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.

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.

Law, Race and Color in South Africa

1974 ◽  
Vol 4 (3) ◽  
pp. 6-11
Author(s):  
Neville Rubin
Keyword(s):  
South Africa ◽  
South African ◽  
Significant Proportion ◽  
Case Law ◽  
Major Constituent ◽  
The South ◽  
Party Government ◽  
The Law ◽  
Keen Observer ◽  
Entire Apparatus

The word "apartheid" does not appear anywhere in the South African statute book, and a keen observer would be hard put to discover its existence anywhere in the formal texts which make up the law. Yet apartheid is deeply embedded in the law of South Africa.In a country in which neither the content nor the administration of the law has ever been free from racial overtones, twenty-five years of continuous rule by the National Party Government have seen to it that the ideology of segregation has been translated into a formidable pattern of legalized racial discrimination. This pattern is to be observed throughout the entire apparatus of the South African legal system. It is written into the constitution and reflected in the legislature. It is a major constituent of the statute law of the country, and decisions as to the manner in which legislation is to be implemented make up a significant proportion of the case law. Apartheid has involved and influenced both the composition and the conduct of the courts, just as it has affected the legal profession and the teaching of law.

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.

The Definition of Member / Shareholder in the South African Companies Act: A Brief Comparison with Australian Legislation

2020 ◽  
pp. 1-18
Author(s):  
Neels Kilian
Keyword(s):  
South Africa ◽  
South African ◽  
Case Law ◽  
Company Law ◽  
Court Case ◽  
The South ◽  
Appeal Court ◽  
Locus Standi ◽  
Australian Case ◽  
Definition Of

Abstract This article discusses relevant Australian case law with reference to the oppressive remedy in company law. In South Africa, only shareholders who are entered in the shareholders’ register can make use of the remedy, contrary to the Australian application. The Australian case law explains the locus standi of shareholders who are not entered in the register. Reference is also made to South Africa's previous Companies Act 1973 due to the Smyth v Investec appeal court case, where the court applied the principles, relevant to an oppressive remedy under the 1973 act. In this regard, the appeal court's reasoning is compared to that of the Australian court; possible new perspectives relevant to South Africa's new Companies Act 2008 are also discussed. The Australian perspective is included to facilitate investigation of a South African court's approach to oppressive conduct concerning the narrow interpretation of “shareholder”. It is concluded that “shareholder” should also be interpreted to include a beneficial shareholder.

scholarly journals Emergence of Illegality in the Underlying Contract as an Exception to the Independence Principle of Demand Guarantees

2021 ◽  
Vol 53 (3) ◽  
Author(s):  
Michelle Kelly-Louw ◽  
Cayle Lupton
Keyword(s):  
South Africa ◽  
South African ◽  
Case Law ◽  
Willingness To Accept ◽  
Court Cases ◽  
The South ◽  
The Past ◽  
Independence Principle ◽  
English Law ◽  
General Guidance

It is questionable whether illegality in the underlying contract of a demand guarantee can or should constitute a valid exception to this instrument’s independence (autonomy) principle. From earlier English case law and scholarly discussions it appears that the acceptance of such an exception is contentious and, even if it is recognised, its extent remains uncertain. The English courts have previously indicated that they are open to accepting illegality in the underlying contract as an exception to the principle of independence of demand guarantees, but have not developed the exact parameters of such an exception. In the past, there were no South African court cases where illegality in the underlying contract was accepted, or even considered, as a possible exception to the independence principle of a demand guarantee. In a recent South African case, Mattress House (Proprietary) Ltd v Investec Property Fund Ltd, we find the first evidence of a South African High Court’s willingness to accept the possibility of illegality in the underlying contract as constituting a valid exception. In this article we discuss this South African case, which provides general guidance on the possibility of accepting such an exception under the South African law. South Africa is always persuasively influenced by English law in relation to demand guarantees.  Therefore, we also discuss the English law.  

scholarly journals MARITAL RAPE: A TALE OF TWO LEGAL SYSTEMS

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
Oyebanke Yebisi ◽  
Victoria Balogun
Keyword(s):  
South Africa ◽  
South African ◽  
Criminal Law ◽  
Common Law ◽  
Case Law ◽  
Criminal Code ◽  
Marital Rape ◽  
The South ◽  
Sexual Offences ◽  
The Common

Marital rape is a form of sexual violence, which is often downplayed due to the common law position that a man cannot rape his wife. While certain jurisdictions have enacted laws criminalising it, other jurisdictions have yet to criminalise it. This paper focuses on the criminal aspects of marital rape and examines the laws regarding marital rape in South Africa and the general rape provisions in Nigeria. While marital rape is punishable under South African criminal law, it is not in Nigeria. In this paper, the provisions of the South African Criminal Law (Sexual Offences and Other Related Matters) Act of 2007, the Criminal Code Act, and the Penal Code Act – Nigeria in relation to rape and marital rape – are analysed. This paper also discusses the South African Sexual Offences Court, sentencing for rape in the selected countries, and relevant case law. It concludes that South Africa (SA) has a generally good framework with respect to rape and marital rape, but the country should work more on the strict application of the laws in place. It also suggests that Nigeria should establish a sexual offences court using the South African model and should amend the Criminal Law to expressly criminalise marital rape.

