scholarly journals CRITICAL-CARE DECISIONS ON NEONATES AND YOUNG CHILDREN IN ENGLAND AND WALES – LESSONS FOR SOUTH AFRICA

Obiter ◽  
2021 ◽  
Vol 34 (3) ◽  
Author(s):  
Carina van der Westhuizen
Keyword(s):  
South Africa ◽  
Critical Care ◽  
South African ◽  
Neonatal Intensive Care ◽  
Case Law ◽  
Best Interests ◽  
England And Wales ◽  
Child Patient ◽  
Best Interests Standard ◽  
And Child Health

In this article it will be pointed out that in South Africa there are currently insufficient measures in place to protect the child patient, especially the neonate. A perusal of the case law of England and Wales reveals that in a number of cases on critical-care decisions the courts have used their opportunities to lay down criteria on issues such as the withholding or withdrawal of treatment in neonatal intensive care. These cases and the principles laid down in them may serve as precedents for South African case law. The English and Welsh courts have also provided guidelines on the interpretation of the best-interests standard in critical-care decisions. Guidelines on critical-care decisions were drafted by the Royal College of Paediatrics and Child Health, as well as the Nuffield Council on Bioethics. South Africa lacks suchcomprehensive guidelines on critical-care decisions concerning children. It is suggested that a comprehensive set of guidelines be drafted specifically for the unique South African position. 

Legal Recognition for Child-Headed Households: An Evaluation of the Emerging South African Framework

2009 ◽  
Vol 17 (2) ◽  
pp. 299-320 ◽  
Author(s):  
F. Noel Zaal ◽  
Meda Couzens
Keyword(s):  
South Africa ◽  
South African ◽  
Developing Country ◽  
Critical Analysis ◽  
Best Interests ◽  
Limited Resources ◽  
The South ◽  
Legal Recognition ◽  
Aids Pandemic ◽  
Best Interests Standard

AbstractThis article evaluates legislation developed in South Africa for the legal recognition and support of child-headed households. It provides an explanation and critical analysis of new statutory provisions. We show that in a developing country with AIDS pandemic challenges and limited resources such as South Africa reasons in favour of formal legal recognition outweigh those against. We demonstrate, however, that in order to meet the best interests standard it is essential to base recognition on household viability. Our analysis indicates that, although the South African provisions are groundbreaking and of considerable value as an example for other countries, there are some deficiencies which may compromise their effectiveness. Amendments and supplementary wording are proposed.

scholarly journals A COMPARATIVE EXPOSITION OF THE LAW OF HUSBAND AND WIFE IN TERMS OF ISLAMIC LAW, SOUTH AFRICAN LAW AND THE LAW OF ENGLAND AND WALES ‒ PART TWO

Obiter ◽  
2021 ◽  
Vol 42 (2) ◽  
Author(s):  
Razaana Denson
Keyword(s):  
South Africa ◽  
South African ◽  
Islamic Law ◽  
Legal Systems ◽  
England And Wales ◽  
English Law ◽  
The Law ◽  
Muslim Communities ◽  
Personal Law ◽  
Legal Consequences

The article discusses and compares the dissolution of a marriage as well as the legal consequences thereof in Islamic law, South African law and English law. This is done in order to demonstrate that despite similarities, there are vast differences between the three legal systems. This impacts on how Muslim personal law (MPL) can be recognised and regulated in South Africa and in England and Wales as constitutional democracies. South Africa, England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Internal pluralism also exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, as well as with South African and English law. Notwithstanding the accommodation of MPL in terms of South African and English law, the differences between these legal systems have resulted in decisions that, while providing relief to the lived realities of Muslims, are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims.

