scholarly journals Prêt-à-Porter Procreation: Contemplating the Ban on Preimplantation Sex Selection

2019 ◽  
Vol 22 ◽  
pp. 1-36
Author(s):  
Sheetal Soni
Keyword(s):  
South Africa ◽  
South African ◽  
Sex Selection ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Preimplantation Genetic Testing ◽  
Foreign Law ◽  
The Republic ◽  
The Right

Preimplantation genetic testing makes it possible to genetically test in vitro embryos for the presence of genetic disease. It also identifies the sex of the embryo. Preimplantation sex selection is prohibited in a number of jurisdictions, including South Africa. Sex selection may be considered to be included in the ambit of the right to reproductive autonomy under the Constitution of the Republic of South Africa, 1996. An analysis of international human rights law supports such a view, and a comparison with foreign law suggests that South Africa should be wary of adopting blanket prohibitions without considering their context. The analysis demonstrates that a prohibition of preimplantation sex selection may have no place in South African law.

scholarly journals Die reg van die homoseksuele ouer om beheer en toesig oor 'n kind te verkry in die lig van die bepalings van die Grondwet

2017 ◽  
Vol 2 (2) ◽  
pp. 1
Author(s):  
Antoinette Kotze
Keyword(s):  
South Africa ◽  
South African ◽  
Case Law ◽  
Constitutional Protection ◽  
Homosexual Orientation ◽  
Foreign Law ◽  
Custody Disputes ◽  
Access Rights ◽  
The Republic ◽  
The Right

The problematic nature of the right of a homosexual parent to vest custody over a child is biarticulated: the nature and extent of custody disputes as well as the issues of discrimination based on sexual orientation are relevant. Homosexual orientation is emotional and controversial, all the more when it is accompanied by custody disputes. In this context the constitutional protection given to human rights and the constitutional provisions containing constitutional values are of paramount importance. The contents of these provisions have direct consequences for custody disputes and homosexual parenthood. In the pre-constitutional dispensation, the court gave judgement in Van Rooyen v Van Rooyen 1994 2 SA 325 (W) on the awarding of access rights to a homosexual parent. With regard to the provisions of the Constitution of the Republic of South Africa 108 of 1996 and trends in relevant foreign law, the decision in the Van Rooyen case is subjected to criticism. Since the commencement of the Constitution of the Republic of South Africa 200 of 1993, no South African court has given judgement on this issue. The aim of this contribution is to set out an autochthonous frame of reference considering the provisions of the Constitution, case law and comparative foreign law in an attempt to resolve the issue under discussion.

scholarly journals The Criminalization of Torture in South Africa

2015 ◽  
Vol 60 (1) ◽  
pp. 83-109
Author(s):  
Lovell Fernandez ◽  
Lukas Muntingh
Keyword(s):  
South Africa ◽  
South African ◽  
International Crime ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
The South ◽  
International Human Rights ◽  
Convention Against Torture ◽  
United Nations Convention ◽  
Degrading Treatment

AbstractThis article describes the politics related to the criminalization of torture in South Africa. It studies the differences between torture as an international crime and as a crime under international human rights law. The South African anti-torture law is analysed and critiqued against the standards and provisions set out in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The article recommends amendments to the South African law, aimed at making the combating of torture more effective.

scholarly journals Raamwerkwetgewing ter Verwesenliking van die Reg op Toegang tot Voldoende Voedsel

2017 ◽  
Vol 15 (5) ◽  
pp. 228
Author(s):  
Anél Terblanche ◽  
Gerrit Pienaar
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Food Security ◽  
South African ◽  
The South ◽  
The Republic ◽  
The Right ◽  
Human Rights Based Approach ◽  
Right Of Access ◽  
Sufficient Food

