Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

by | Oct 26, 2022 | SLR, SLR V33 I3

Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

Authors: Bonginkosi Shozi, Roasia Hazarilall and Donrich Thaldar

ISSN: 1996-2193
Affiliations: LLB LLM PhD, Postdoctoral Scholar, Institute for Practical Ethics, UC San Diego, Honorary Research Fellow, University of KwaZulu-Natal; LLB, Masters candidate, University of KwaZulu-Natal; BLC LLB MPPS PGDip PhD, Professor, University of KwaZulu-Natal
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 529 – 547
https://doi.org/10.47348/SLR/2022/i3a9

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Shozi, B, Hazarilall, R and Thaldar, D
Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)
Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 529 – 547
https://doi.org/10.47348/SLR/2022/i3a9

Abstract

The recent case of QG v CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021) concerns a sperm donor who applied to the court for parental responsibilities and rights in respect of a child conceived with his sperm. This is despite the fact that he had concluded a written agreement with the child’s legal parents before the child’s conception which stipulated, inter alia, that he would have no such responsibilities and rights in respect of the child. The ruling of the High Court in this case is a significant development in South African reproductive law, as the first case that deals with the legal position of a sperm donor with regard to a donor-conceived child. The following important legal principles that were laid down in the case are identified and analysed. First, there is no prohibition on a sperm donor or his family members from approaching the court in terms of section 23 or 24 of the Children’s Act 38 of 2005 to acquire parental responsibilities and rights in respect of the donor-conceived child. However, if a sperm donor or his family members bring an application in terms of section 23 or 24, they cannot rely on their genetic link with the donor-conceived child. Secondly, sperm donor agreements are in principle legal and enforceable, but the court is not bound to enforce provisions dealing with parental responsibilities and rights if it is of the opinion that such provisions are not in the best interests of the child. A sperm donor agreement may, however, be informative regarding the parties’ intentions. Criticism is expressed about the way in which the court dealt with the issues of the locus standi of donors and the psychological evaluation of donors and recepients where known donors are used.

Clarity, consistency, and community convictions: understanding the defence of consent in South African criminal law

by | Oct 26, 2022 | SACJ, SACJ V35 I2 2022

Clarity, consistency, and community convictions: understanding the defence of consent in South African criminal law

Author: Jameelah Omar

ISSN: 1996-2118
Affiliations: LLB LLM (Cape Town), Associate Professor, Faculty of Law, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 35 Issue 2, p. 131 – 155
https://doi.org/10.47348/SACJ/v35/i2a1

Abstract

This article will consider the defence of consent and whether its conception has changed over the years through jurisprudence. It will focus on a few areas that have seen developments in relation to the defence, namely, active euthanasia, sadomasochism, and sexual offences.

Comparing sentencing for robbery with Strafzumessung für Raub

by | Oct 26, 2022 | SACJ, SACJ V35 I2 2022

Comparing sentencing for robbery with Strafzumessung für Raub

Author: SS Terblanche

ISSN: 1996-2118
Affiliations: BJuris (PU for CHE) LLD (Unisa). Honorary Professor, UKZN.
Source: South African Journal of Criminal Justice, Volume 35 Issue 2, p. 156 – 174
https://doi.org/10.47348/SACJ/v35/i2a2

Abstract

It is a safe assumption that robbery exists, as a crime, in virtually every legal system. Very broadly spoken, it is a crime that consists of the forceful taking of another person’s property. Robbery is often regarded as one of the more serious crimes that can be committed. Such seriousness is then reflected in the severity of the sentence imposed on the robber. However, not all robberies are equally serious.
What factors determine whether one robbery is more or less serious than another? From a South African perspective, the answer to this question is far from certain. This uncertainty exists even though robbery is prevalent – in other words, there is much potential in South African criminal justice to provide a more certain answer.
This contribution explains how South African courts approach sentencing for robbery. It starts by briefly discussing the definition of robbery and then moves to principles governing sentencing in South Africa in general, and the sentencing of robbery in particular.1 I then briefly discuss the same subject matter in German law. Finally, the contribution analyses the most pressing issues afflicting sentencing in South Africa and, in this process, contrasts the legal principles that are in place in Germany.

