Teaching Sexual Offences Sensitively: Not a Capitulation but Good Pedagogy

by | Oct 28, 2019 | SLR, SLR V29 I1

Teaching Sexual Offences Sensitively: Not a Capitulation but Good Pedagogy

Authors Jameelah Omar

ISSN: 1996-2193
Affiliations: Lecturer, University of Cape Town
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 90 – 106

Abstract

Sexual offences form a part of the criminal law syllabus during the LLB programme at most South African law schools. All law graduates in South Africa should have the knowledge and skills to understand the nuances and sensitivities related to sexual offences. The option of avoiding the subject matter entirely is not viable given the prevalence of sexual offences in South Africa. Sexual offences are inherently uncomfortable to talk about. For some students, the discomfort of talking about sexual offences is actually secondary trauma as a result of their own past experiences or those of close family members or friends. This must be factored into how the law in this area is taught. The need to balance the social context with legal content is an ongoing debate in law schools, particularly considering the demand for decolonised syllabi. Lecturers of sexual offences must strive to do both: teach the technical law and introduce students to the intersectional issues of gender and power that is closely connected to the law on sexual offences. This article considers the importance of teaching sexual offences and affirms the need for reflection by lecturers on how sensitive topics have been taught historically. The article establishes several classroom practices that can mitigate secondary trauma, including how sexual offences should be assessed constructively. The legal profession is an important role player in the criminal justice system and includes defence lawyers, prosecutors, judicial officers and activists. The importance of the topic and how it is taught should form part of the training law students receive that prepares them to challenge rape culture in the practice of the law when they encounter it in their legal careers.

Property Rights and their Continued Open-Endedness – A Critical Discussion of Shoprite and the Constitutional Court’s Property Clause Jurisprudence

by | Oct 28, 2019 | SLR, SLR V29 I1

Property Rights and their Continued Open-Endedness – A Critical Discussion of Shoprite and the Constitutional Court’s Property Clause Jurisprudence

Authors Max du Plessis, Toni Palmer

ISSN: 1996-2193
Affiliations: Member of the Durban Bar Research Associate, University of KwaZulu-Natal; Member of the Durban Bar
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 73 – 89

Abstract

The article considers the 2015 Constitutional Court decision of Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs and Tourism, Eastern Cape ("Shoprite"). While formally the case concerns a liquor licence, the authors contend that what is really of concern (and what is on display in the judgment) is an approach to section 25(1) of the Constitution that gives very little in the way of guidance, principles, or rules for the determination of property disputes. This context-sensitive review standard, which does not provide much in the way of principles delineating how competing values are to be reconciled, but rather doing so — and reaching outcomes — on an ad hoc basis began with First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services; First National Bank of SA Limited t/a Wesbank v Minister of Finance and has continued since. The authors propose that this may have been a deliberate move by the Constitutional Court to carve out an almost unfettered discretion to decide property cases as it deems fit. This allows the Constitutional Court to reach outcomes in politically awkward cases which actively avoid confrontation with the political branches, whilst still adhering to legal principles and enforcing the Constitution, to the extent possible. Shoprite brings into sharp focus why such an approach is less than satisfying — not least of all since it results in three judges of the Constitutional Court, all applying what is ostensibly the same legal standard (section 25, and FNB), while being unable to agree on a single aspect of the section 25(1) analysis. The authors contend that an approach to constitutional adjudication that makes it difficult for lower court judges, lawyers, government officials and citizens to discern, with some degree of certainty, how the basic law is going to be applied, and to know, with some degree of certainty, that the basic law is going to be applied equally, constitutes a paradigmatic violation of the rule of law.

Gender Normalisation Surgery and the Best Interest of the Child in South Africa

by | Oct 28, 2019 | SLR, SLR V29 I1

Gender Normalisation Surgery and the Best Interest of the Child in South Africa

Authors Rachel Sloth-Nielsen

ISSN: 1996-2193
Affiliations: None
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 48 – 72

Abstract

Children born with Intersex characteristics are routinely subjected to genital normalising surgery, with the decision to undergo this surgery being made by the child’s parents while they are still very young. The international community, including the United Nations ("UN"), has condemned these surgeries. In a ground-breaking decision, the Columbian Constitutional Court ruled that only the child can consent to the surgery and thus the surgery must be postponed until the child is able to consent. In the South African context, these surgeries violate the child’s dignity and autonomy. It is thus argued that these surgeries are not in the best interest of the child. The surgery should therefore not be performed until children themselves can consent in an informed manner.

