact of court judgments upholding the right of access to health care services on the transformation of the South African health system, which remains one of the most unequal and least efficient in the world. While rich and upper-class South Africans have access to excellent medical care in the private sector, the public h...
Conference Paper
Equity, Rights and Regulation: Facing the Public/Private Health System Divide in South Africa Marius Pieterse, Professor of Law, University of the Witwatersrand, South Africa Like elsewhere, the South African health system reflects severe inequalities in the extent and quality of access to health care services. These inequalities are reflected...
Article
It is often argued that the Constitutional Court adopts an 'administrative law approach' in deciding socio-economic rights matters. Following from this, this article considers the methodology inherent to the so-called 'second wave' of the Court's socio-economic rights jurisprudence. It argues that several features of this methodology correspond to...
Article
Full-text available
It is the task of government to turn the basic rights contained in the Constitution into lived reality for South Africa's people by means of legislation and policy. Marius Pieterse focuses on the crucially important right of access to health care services, examining the extent to which the legislature and executive have translated this right into c...
Article
Opponents of rights-based access to health care services often emphasize individual responsibility for health and well-being, in justifying restrictions on public health care. Where individuals are co-responsible for their ill health, so the argument goes, the public obligation to alleviate their hardship should be limited. This discourse not only...
Article
An increasing number of African states criminalise HIV transmission. In addition, several criminalise private conduct traditionally associated with risk for such transmission, such as homosexuality, sex work and drug use. However, there is increasing evidence that punitive responses to the HIV epidemic are inappropriate and counterproductive. They...
Article
Human rights law accepts that, due to their well-documented social vulnerability, children should be afforded special protection, particularly when it comes to the recognition and enforcement of socio-economic rights. It also accepts that children’s socio-economic rights need to be enforceable against the State as well as against parents or primary...
Article
Notwithstanding the state-centeredness of most theories on socio-economic rights, the objects of these rights are often accessed privately, within and by way of relationships. Viewing socio-economic obligations as primarily enforceable against the state ignores the significant power of parties to private relationships to control the terms of access...
Article
This article explores the interaction between health, autonomy and empowerment in the South African context. It considers social and structural factors impacting on health-related lifestyle ‘choices’, assesses the protection and enhancement of health-related autonomy in South African law and critically analyses elaborations on individual autonomy,...
Article
This article investigates the impact of rights-based litigation on social struggles in the South African health sector. It considers the manner in which individuals and social movements have utilized rights and the legal process in their efforts to dismantle the ill-health/poverty cycle, in the particular context of the struggle for universal acces...
Article
This article reflects on the implications of an individual-centred approach to equality adjudication for the achievement of substantive equality, by considering the extent to which the peculiar characteristics of individual applicants have impacted on the outcomes of equality challenges decided by the Constitutional Court. It pinpoints and discusse...
Article
This article considers anew the utility of rights-discourse in alleviating social hardship. It revisits the Critical Legal Studies-inspired debates on the topic, but in the context of justiciable socioeconomic rights, such as those found in the South African Constitution. The article explains the "emptiness" of the socioeconomic rights jurisprudenc...
Article
This article considers anew the utility of rights-discourse in alleviating social hardship. It revisits the Critical Legal Studies-inspired debates on the topic, but in the context of justiciable socioeconomic rights, such as those found in the South African Constitution. The article explains the "emptiness" of the socioeconomic rights jurisprudenc...
Article
Apart from their direct application against the State, the justiciability of socio-economic rights also requires the transformation of those aspects of private law that regulate relationships which are crucial for their effective enjoyment. This is acknowledged by the Constitution, which determines that rights may sometimes bind private parties and...
Article
Résumé Cet article tente d'élucider la manière dont les États peuvent utiliser leurs obligations issues des droits économiques et sociaux, afin de solidifier la légitimité constitutionnelle des lois qui ont pour but de promouvoir l'équité sociale. En prenant pour étude de cas l'Afrique du Sud, nous examinons de quelle manière ce pays a utilisé ses...
Conference Paper
Apart from their direct application against the state, the justiciability of socioeconomic rights also requires the transformation of those aspects of private law that regulate relationships which are crucial for their effective enjoyment. This is acknowledged by the Constitution of the Republic of South Africa, 1996, which determines that rights m...
Article
This article considers the remedial and transformative potential of litigation based on legally enforceable socio-economic entitlements, such as the justiciable socio-economic rights contained in the 1996 South African Constitution. It focuses on the interpretation and enforcement of South African prisoners' constitutional rights to dignified condi...
Article
Notwithstanding the Constitutional Court of South Africa's rejection of a minimum core approach to the enforcement of the socio-economic rights in the Constitution of the Republic of South Africa, 1996, it is possible to interpret these rights as entailing individual entitlements that may in appropriate circumstances be claimed against the state. S...
Article
This article contemplates the constitutionalization and concomitant judicial enforcement of social rights as an avenue through which such rights may be realized domestically. Through engaging with the South African example, the article challenges perceptions that social rights are by nature ill-suited for domestic application, while illustrating th...
Article
This article argues for the reconceptualisation of the South African socio-economic rights debate so that its various arguments relating to institutional powers and competence may constructively inform new debates on an appropriate judicial role in a socially just constitutional dispensation. Through retracing the various arguments for and against...
Article
This article engages with the racial distinction inherent in legal dualism and the application of customary law, and questions the justification for upholding this distinction in a society founded on non-racialism. After exploring the theoretical foundations of racialism and the links between racialist and culturalist ideology, the article engages...

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