Various South African government reports list food security as a development priority. Despite this prioritisation and despite the fact that South Africa is currently food self-sufficient, ongoing food shortages remain a daily reality for approximately 35 percent of the South African population. The government's commitment to food security to date of writing this contribution manifests in related policies, strategies, programmes and sectoral legislation with the focus on food production, distribution, safety and assistance. A paradigm shift in the international food security debate was encouraged during 2009, namely to base food security initiatives on the right to sufficient food. During a 2011 visit to South Africa, the Special Rapporteur for the Right to Food of the United Nations, accordingly confirmed that a human rights-based approach to food security is necessary in the South African legal and policy framework in order to address the huge disparities in terms of food security (especially concerning geography, gender and race). A human rights-based approach to food security will add dimensions of dignity, transparency, accountability, participation and empowerment to food security initiatives. The achievement of food security is further seen as the realisation of existing rights, notably the right of access to sufficient food. The right of access to sufficient food, as entrenched in section 27(1)(b) of the Constitution of the Republic of South Africa, 1996 will accordingly play a central role within a human rights-based approach to food security. Section 27(2) of the Constitution of the Republic of South Africa, 1996 qualifies section 27(1)(b) by requiring the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of the section 27(1) rights. The South African government's commitment to food security, as already mentioned, currently manifests in related policies, strategies and programmes, which initiatives will qualify as other measures as referred to in section 27(2) mentioned above. This contribution, however, aims to elucidate the constitutional duty to take reasonable legislative measures as required by section 27(2) within the wider context of food security. This contribution is more specifically confined to the ways in which a human rights-based approach to food security can be accommodated in a proposed framework law as a national legislative measures. Several underlying and foundational themes are addressed in this contribution, amongst others: (a) the relationship between food security and the right of access to sufficient food; (b) food security as a developmental goal; and (c) the increasing trend to apply a human rights-based approach to development initiatives in general, but also to food security.

scholarly journals The Powers of the Court in terms of Section 7(2) of the Domestic Violence Act 116 of 1998: KS v AM 2018 (1) SACR 240 (GJ)

Obiter ◽  
2019 ◽  
Vol 40 (3) ◽  
Author(s):  
Moffat Maitele Ndou
Keyword(s):  
South Africa ◽  
Domestic Violence ◽  
Well Being ◽  
International Human Rights Law ◽  
Rights Of The Child ◽  
Legal Remedy ◽  
Wide Range ◽  
The Republic ◽  
Definition Of ◽  
The Right

The preamble of the Domestic Violence Act (116 of 1998) (DVA) recognises that domestic violence is a serious social evil and that there are high incidences of domestic violence in South Africa. The preamble further recognises that:a) victims of domestic violence are among the most vulnerable members of society;b) domestic violence takes many forms and may be committed in a wide range of domestic relationships; andc) the remedies previously available to victims of domestic violence have proved to be ineffective.The Constitution of the Republic of South Africa, 1996 (the Constitution) provides various rights that are also applicable to victims of domestic violence. The Constitution guarantees the right to dignity and to freedom and security of the person (see ss 10 and 12 of the Constitution respectively). Domestic violence against any person is a violation of these rights. The DVA further recognises that South Africa has international commitments to end violence against women and children in terms of the United Nations Convention on the Elimination of all Forms of Discrimination against Women and the Convention on the Rights of the Child. A right not to be subjected to domestic violence may not be specifically mentioned in international human rights law instruments, but freedom from all kinds of violence and the right to equality and human dignity is generally emphasised.The purpose of the DVA is to provide a legal remedy in the form of an interdict that prohibits a person from violating the rights of the complainant. In order to give effect to this purpose, section 7(1) of the DVA provides that the court may grant a protection order to protect the rights of the complainant. Section 7(2) of the DVA further grants the court the power to impose any additional conditions that it deems reasonably necessary to protect and provide for the safety, health or well-being of the complainant.In KS v AM (2018 (1) SACR 240 (GJ)), the court found that section 7(2) of the DVA empowered the court to order the seizure of the respondent’s digital equipment to remove any photograph, video, audio and/or records relating to the complainant. This case note examines the decision in KS v AM (supra) and determines whether the decision is justifiable in law. The definition of domestic violence is discussed first and thereafter the remedies available in terms of the DVA are examined. A discussion of the judgment in KS v AM (supra) follows.

scholarly journals The Right to Just Administrative Action in the Context of Suspending the Payment of Disputed Tax

2017 ◽  
Vol 20 ◽  
pp. 1-26
Author(s):  
Silke De Lange ◽  
Danielle Van Wyk
Keyword(s):  
South Africa ◽  
Literature Review ◽  
South African ◽  
Tax Administration ◽  
Research Approach ◽  
Administrative Action ◽  
The Republic ◽  
The Right ◽  
Relevant Factors ◽  
Discretionary Powers

