ISSN: 1996-2177
Affiliations: North-West University
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 209 – 214
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ISSN: 1996-2177
Affiliations: Candidate Attorney, Bowman Gilfillan Inc; Associate Professor in Law, University of Cape Town
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 184 – 208
The rule of law, a founding value of the South African Constitution, is a complex ideal. It comprises principles that, on occasion, pull in different directions. This conflict within the rule of law is laid bare in administrative law. The tension is most acute when a court is called upon to remedy unlawful administrative action. On one hand unlawful administrative action ought to have no legal effect. On the other hand, considerations of certainty and practicality may require courts to decline to set aside unlawful administrative action with retrospective effect. Sometimes unlawful administrative action may justifiably have legal effects. This article first demonstrates how this apparent paradox is visible at all stages of the application of administrative law. The article then turns its focus to the remedial stage: that is, when a court has to decide when it is just, equitable and in the public interest not to quash an unlawful administrative act. To this end we explain the proper relationship between the remedial provisions of the Constitution and the Promotion of Administrative Justice Act. We then propose a non-exhaustive set of considerations that ought to guide the courts’ exercise of remedial discretion which may assist the incremental development of a principled and predictable jurisprudence.
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
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.
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
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.
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
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.
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
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.