scholarly journals The Continued Criminality of Selling Sex: A Trajectory of South African Sex Work Law Reform

2021 ◽  
pp. 1-23
Author(s):  
Amanda Spies
Keyword(s):  
South Africa ◽  
South African ◽  
Sex Work ◽  
Sex Workers ◽  
Legal Regulation ◽  
Law Reform ◽  
Constitutional Rights ◽  
The South ◽  
Sex Work Policy ◽  
Rights Discourse

Abstract This article explores the regulation of sex work in South Africa and follows the trajectory of the South African Law Reform Commission (SALRC) in investigating whether sex work should be decriminalized. The legal regulation of sex work is a hotly contested topic. South Africa currently criminalizes the selling and buying of sex, but policy reform has been on the cards since the SALRC launched its project on the topic in the early 2000s. As most sex work policy responses are grounded in feminist theory, the article analyses the main theoretical ideologies and questions the influence of these ideologies in structuring sex work law reform in the South African context. The author calls for a more inclusive understanding of feminism and sex work, and the need to acknowledge the importance of rights discourse in furthering political growth and protecting sex workers’ constitutional rights.

scholarly journals Policing of sex work in South Africa: The positive policing partnership approach

2019 ◽  
Vol 4 (4) ◽  
pp. 80-85
Author(s):  
Donna Maree Evans ◽  
Marlise L. Richter ◽  
Munyaradazi I. Katumba
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Law Enforcement ◽  
South African ◽  
Sex Work ◽  
Sex Workers ◽  
Police Training ◽  
Human Rights Violations ◽  
The South ◽  
Sex Worker

All aspects of sex work are criminalized in South Africa. Due to their marginalized position in society, sex workers are often the target of police violence and human rights violations, all of which have far-reaching implications for public health. Existing complaint mechanisms and police oversight structures rarely ensure accountability for sex worker human rights violations. In 2016, various sex work sector stakeholders and allied civil society members partnered in a collaborative project to document the operational policing challenges and record a contemporary evidence base of sex worker rights violations by law enforcement. The findings demonstrated that violation of sex worker human rights is systemic, pervasive, and entrenched. The project approach helped catalyze a move away from more traditionally adversarial approaches, withstakeholders from the South African sex work sector forming the Positive Policing Partnership (PPP) as an advocacy vehicle to drive positive, solution-focused engagement on the operational policing challenges. The PPP focuses on collaboration, innovative partnerships, and capacity building. Concurrently, the COC Netherlands Dignity, Diversity and Policing project has successfully embedded a rights-based police training curriculum in partnership with the South African Police Service (SAPS). These projects employ different strategies and frameworks to catalyze positive change and to support effective engagement between the sex work sector, law enforcement, and government. This article provides a snapshot of the formation, activities and progress of these projects to date, teamed with a summary of key strategies and learnings.

PALESTINE, APARTHEID, AND THE RIGHTS DISCOURSE

2004 ◽  
Vol 34 (1) ◽  
pp. 68-80 ◽  
Author(s):  
Raef Zreik
Keyword(s):  
South Africa ◽  
South African ◽  
Historical Context ◽  
The South ◽  
Occupied Territories ◽  
Rights Discourse ◽  
Apartheid Regime ◽  
Main Components

Since the fall of the apartheid regime in South Africa, the oft-made analogy between the South African and Israeli cases has been extended to suggest the applicability to the Palestinian quest for justice through the rights discourse, arguably the most effective mobilizing tool in the anti-apartheid struggle. This essay explores the suitability of the rights approach by examining the South Africa––Israel analogy itself and the relevance of the anti-apartheid model to the three main components of the Palestinian situation: the refugees, the Palestinians of the occupied territories, and the Palestinian citizens of Israel. It concludes that while the rights discourse has many advantages, it cannot by its very nature——the focus on law at the expense of historical context——address the complexity of the Palestinian problem.

Administrative Justice in Kenya: Learning from South Africa's Mistakes

2018 ◽  
Vol 62 (1) ◽  
pp. 105-128
Author(s):  
Cora Hoexter
Keyword(s):  
South Africa ◽  
South African ◽  
Constitutional Rights ◽  
The South ◽  
Administrative Action ◽  
African Experience ◽  
Administrative Justice

AbstractThe wording of article 47 of Kenya's Constitution of 2010 is almost identical to that of the section 33 rights to just administrative action in South Africa's 1996 Constitution. Like section 33, article 47 mandates the enactment of legislation to give effect to these constitutional rights, and Kenya's Fair Administrative Action Act 4 of 2015 was strongly influenced by the equivalent South African legislation, the Promotion of Administrative Justice Act 3 of 2000 (PAJA). South Africa can thus be regarded as a sort of laboratory for Kenyan administrative justice. The aim of this article is to highlight some of the South African experience in relation to section 33 and the PAJA in the hope that Kenya will learn from some of South Africa's mistakes. It argues that the Kenyan courts should avoid following the example of their South African counterparts in allowing their mandated legislation to become almost redundant.