scholarly journals A South African–Australian Perspective on the Legal Implications Related to being “Entitled to Serve” as a Director

2020 ◽  
Vol 23 ◽  
pp. 1-27
Author(s):  
Neels Kilian
Keyword(s):  
South Africa ◽  
South African ◽  
Case Law ◽  
Federal Court ◽  
Interesting Case ◽  
The South ◽  
Legal Implications ◽  
The Republic

This article focuses on an Australian piece of legislation and interesting case law, as well as how the Federal Court of Australia has applied Australia’s Corporations Act 2001, to characterise a person as a de facto director – that is, as a professed director whose appointment as such was defective. In this regard, the decisions of that Court will, as envisaged in the Constitution of the Republic of South Africa 1996, constitute persuasive authority. The Australian decision to be discussed in this article is significant in that the South African Companies Act 71 of 2008 does not contain substantively similar provisions to those of Australia’s Corporations Act 2001. For example, section 66(7) of the Companies Act 2008, contains the phrase “entitled to serve” as a director. This article explains the legal implications relevant to that expression, including whether it imposes a statutory condition precedent. This article also considers the validity of decisions taken by a person who is not “entitled to serve” as a director.

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.

scholarly journals Dilemma of Muslim women regarding divorce in South Africa

2017 ◽  
Vol 7 (2) ◽  
pp. 43
Author(s):  
N Gabru
Keyword(s):  
South Africa ◽  
South African ◽  
Islamic Law ◽  
Family Law ◽  
Muslim Women ◽  
Daily Basis ◽  
The South ◽  
The Right ◽  
Legal Grounds ◽  
Law Commission

On a daily basis people enquire about the dissolution of Islamic marriages, in terms of South African law In South Africa. There exist no legal grounds for obtaining a divorce in a South African court, for persons married in terms of the Islamic law only. The reason for this is due to the fact that Muslim marriages are currently not recognised as valid marriages in terms of South African law. The courts have stated that the non-recognition of Islamic marriages is based on the fact that such marriages are potentially polygamous.In South Africa, marriages may be dissolved by the death of one of the spouses or by divorce. In terms of the Divorce Act, a decree of divorce will be granted by a court of law. Islam grants the husband the right of divorce and also grants the wife the right to request and apply to dissolve the marriage through what is known as Khula, the woman also has the right to a delegated divorce. If the husband dissolves the marriage by divorcing his wife, he cannot retrieve any of the gifts he has given her. Islam further makes provision for the "reasonable maintenance" of divorced women.  The non-recognition of Islamic marriages has the effect that a person married in terms of Shari'ah only, has no right to approach a court of law for a decree of divorce and, unless a husband divorces his wife in terms of the Shari'ah, the wife is trapped in a marriage, even if the marriage has broken down irretrievably. Thus a custom in South Africa has developed, whereby Muslim husbands refuse to divorce their wives in terms of Islamic law, so as to punish the wife. The wife in turn cannot make use of the South African judiciary to obtain a divorce, because of the non-recognition of her marriage. This is a burden, which is in direct conflict with Islamic law. In 2000 a Bill was drafted by the South African Law Commission. This act will recognise Islamic family law within a constitutional framework. This article deals with the dilemma that a Muslim woman is faced with in South Africa with regards to divorce.

Foreigners' Rights to Work and Fair Labour Practices in South Africa: A Review of the South African Labour Legislation and Jurisprudence

2020 ◽  
Vol 35 (1) ◽  
Author(s):  
Andre Mangu
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
Legislation And Jurisprudence ◽  
Foreign Nationals ◽  
Lay Persons ◽  
Democratic State ◽  
Labour Legislation

After several decades of apartheid rule, which denied human rights to the majority of the population on the ground of race and came to be regarded as a crime against humanity, South Africa adopted its first democratic Constitution in the early 1990s. The 1996 Constitution, which succeeded the 1993 interim Constitution, is considered one of the most progressive in the world. In its founding provisions, it states that South Africa is a democratic state founded on human dignity, the achievement of equality, the advancement of human rights and freedoms. The Constitution enshrines fundamental human rights in a justiciable Bill of Rights as a cornerstone of democracy. Unfortunately, in the eyes of a number of politicians, officials and lay-persons, the rights in the Bill of Rights accrue to South African citizens only. Xenophobia, which has been rampant since the end of apartheid, seems to support the idea that foreigners should not enjoy these rights. Foreign nationals have often been accused of posing a threat to South African citizens with regard to employment opportunities. In light of the South African legislation and jurisprudence, this article affirms the position of the South African labour law that foreign nationals are indeed protected by the Constitution and entitled to rights in the Bill of Rights, including the rights to work and fair labour practices.

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