Section 164(3) of the Tax Administration Act 28 of 2011 (hereafter TAA) provides a senior South African Revenue Service official (hereafter, respectively, SARS and senior SARS official) with discretionary powers to suspend the payment of disputed tax or a portion thereof, having regard to relevant factors, if the taxpayer intends to dispute the liability to pay such tax. Exercising a discretion in terms of section 164(3) of the TAA constitutes administrative action. Section 33(1) of the Constitution of the Republic of South Africa, 1996 (hereafter Constitution) grants everyone the right to just administrative action that is lawful, reasonable and procedurally fair and the Promotion of Administrative Action Act 3 of 2000 (hereafter PAJA) was promulgated to give effect to this right. The objective of this article is to apply the right to just administrative action to the manner in which the discretion in terms of section 164(3) of the TAA is exercised. This is achieved by adopting an explanatory research approach and performing a literature review of the discretion process in terms of section 164(3) of the TAA and the constitutional obligations in terms of section 33 of the Constitution as given effect to in PAJA. As the discretion exercised by the senior SARS official is influenced directly by the right to just administrative action, it should be exercised in a lawful, reasonable and procedurally fair manner to ensure compliance with the Constitution and the PAJA. For the discretion to be exercised in a lawful manner, the senior SARS official must at least be authorised to exercise the discretion in terms of the TAA and comply with the procedures and conditions stated in section 164(3) of the TAA. For the decision to be considered reasonable, the decision must be, at the minimum, rational and proportional, and to ensure that the discretion is exercised in a procedurally fair manner, SARS should comply with at least the relevant compulsory elements in terms of section 3(2)(b) of PAJA. A decision in terms of section 164(3) of the TAA which fails to meet the requirements of lawfulness, reasonableness and/or procedural fairness will be subject to review on several grounds listed in section 6(2) of PAJA.     

scholarly journals The Regulations relating to Foodstuffs for Infants and Young Children (R 991): A Formula for the Promotion of Breastfeeding or Censorship of Commercial Speech?

2017 ◽  
Vol 17 (1) ◽  
pp. 295
Author(s):  
Lize Mills
Keyword(s):  
Public Health ◽  
South Africa ◽  
Young Children ◽  
South African ◽  
Commercial Speech ◽  
Department Of Health ◽  
Infant Formulae ◽  
The Republic ◽  
The Right ◽  
Advertising And Promotion

The regulation of commercial speech in the interests of public health is an issue which recently has become the topic of numerous debates. Two examples of such governmental regulation are the subjects of discussion in this article, namely the prohibition on the advertising and promotion of tobacco products, as well as the proposed prohibition on the advertising and promotion of infant formulae and other foods and products marketed as being suitable for infants or young children. The article seek to evaluate the recently proposed regulations published in terms of the Foodstuffs, Cosmetics and Disinfectants Act in the light of the reasoning by the Supreme Court of Appeal in the British American Tobacco South Africa (Pty) Limited v Minister of Health 463/2011) [2012] ZASCA 107 (20 June 2012) decision, and in particular in terms of the section 36 test of reasonableness and proportionality found in the Constitution of the Republic of South Africa, 1996. It argues that, although the South African Department of Health must be applauded for its attempt at improving public health in the country, some of the provisions of the proposed regulations are not constitutionally sound. It will be contended that, despite the fact that the promotion of breastfeeding is a laudable goal, the introduction only of measures which restrict the right to advertise these types of products will not necessarily achieve this objective.

scholarly journals The Right to Strike and Replacement Labour: South African Practice Viewed from an International Law Perspective

2018 ◽  
Vol 21 ◽  
pp. 1-34
Author(s):  
Stefan Van Eck ◽  
Tungamirai Kujinga
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Labour Law ◽  
International Labour Organisation ◽  
Labour Relations ◽  
Essential Services ◽  
The Republic ◽  
Labour Legislation ◽  
The Right

South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the right to strike and the use of replacement labour during strikes falls within the ambits of internationally and constitutionally acceptable labour norms. Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of strike-breakers during legal strikes in non-essential services as a violation of the right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's right to strike and the LRA gives effect to this right. However, the foundation of this right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during strike action. This article investigates whether replacement labour undermines the right to strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation.    

scholarly journals Defending the Absurd: The Iconoclast's Guide to Section 47(1) of the Superior Courts Act 10 of 2013

2017 ◽  
Vol 17 (5) ◽  
pp. 1827
Author(s):  
Haneen McCreath ◽  
Raymond Koen
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
South African ◽  
Conventional Wisdom ◽  
Civil Litigation ◽  
The Supreme Court ◽  
Core Value ◽  
The Republic ◽  
The Right ◽  
Right Of Access

