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.

The Notion of Absolute and Exclusive Ownership: A Doctrinal Analysis

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

The Notion of Absolute and Exclusive Ownership: A Doctrinal Analysis

Authors A J van der Walt, Priviledge Dhliwayo

ISSN: 1996-2177
Affiliations: Distinguished Professor and South African Research Chair in Property Law, Stellenbosch University; Post-doctoral Research Fellow, Department of Public Law, South African Research Chair in Property Law, Stellenbosch University
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 34 – 52

Abstract

In South African law, ownership is usually described as an absolute and exclusive right. The idea of absoluteness can be understood as an indication that ownership is the most complete real right, to distinguish it from limited real rights, or that ownership allows the owner freedom in using the property, but only in so far as the law allows. However, even with these qualifications it remains problematic to describe ownership as an absolute right. This article explores doctrinal perspectives on limitations on ownership and specifically on the right to exclude. It furthermore considers the idea that the absoluteness of ownership implies that the right to exclude is either absolute or central to ownership. The conclusion is that neither ownership nor the right to exclude is absolute in any meaningful sense because ownership is limited by limited real rights and by constitutional and statutory law. Stated differently, ownership and the right to exclude are limited by and within the legal system in which they function.

The Removal from Office of a President: Reflections on Section 89 of the Constitution

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

The Removal from Office of a President: Reflections on Section 89 of the Constitution

Authors Loammi Wolf

ISSN: 1996-2177
Affiliations: Research Associate, Sanlam Centre for Public Management and Governance, University of Johannesburg
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 1 – 33

Abstract

Section 89 of the Constitution regulates the removal from office of the President. The origins of the removal procedures date back to the previous constitutions at a time when the offices of the nominal head of state (State President) and the head of the executive (Prime Minister) were still separated. After the two offices were merged by the 1983 Constitution, the procedures and grounds for the removal from office of the executive President were slightly adapted, but there is little clarity on the difference between a motion of no confidence and the removal from office of the President. The lack of clarity on the nature of these powers also prevails in the 1993 and 1996 Constitutions. It is common cause that the rationale of a motion of no confidence is that the members of Parliament, who elect the leader of the executive and give him or her a mandate to govern, may withdraw that mandate when the Cabinet loses the confidence of Parliament — in both instances with a simple majority vote. It is therefore difficult to justify a two-thirds-majority requirement for the removal from office of the President for a serious violation of the Constitution or the law or for serious misconduct. It can hardly be justified in a constitutional state. The real difficulty is the way in which s 89 of the Constitution has been conceptualised: it deals with the President’s fitness to hold office and the character of the power to examine that is essentially judicial in nature. Unlike measures available to the legislature to hold the executive accountable with a censure motion, a motion of no confidence (s 102) or summons to appear before Parliament (s 56), the seriousness of removal grounds is judged in terms of the principle of proportionality, which functions as a curb on the abuse of power.

An analysis of the contribution of the South African Human Rights Commission to protecting and promoting the rights of children

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

An analysis of the contribution of the South African Human Rights Commission to protecting and promoting the rights of children

Authors Meda Couzens

ISSN: 1996-2126
Affiliations: Senior Lecturer, School of Law, University of KwaZulu-Natal, Durban
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 553 – 585

Abstract

There has been limited research into the activity of South Africa’s national independent human rights institutions (NIHRIs) and their roles in protecting and promoting the rights of children. This article attempts to address this gap by analysing the mandate and the effectiveness of the South African Human Rights Commission (SAHRC) in respect of children’s rights. The mandate and the work of the SAHRC are assessed against the guidelines issued by the United Nations Committee on the Rights of the Child. The article shows that the SAHRC largely complies with the above general guidelines, although improvements are required in terms of the specificity of the mandate pertaining to children, priority given to the rights of children, the diversity of rights issues addressed by the SAHRC, as well as promoting, protecting and monitoring the right of the child to be heard. Positive practices from foreign jurisdictions are used to suggest improvements to the activity of the Commission.

From the grave to the cradle: The possibility of post-mortem gamete retrieval and reproduction in South Africa?

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

From the grave to the cradle: The possibility of post-mortem gamete retrieval and reproduction in South Africa?

Authors Helen Kruuse

ISSN: 1996-2126
Affiliations: Senior Lecturer, Faculty of Law, Rhodes University
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 532 – 552

Abstract

The development of reproductive technologies in the last century, such as effective contraceptive methods, artificial insemination, pre-implantation genetic diagnosis, amongst others, has fundamentally reshaped traditional concepts of reproduction parenthood and has raised practical and ethical concerns. This article describes one such development, namely, post-mortem gamete retrieval (PMGR) for the purposes of posthumous reproduction. In exploring the particular concerns arising from this technology, I argue that South Africa lacks a coherent, considered approach to the issue. In considering models adopted in overseas jurisdictions, and the various bases for the legalisation of such a procedure, I adopt an interest theory of rights to argue for restricted access to such a technology in suitable circumstances.

Victor, Victoria or V? A constitutional perspective on transsexuality and transgenderism

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

Victor, Victoria or V? A constitutional perspective on transsexuality and transgenderism

Authors Cornelius Visser, Elizabeth Picarra

ISSN: 1996-2126
Affiliations: Lecturer in Delict, Law of Negotiable Instruments and Banking Law, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 506 – 531

Abstract

The human experience is informed by the sex assigned to an individual at birth, either as a male or female, and societal perceptions attached to sex and gender. However, this basic premise does not hold true for those individuals who do not develop from their assigned sex such as transsexual and transgendered individuals. South African law, as informed by the Constitution, has comparatively developed extensively regarding the accommodation of the ‘transsexual experience’ and allows post-operative transsexual and transgendered individuals to change their assigned sex in terms of the Alteration of Sex Description and Sex Status Act 49 of 2003 and the Births and Deaths Registration Act 51 of 1992. However, this legal framework is based on prevailing gender stereotypes and constructs that conflate the notions of sex, gender and sexual orientation. As such, the current legal framework does not allow pre-operative transsexual and transgendered individuals to change their assigned sex, which is arguably discriminatory and inconsistent with the Constitution. This framework ignores the valid reasons of individuals not choosing to undergo invasive ‘sex change’ operations and can therefore be challenged on a myriad of constitutional guarantees. It is doubted, however, whether any future laws will meet these individuals’ needs unless there is a clearer understanding of the concepts of sex, gender and sexual orientation and their interaction with each other. It is proposed that the application of Francisco Valdez’s eight-point strategy to dissipate these conflations in law would lead possibly to the elimination of existing legal discriminations.