Marital Rape and the Cultural Defence in South Africa

by | Oct 28, 2019 | SLR, SLR V29 I1

Marital Rape and the Cultural Defence in South Africa

Authors Lea Mwambene, Helen Kruuse

ISSN: 1996-2193
Affiliations: Associate Professor, University of the Western Cape; Senior Lecturer, Rhodes University
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 25 – 47

Abstract

In 2007 the Criminal Law (Sentencing) Amendment Act 38 of 2007 ("Sentencing Amendment Act"), read together with the Criminal Law (Sexual and Related Matters) Amendment Act 32 of 2007 ("Sexual Offences Amendment Act"), effectively took away an accused’s ability to lead cultural and religious evidence in sexual offence charges. This article questions whether it is right to simply legislate away these beliefs which may be necessary to establish the context of an offence. In particular, we question whether this prohibition advances or hinders the constitutional diversity project in South Africa. We further ask whether ignoring an aspect of an accused’s culpability (and his or her knowledge of unlawfulness) only serves to deepen the alienation that many South African indigenous people feel in relation to the legal system. We ask these questions in full knowledge of the seemingly insurmountable problems raised by allowing such evidence in court, particularly in the case of marital rape. For example, we recognise the possibility of the accused using his or her culture in an opportunistic and self-serving way. More seriously, we recognise that the use (and acceptance) of a cultural belief in South Africa could not only perpetuate stereotypes of reified, monolithic, "backward" cultures, but could also lead to racial essentialism which permits the subordination of women of colour in the name of ethnic differences. Being mindful of these problems, this article seeks to escape the simplistic conception of justice as one where "all persons are equal before the law". Instead, we recognise that this system may operate quite separately from people in an embedded community. In this light, we consider whether, in a charge of rape or sexual assault in a customary marriage setting, cultural beliefs can be led in a way that (1) does not essentialise culture; and/or (2) undermine women’s rights.

Subconscious Advocacy – Part 1: Nonverbal Communication in the Courtroom

by | Oct 28, 2019 | SLR, SLR V29 I1

Subconscious Advocacy – Part 1: Nonverbal Communication in the Courtroom

Authors Willem Gravett

ISSN: 1996-2193
Affiliations: Senior Lecturer, University of Pretoria
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 3 – 24

Abstract

Social science has been used with increasing success in a wide variety of human endeavours. For example, marketing, human relations and the delivery of health services are among the widely expanding applications of the classic disciplines of psychology, sociology, anthropology and social psychology. More recently, trial lawyers have also shown increased interest in applying the research findings and theoretical insights of social science to litigation. After all, every law and legal institution is based upon assumptions about human nature and the manner in which human behaviour is determined. Although trial lawyers have been using subconscious nonverbal and verbal persuasion techniques for centuries, social science has recently provided empirical support for trial practice theories that heretofore have been based solely on folklore, intuition and experience. I aim to show that principles of human behaviour derived from social psychological laboratory and field research illuminate the behaviour of actors in the courtroom, equip trial lawyers to better represent their clients, and even suggest ways in which the trial system could be improved. Some scholars claim that the increasing body of psychological literature on the effects of subconscious verbal and nonverbal persuasion, has enabled trial lawyers to improve their courtroom effectiveness to the point where they can "covertly" control how fact-finders decide cases. It is true that social scientists have discovered a myriad of factors that affect judicial decision-making, but that have nothing to do with the merits of the case. However, by communicating this information to trial lawyers, the social scientists have actually decreased the likelihood that these extraneous influences will affect judicial decisions. They have identified existing barriers to rational decision-making, and have devised strategies to reduce their impact, and thereby improve the chances that fact-finders will render better, more informed, and more rational judgments.

Exploring the difficult dialogues technique as a tool for value-added law teaching and learning

by | Oct 27, 2019 | SLR, SLR V30 I1

Exploring the difficult dialogues technique as a tool for value-added law teaching and learning

Authors L van Niekerk

ISSN: 1996-2193
Affiliations: Lecturer, Faculty of Law, University of the Free State
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 138 – 151

Abstract

The increasingly rapid pace of change at universities requires lecturers to adapt their teaching techniques to remain attuned to their students. One of the major challenges faced by lecturers in the field of law is to facilitate learning on contentious issues. In this regard, lecturers at the University of the Free State ("UFS"), for example, are challenged to engage their students in discussions on ground-breaking and/or complex issues, which could be controversial and sensitive issues in the classroom. The objective of these discussions is to highlight the relevant legal principles and concepts, but also to teach students how to put their views across in a civil, democratic fashion, thereby sharpening students’ judicial proficiency, critical thinking as well as argumentation skills in their respective law modules. To assist lecturers to achieve this objective in class, this article examines the Difficult Dialogues technique as a tool in contemporary law teaching. The potential benefits of the technique in meeting the critical outcomes stipulated by the LLB Qualification Standard are established. This is then followed by a practical illustration of how discussion on contentious issues may be integrated with a law module to facilitate value-added teaching and learning. It is concluded that the Difficult Dialogues technique can indeed be used to good effect to not only cover the relevant learning content and meet critical LLB outcomes, but also to teach LLB graduates the skill of democratic discussion on complex issues.