Damages for injuries arising from unlawful shooting by police and other security agents: South Africa, Lesotho, Malawi, Namibia and Swaziland/Eswatini (2)

by | Oct 26, 2022 | SACJ, SACJ V35 I2 2022

Damages for injuries arising from unlawful shooting by police and other security agents: South Africa, Lesotho, Malawi, Namibia and Swaziland/Eswatini (2)

Author: Chuks Okpaluba

ISSN: 1996-2118
Affiliations: LLB, LLM (London), PhD (West Indies), Research Fellow, Centre for Human Rights, University of the Free State
Source: South African Journal of Criminal Justice, Volume 35 Issue 2, p. 175 – 197
https://doi.org/10.47348/SACJ/v35/i2a3

Abstract

The discussion of the South African cases involving wrongful police shootings and the damages awarded in that regard formed the subject of the discussion in the first part of this series. That discussion continues in the current part two which winds up with the analysis of the cases from Lesotho and Malawi involving injuries caused by the use of firearms by police officers and other security agents. The deprivation of personal liberties and physical and other injuries caused by police shootings may appear similar to the heads of damages recoverable in these jurisdictions such that guiding principles are uniformly applied. At the end of the day, the amounts finally awarded differ from jurisdiction to jurisdiction as the courts in the smaller jurisdictions of Southern Africa often emphasise the disparities between their economies and the more developed South African economy such that the amounts finally awarded reflect such socio-economic disparities.

The criminal jurisdiction of the Seychelles Employment Tribunal

by | Oct 26, 2022 | SACJ, SACJ V35 I2 2022

The criminal jurisdiction of the Seychelles Employment Tribunal

Author: Jamil Ddamulira Mujuzi

ISSN: 1996-2118
Affiliations: LLB (Makerere) LLM (UP) LLM (UFS) LLD (UWC), Professor of Law, Faculty of Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 35 Issue 2, p. 198 – 221
https://doi.org/10.47348/SACJ/v35/i2a4

Abstract

The Seychellois Employment Tribunal was established under s 73A of the Employment Act (the Act). Section 6(3)(1) of Schedule 6 to the Act provides that ‘the Tribunal shall have exclusive jurisdiction to hear and determine employment and labour related matters’. Under the Act, employment and labour matters can be divided into two categories: civil and criminal. Section 76 of the Act provides for employment and labour-related offences. The Tribunal started operation in November 2008. Between 3 December 2008 (when the Tribunal handed down its first decision) and 1 December 2021 (when the research for this article was conducted) the Tribunal received 2,478 civil cases and 172 criminal cases. The author studied the criminal cases/files and on the basis of that study. The aim of the study is to illustrate how the Tribunal has interpreted and/or applied s 76 of the Act when dealing with the following issues: the offences under the Act; the prosecution of the offences under the Act; the right to a fair trial; the burden(s) of proof under s 76 of Act; the prosecution of legal persons/companies before the Tribunal; and penalty and sentencing issues. The author argues, inter alia, that the Tribunal should respect the principle of corporate legal personality when dealing with juristic persons accused of committing offences; the reverse onus under s 76(3) of the Act is not unconstitutional; during sentencing, the Tribunal should clearly distinguish between mitigating factors that are applicable to juristic persons and those applicable to natural persons; and that the Attorney-General does not need the consent of the competent officer before he/she can institute a prosecution before the Tribunal.

Abandoning the Spouse, Abandoning the House? Abandonment of Co-Ownership Shares in Immovable Property [Discussion of M V M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020)]

by | Oct 23, 2022 | SLR, SLR V33 I3

Abandoning the Spouse, Abandoning the House? Abandonment of Co-Ownership Shares in Immovable Property [Discussion of M V M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020)]

Author: Richard Cramer

ISSN: 1996-2193
Affiliations: BA (Hons) LLB LLM PhD (UCT), Post-doctoral Fellow: DST/NRF SARChI Research Chair: Mineral Law in Africa, Faculty of Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 548 – 559
https://doi.org/10.47348/SLR/2022/i3a10

Abstract

The case of M v M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020) (“M v M”) is novel in its finding that the abandonment of immovable property is possible in South African law. It is also novel in finding that the requisite intention to abandon a co-ownership share in immovable property could be inferred from the facts of the case. Past case law concerning the abandonment of immovable property always failed to make a finding of abandonment as the requisite intention could never be established. This approach was consistent with our courts’ unwillingness to infer an intention to abandon valuable property in the absence of clear intention to do so. This case note seeks to critique the decision of the court in M v M in light of a legal framework in which the abandonment of landownership does not appear possible given the principle of publicity. It further seeks to ask if there were other avenues available to the court to reach what was an undeniably just outcome on the set of facts before the court.