This contribution was intended as a defence of section 25(1) of the Supreme Court Act 59 of 1959. However, the Supreme Court Act was repealed in August 2013 and replaced by the Superior Courts Act 10 of 2013, and in the process section 25(1) of the former gave way to section 47(1) of the latter. Both sections concern the doctrine of leave to sue judges in South Africa. Both prescribe that any civil litigation against a judge requires the consent of the court out of which such litigation is to be launched. Both apply to civil suits against judges for damage caused by either their judicial or their non-judicial conduct.Although section 25(1) had been one of the more inconspicuous sections of the Supreme Court Act, it was contested on occasion. Both curial and extra-curial challenges to section 25(1) assailed its constitutionality, alleging essentially that its provisions violated the right of access to courts enshrined in section 34 of the Constitution of the Republic of South Africa, 1996 and that such violation did not meet the limitation criteria contained in section 36. It may be anticipated with considerable confidence, given its legal continuity with section 25(1), that any serious assault upon section 47(1) of the Superior Courts Act also will focus upon its relationship to section 34 of the Constitution.This contribution is a pre-emptive defence of section 47(1) of the Superior Courts Act and, by extrapolation, a belated justification of section 25(1) of the Supreme Court Act. An attempt will be made to demonstrate, contrary to conventional wisdom, that section 47(1) does not limit section 34 and passes constitutionalmuster at the first level of enquiry, thereby obviating the need for advancing to the second level of enquiry contained in section 36 of the Constitution.The jurisprudential crux of section 47(1) of the Superior Courts Act is embedded in the nature of the judicial office and its core value of judicial impartiality. The procedural immunity which the section affords South African judges is a mechanism for sparing them the nuisance of having to deal with frivolous litigation, either as defendant or as adjudicator. Every specious suit against a judge, per definitionem, represents an incursion into judicial impartiality by urging that the court give credence to a claim which does not qualify for curial adjudication. In this regard, the doctrine of leave to sue seeks to ensure that judges do not have to adjudicate claims which resort beyond the compass of their judicial capacity. It is a doctrine which operates to protect and advance the unimpeachable principle of judicial impartiality.

scholarly journals A CALL FOR A DIFFERENCE IN TREATMENT BETWEEN CHILD AND ADULT OFFENDERS IN THE SOUTH AFRICAN PAROLE SYSTEM: AN INTERNATIONAL LAW PERSPECTIVE

2010 ◽  
Author(s):  
I Gueorguieva
Keyword(s):  
South Africa ◽  
South African ◽  
Best Interests ◽  
Conditional Release ◽  
Correctional Services ◽  
The Republic ◽  
Parole System ◽  
The Right ◽  
And Control ◽  
Good Behaviour

Internationally, parole is recognised and accepted as a means of the conditional release of a sentenced offender from a correctional centre into the community, before the expiration of the judicially imposed sentence of such offender. The functions of the placement on parole of the offender, which associate with the offender, include the rehabilitation of the offender and his reintegration into the community, as well as his restitution (e.g. in the form of symbolic restitution or community service). In Correctional Services authorities, parole acts occur to relieve prison overcrowding, encourage good behaviour within correctional facilities and to save costs related to imprisonment without negating the benefits of continued supervision and control.5 In South Africa, parole is predominantly governed by the Correctional Services Act 111 of 1998 (as amended) or, more particularly chapter IV (dealing with sentenced offenders), chapter VI (community corrections) and chapter VII (release from correctional centre and placement under correctional supervision and on day parole and parole). The provisions of chapter IV came into operation on 31 July 2004, whilst those of chapters V and VI came into operation on 1 October 2004.6 In addition, the provisions of the Correctional Services B-Order, Sub-Order 1, Incarceration Administration (hereinafter referred to as the Parole Manual) go a long way in clarifying and expanding on provisions in the Correctional Services Act, as well as indicating the practice and policy of the various functionaries involved in the parole system. Section 28(1)(g) of the Constitution of the Republic of South Africa, 1996 (Constitution), on the other hand, provides that a child has the right not to be detained except as a measure of last resort and then only for the shortest appropriate period. Section 28(2) further provides that a child’s best interests are of paramount importance in every matter concerning the child. The question can then be raised: what effect do the above provisions have on the parole consideration of child offenders? Additionally, one can ask whether there is sufficient justification for a difference in parole treatment between child and adult offenders.

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