‘Burn it down!’: Materialising intersectional solidarities in the architecture of the South African Embassy during the London Poll Tax Riot, March 1990

2019 ◽  
Vol 38 (2) ◽  
pp. 233-250 ◽  
Author(s):  
Gavin Brown
Keyword(s):  
South Africa ◽  
Working Class ◽  
South African ◽  
Large Scale ◽  
The South ◽  
The West ◽  
England And Wales ◽  
Metropolitan Police ◽  
Trafalgar Square ◽  
Poll Tax

This paper offers a new way of conceptualising how intersectional solidarities are actualised. It recounts and theorises an outbreak of radical internationalism, when working class struggles in Britain and South Africa were unexpectedly linked. It examines how intersectional solidarity was materialised through a process of coming together against the architectural fabric of the South African Embassy and considers the interwoven temporalities that enabled this action to occur. On 31 March 1990, nearly a quarter of a million people demonstrated in London against the Poll Tax that was due to take effect in England and Wales the following day. On the day, the Metropolitan Police lost control of an already enraged crowd and provoked a large scale riot that engulfed the West End of London for several hours. In the midst of the riot, during a short retreat by the police, protesters took the opportunity to attack the South African Embassy in Trafalgar Square – many windows were broken and an attempt was made to set the building alight. Drawing on interviews with former anti-apartheid protesters who were present on that day (and who had concluded a four-year long Non-Stop Picket of the embassy a month earlier), this paper explores and analyses their memories of that unexpected moment when their previously symbolic call to ‘burn it down’ was (almost) materialised. In doing so, it contributes new ways of conceptualising the spatiality and temporality of intersectional solidarity.

scholarly journals A CRITICAL REFLECTION ON THE SOUTH AFRICAN LAW OF THE CHILD

Obiter ◽  
2014 ◽  
Vol 35 (2) ◽  
Author(s):  
RB Bernard ◽  
MC Buthelezi
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Best Interests ◽  
Teddy Bear ◽  
Wide Range ◽  
Minor Children ◽  
The Common ◽  
The Law ◽  
A Minor

Children are considered to be vulnerable, and therefore need to be protected against parents, strangers and even themselves. As a consequence, the State’s quest for the protection of children in South Africa is expressed in the implementation of legislation designed to offer greater care and protection. For instance, section 28 of the Constitution of the Republic of South Africa, 1996, offers a wide range of rights which are designed to offer greater protection to children. The rights of children can, in effect, be categorized into two themes. The first relates to the protection of children – as the child is dependent on those around him or her due to a lack of capacity, and is therefore vulnerable. The second theme relates to the autonomy of children. Section 28(2) of the Constitution provides that in any matter concerning a child, the best interests of the child are of paramount importance. However, most South African legislative provisions that deal with minor children seem to miss this principle, and are riddled with inconsistencies. In many statutes, where the principle is recognized, there is either limited appreciation of the significance of the principle and its overall impact on issues concerning children, or there is no coherence with the manner the courts have interpreted and applied the principle. For example, the recent judgment of  the Teddy Bear Clinic case declared sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act unconstitutional. The judgment has been heavily criticized by different segments of society for encouraging teens to engage in wanton sexual intercourse, but illustrates some of the flaws in legislation aimed at protecting the welfare of minor children in South Africa. Furthermore, the common law and other legislation such as the Choice on Termination of Pregnancy Act, the Marriage Act, and provisions of the Children’s Act regulating contraceptives and condoms, all contain such inconsistencies. For instance, the common law and section 24 (together with s 26) of the Marriage Act allow a minor from the age of puberty to enter into a valid marriage; section 129 of the Children’s Act requires that a minor aged twelve be assisted by a guardian to undergo a surgical operation; whereassections of the Choice Act do not require parental consent for terminating a minor’s pregnancy. This note reviews the above and other inconsistences currently prevalent in the law of the child in South Africa. A brief overview of the Teddy Bear Clinic case will be considered. Thereafter, it outlines and examines various gender-based contradictions in the law, and examines the possible rationale for justifying the particular legislative measure concerned. The note concludes by proposing possible solutions to the discrepancies that have been identified.

Developing the Jurisprudence of Constitutional Remedies for Breach of Fundamental Rights in South Africa: An Analysis of Hoffman and Related Cases

2018 ◽  
Vol 32 (1&2) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Case Law ◽  
Public Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
The Novel ◽  
Labour Law

