The Tenability of the Constitutional Court’s Arguments in Support of the Possible Recognition of Wrongful-Life Claims in South Africa

by | Oct 19, 2019 | SALJ, SALJ V134 I1 2017

The Tenability of the Constitutional Court’s Arguments in Support of the Possible Recognition of Wrongful-Life Claims in South Africa

Authors Anton van Loggerenberg

ISSN: 1996-2177
Affiliations: Advocate of the High Court of South Africa
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 162 – 183

Abstract

This article is a critical analysis of the Constitutional Court’s arguments relating to the potential recognition or viability of wrongful-life claims in the South African law of delict as set out in H v Fetal Assessment Centre 2015 (2) SA 193 (CC). The article illustrates how the Constitutional Court’s attempt to justify the recognition of this claim within the context of an Aquilian action by application of inter alia the child’s constitutional right to have his or her best interests regarded as paramount in all circumstances concerning the child, is untenable. It accordingly considers the prospects of establishing harm-causing conduct, wrongfulness and causation in order to succeed with the actio legis Aquiliae in addition to the possibility of claiming constitutional damages.

The Implications of the Right to Equality in Terms of the Constitution for the Common Law of Contract

by | Oct 19, 2019 | SALJ, SALJ V134 I1 2017

The Implications of the Right to Equality in Terms of the Constitution for the Common Law of Contract

Authors Deeksha Bhana

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 141 – 161

Abstract

This article considers the interplay between the common law of contract and the right to equality, as enshrined in s 9 of the Constitution, 1996 and given effect to by the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘the Equality Act’). Whilst s 9(4) of the Constitution makes it clear that the right to equality is horizontally applicable by way of the Equality Act, the relevant provisions must be read with the application (s 8) and interpretation (s 39) sections of the Constitution. In particular, I argue that it is important to reconcile the common law of contract with the Equality Act, so as to foster a mutually beneficial relationship between the two, rather than simply to apply the Equality Act bluntly to (potential) contracts without much regard for the common law of contract. I then show how such reconciliation ought to translate in more concrete terms, first in relation to an already concluded contract (or contractual clause) that purports directly or indirectly to discriminate unfairly against a person or group of persons and, secondly, in relation to a refusal to contract in circumstances where such refusal would likewise constitute unfair discrimination.

The Prosecution of Female Genital Mutilation: A Discussion of its Implications for South Africa in the Light of a Recent Australian Case

by | Oct 19, 2019 | SALJ, SALJ V134 I1 2017

The Prosecution of Female Genital Mutilation: A Discussion of its Implications for South Africa in the Light of a Recent Australian Case

Authors Meda Couzens

ISSN: 1996-2177
Affiliations: Honorary Research Fellow, School of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 116 – 140

Abstract

Many countries in the world criminalise female genital mutilation (‘FGM’) in an effort to curb this practice that harms millions of women and girls around the world. However, successful prosecutions of the offence are rare, which suggests that using the criminal law to fight the practice is not an ideal solution. In a recent Australian case, three accused were found guilty of FGM-related offences, including the mother of the two young victims. Drawing from this case, this article emphasises several aspects which may be of relevance for South Africa in implementing its own anti-FGM legislation, especially in relation to the definition of FGM, the investigation process, and the sentencing for FGM when the perpetrator is a parent. The case provides an opportunity to interrogate several aspects of the South African legal framework pertaining to FGM. It is argued that legal reform or an innovative interpretation of the Children’s Act 38 of 2005 may be needed in order for all FGM types recognised internationally to be considered as offences under the Act. It is also argued that the current legal framework, which does not criminalise FGM in relation to adult women, may be discriminatory, and that the legal position in relation to women and girls who consent to the practice requires clarification.

The Shackled Parent? Disputes over Relocation by Separating Parents – Is there a need for Statutory Guidelines?

by | Oct 19, 2019 | SALJ, SALJ V134 I1 2017

The Shackled Parent? Disputes over Relocation by Separating Parents – Is there a need for Statutory Guidelines?

Authors Brigitte Clark

ISSN: 1996-2177
Affiliations: Senior Lecturer, School of Law, Oxford Brookes University
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 80 – 115

Abstract

This article focuses on the problems confronting a variety of jurisdictions when one parent wishes to relocate internationally with the children after divorce or separation and, as a result, the parent ‘left behind’will be deprived of access to/contact with his or her children. The article examines relocation in the context not only of its frequently gendered nature, but also of the inconclusive and controversial social-science research about its effects on children. As a result of this examination, the article suggests that national statutory guidance should be drafted, directing the courts to consider (inter alia) the wishes and feelings of the children; the current care-giving responsibilities; the relocating parent’s reasons for wishing to relocate; the non-relocating parent’s reasons for opposing the relocation; and the presence of any domestic violence. An internationally collaborative strategy leading to the establishment of national statutory guidance would appear to be the most effective way in which the law can operate in this area. This would strengthen the impact of the provisions of the United Nations Convention on the Rights of the Child, and greater legal certainty could be achieved by the framing of such guidelines, whilst preserving the ultimate discretionary power of the courts to act in the child’s best interests.

The Myth of Rationality: Cognitive Biases and Heuristics in Judicial Decision-Making

by | Oct 19, 2019 | SALJ, SALJ V134 I1 2017

The Myth of Rationality: Cognitive Biases and Heuristics in Judicial Decision-Making

Authors Willem H Gravett

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Procedural Law, University of Pretoria
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 53 – 79

Abstract

From Plato until the early 1970s, humankind operated under two broad assumptions: (1) people are generally rational; and (2) when people depart from rationality, emotions are likely to blame. However, in 1974 experimental psychologists started documenting systematic errors in the thinking of ‘normal’ people that they traced to the basic design of the machinery of cognition, rather than to the corruption of thought by emotion. They found that human beings rely on cognitive shortcuts to generate judgements without having to consider all the relevant information, relying instead on a limited set of cues. A range of empirical studies in the United States and Europe show that judicial decision-makers are susceptible to some of these cognitive biases. Even if judges have no conscious prejudice against either litigant, understand the law, and know the facts, they might still make systematically erroneous decisions because of how they — like all human beings — think. The purpose of this article is to start to acquaint the South African judiciary with these traps of the mind. There seems to be no empirical research on the effects of these cognitive biases on judicial decision-making in South Africa. This is a perilous deficiency in scholarship that must be addressed.