scholarly journals Constitutional Mimicry and Common Law Reform in a Rights-Based Post-Colonial Setting: The Case of South Africa and Malawi

2009 ◽  
Vol 53 (1) ◽  
pp. 142-170
Author(s):  
Sibo Banda
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Law Reform ◽  
Bill Of Rights ◽  
The South ◽  
Post Colonial ◽  
The Common

AbstractCompetent courts in Malawi must, as courts have done in South Africa, undertake a radical path in order to enhance the common law position of distinct categories of persons. This article discusses judicial appreciation of the common law-changing function of a bill of rights and its associated values, and judicial understanding as to when such a function may be brought into play. The article examines approaches taken by courts in South Africa in determining the circumstances in which the South African Bill of Rights applies to private relationships, when private parties owe each other duties arising out of the Bill of Rights and the scope of a court's authority to amend the common law in that regard. The article projects the debate, analysis and critique of these approaches onto the Malawian legal landscape through a discussion of the tenant worker contracted on the Malawi private estate.

scholarly journals WHAT HAPPENED TO THE CHILD JUSTICE BILL? The process of law reform relating to child offenders

2006 ◽  
Author(s):  
Jacqui Gallinetti
Keyword(s):  
South Africa ◽  
South African ◽  
Justice System ◽  
Law Reform ◽  
The South ◽  
Child Rights ◽  
Public Hearings ◽  
State Of Affairs

Children who are accused of crimes in South Africa are governed by the same legislation as adults. The urgent need to develop a separate child justice system culminated in the release of the draft Child Justice Bill in 2000 by the South African Law Reform Commission (SALRC). A product of thorough research and consultation, the revised Bill was introduced to parliament in August 2002. The changes made after public hearings and debates in parliament in 2003 saw the whittling away of the overall child rights nature of the Bill. To add insult to injury, the legislation has, since that year, not been debated again before the portfolio committee and the legislature has provided no explanation for this state of affairs.

scholarly journals DEKRIMINALISERING NIE DIE ENIGSTE STRUIKELBLOK IN SEKSWERKERS SE STRYD OM ARBEIDSREGTE

Obiter ◽  
2021 ◽  
Vol 31 (1) ◽  
Author(s):  
Hennie Oosthuizen ◽  
Rinda Botha
Keyword(s):  
South Africa ◽  
Comparative Study ◽  
South African ◽  
Sex Work ◽  
Sex Workers ◽  
Criminal Offence ◽  
Sex Trade ◽  
Independent Contractors ◽  
Labour Rights ◽  
Law Commission

Prostitution is at present still regarded as a criminal offence in South Africa. However, the possibility of the decriminalization of the sex trade enjoys serious consideration by the South African Law Commission. It is generally accepted that the position of sex workers (at present treated as illegal workers) regarding labour rights, will automatically improve with decriminalization. This article focuses mainly on whether indoor sex workers’ access to labour rights will indeed improve. The risk for sex workers of being treated as independent contractors, once decriminalized, in the main enjoys attention and becomes clear from a comparative study with theNetherlands and Victoria (Australia) where sex work has been practised as a legal occupation for several years.

scholarly journals Human germline editing: Legal-ethical guidelines for South Africa

2020 ◽  
Vol 116 (9/10) ◽  
Author(s):  
Donrich Thaldar ◽  
Marietjie Botes ◽  
Bonginkosi Shozi ◽  
Beverley Townsend ◽  
Julain Kinderlerer
Keyword(s):  
South Africa ◽  
South African ◽  
Clinical Application ◽  
Social Inequalities ◽  
Legal Regulation ◽  
Regulatory Environment ◽  
The South ◽  
Ethical Guidelines ◽  
Legal Questions ◽  
African Ethics

Human germline editing holds much promise for improving people’s lives, but at the same time this novel biotechnology raises ethical and legal questions. The South African ethics regulatory environment is problematic, as it prohibits all research on, and the clinical application of, human germline editing. By contrast, the South African legal regulatory environment allows a regulatory path that would, in principle, permit research on human germline editing. However, the legal regulation of the clinical application of human germline editing is uncertain. As such, the current ethical and legal positions in South Africa are in need of reform. Five guiding principles – aligned with the values of the Constitution – are proposed to guide ethical and legal policy reform regarding human germline editing in South Africa: (1) Given its potential to improve the lives of the people of South Africa, human germline editing should be regulated, not banned. (2) Human germline editing clinical applications should only be made accessible to the public if they are proven to be safe and effective. (3) Non-therapeutic human germline editing may be permissible, and should be regulated in the same way as therapeutic human germline editing. (4) The decision on whether to use germline gene editing on a prospective child, should, subject to Principle 2, be left to the prospective parents. (5) Concerns about exacerbating social inequalities should be addressed by measures to increase access. In conclusion, recommendations are made to policymakers and scientists contemplating research in this field.

scholarly journals "Contributory Intent" as a Defence Limiting Delictual Liability

2017 ◽  
Vol 17 (4) ◽  
pp. 1570
Author(s):  
Raheel Ahmed
Keyword(s):  
South Africa ◽  
South African ◽  
The Other ◽  
Law Reform ◽  
The South ◽  
Contributory Negligence ◽  
The Law ◽  
Law Of Delict

In terms of delictual liability, the term "fault" generally refers to the defendant's conduct, whereas "contributory fault" refers to the plaintiff's conduct. "Contributory intent" is a form of "contributory fault" and may apply as a defence limiting delictual liability within the ambit of the Apportionment of Damages Act 34 of 1956 (hereinafter referred to as the "Act"). In terms of the Act, the extent of the plaintiff's as against the defendant's fault is taken into account, resulting (in certain instances) in a reduction of the award to the plaintiff. The Act currently regulates the apportionment of damages based on fault in South Africa. The Act does not specifically provide for conduct performed intentionally, and this also seems to be the situation in quite a few foreign jurisdictions. Initially our courts applied the Act to instances of "contributory negligence" (the other form of "contributory fault") only, but in recent times they have applied it to instances of "contributory intent". This change has occurred as a result of practical situations that arose unexpectedly, where the courts had in the interest of serving justice to deal with cases of intentional conduct on the part of the plaintiff and the defendant. The effect of "contributory intent" as a defence in terms of delictual liability is uncertain and contentious not only in South Africa but in foreign jurisdictions as well. The South African Law Reform Commission undertook a review of the Act and published a report on its findings. The Commission acknowledged that since the Act was passed there have been major developments in the law of delict which the Act has been unable to accommodate, resulting in anomalies in this area of the law. It acknowledged that it is unsatisfactory for our courts to go beyond the parameters of the Act in order to reach a just and equitable result when dealing with the apportionment of liability. The Apportionment of Loss Bill 2003 (hereinafter referred as the "Bill") has been drafted to replace the current Act but has unfortunately not been promulgated. Over ten years have passed since it was drafted. In respect of the Bill, "contributory intent" as a defence limiting delictual liability would be recognised. It is hoped that this contribution will bring about a renewed interest in this forgotten but valuable Bill.

scholarly journals Comment on the Single Marriage Statute: Implications for Customary Marriages

2021 ◽  
Vol 24 ◽  
pp. 1-18
Author(s):  
Fatima Osman
Keyword(s):  
South Africa ◽  
South African ◽  
Law Reform ◽  
The South ◽  
Definition Of

The South African Law Reform Commission is currently canvassing views on a potential single marriage statute that would reconcile the several enactments currently regulating marriage in South Africa. This comment considers the implications of the proposed Bill for the regulation of customary marriages. It argues that the definition of a marriage / life partnership may be under-inclusive and must be expanded to included polygamous – rather than polygynous – relationships without a religious or cultural basis and life partnerships where the partners are not cohabitants. Furthermore, while the Bill is commended for requiring a husband to obtain the consent of existing wives before he enters into a further customary marriage, the Bill must give meaning to the notion of consent. Finally, the Bill must address existing issues within the Recognition of Customary Marriages Act 120 of 1998 which have invalidated a range of customary marriages too often at the expense of women.

scholarly journals DIE MOONTLIKHEID VAN VERPLIGTE MIV-TOETSING VIR SEKSWERKERS IN SUID-AFRIKA NA DEKRIMINALISERING

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
Rinda Botha ◽  
Johann Pienaar
Keyword(s):  
South Africa ◽  
Hiv Testing ◽  
South African ◽  
Sex Workers ◽  
Case Law ◽  
Sex Industry ◽  
The South ◽  
Sex Trade ◽  
Law And Legislation ◽  
Law Commission

At present, the possibility of the decriminalization of the sex trade enjoys serious consideration by the South African Law Commission. With the spread of HIV still a big concern in South Africa, this article investigates the constitutionality of compelling sex workers to undergo HIV-testing, should the sex trade be decriminalized. This is done by examining existing South African case law and legislation in the field of compulsory HIV-testing. The South African position is followed by a comparative study with Nevada (USA) and Victoria (Australia) where sex work has been practised as a legal occupation for several years. Authors are of the opinion that the legislationof both these countries set a good example for South Africa in combating the spread of HIV through the sex industry, once decriminalized.

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