In order to accomplish its objectives of extensively regulating rights and obligations, the 1996 Constitution of South Africa similarly provides for the enforcement of those rights by the courts. In turn, it has, in the said enforcement provisions, invested in the courts enormous discretionary powers to enable them to effectively deal with breaches of the entrenched fundamental rights as well as all constitutional rights violations. That the Constitutional Court has purposefully interpreted and made optimum use of the expressions: ‘appropriate relief’ and ‘just and equitable’ order in developing the constitutional remedies jurisprudence is crystal clear from a wealth of available case law. It is also not in doubt that the contributions of Justice Ngcobo (later Chief Justice) in this regard are intellectually gratifying. This presentation singles out for discussion and analysis the judgment of Ngcobo J in Hoffman v South African Airways 2001 (1) SA 1 (CC) which not only typifies judicial activism at its acme; it has also introduced into the South African public and labour laws, the novel remedy of ‘instatement.’ Apparently drawn from the analogy of the labour law remedy of reinstatement, ‘instatement’ is akin to the remedy of mandamus in public law, and specific performance in the law of contract. This article moves from the premise that this innovation is one of its kind in contemporary common law jurisprudence and one which courts in the common law jurisdictions world would no doubt emulate one fine day.

A Trans Man as a “Gestational Parent”: Trans Parenting and the Best Interests of the Child

2021 ◽  
Vol 2021 (2) ◽  
pp. 234-252
Author(s):  
Brigitte Clark
Keyword(s):  
South African ◽  
Medical Science ◽  
Case Law ◽  
Best Interests ◽  
Coherent System ◽  
Parents And Children ◽  
Gender Reassignment ◽  
Legislative Policy ◽  
And Gender ◽  
Gender Categories

The understanding of gender identities has evolved in response to legislative, policy, political, cultural and social change, but despite these shifts, transgender issues remain under‐explored, and marginalised in South African law and society generally. Transgender is an umbrella term for a person whose gender identity, and gender expression, do not conform to that normatively associated with the gender they were assigned at birth, and for persons who are gender transgressive. Transgender parenting constitutes a direct challenge to “normal” notions of family as transgender parents challenge traditional assumptions about families. Although some jurisdictions have moved beyond gender categories to broader categories of gender‐inclusive parenting, there is no legislative provision in South African law for transgender parents who conceive after having legally transitioned but not having undertaken gender reassignment surgery. After an analysis of recent case law in England and advances in reproductive medical science in this area, this article focuses particularly on whether the registration of trans parents in their chosen legal gender (or as a genderneutral parent) conflicts with the best interests of their children in relation to the lived reality of their children’s lives, the rights of trans parents and children to privacy and family life, and the children’s rights to know their genetic origins. After considering whether the rights of trans parents should be limited in the interests of their children, the article argues that South African legislation and case law should advance beyond the gendered, heteronormative concept of the family currently in operation so as not to limit the rights of trans parents. An administratively coherent system of birth registration that is in the best interests of children could be realised by changing the legal nomenclature to reflect the biological role of the trans parent without the binary connotations of gender.

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 An Employer's Recourse to Lock-Out and Replacement Labour: An Evaluation of Recent Case Law

2017 ◽  
Vol 20 ◽  
pp. 1-31
Author(s):  
Monray Marsellus Botha ◽  
Motsoane Lephoto
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
South African ◽  
Industrial Relations ◽  
Case Law ◽  
Recent Case ◽  
Economic Power ◽  
Rights And Interests ◽  
State Of Affairs

South African labour affairs are in a volatile state. Conflicting rights and interests as well as the balancing of these rights and interests are contributing to this state of affairs. In recent years, the contentious issues of workers' right to use their economic power to put pressure on employers and employers' recourse to lock-out and replacement labour have come under the spotlight again. Prolonged, violent and unprotected strikes have raised the question whether our industrial relations framework should be revisited, and have complicated matters even further. The question whether employers may use replacement labour and have recourse to lock-outs when an impasse exists during wage negotiations has come to the fore again and is evaluated in the context of the adversarial collective bargaining framework in South Africa.      

scholarly journals SEQUESTRATION OF THE INSOLVENT ESTATE: THE ‘ADVANTAGE TO CREDITORS’ REQUIREMENT

2014 ◽  
Author(s):  
Cherrie Olivier
Keyword(s):  
South Africa ◽  
South African ◽  
Legal Reform ◽  
Case Law ◽  
Legal Institutions ◽  
Insolvency Law ◽  
The Third

This essay deals with the ‘advantage to creditors’ requirement imposed by the Insolvency Act, in South African law. This essay is divided into four parts. Firstly, the requirement will be examined in order to establish the objective it aims to achieve. It will then go on to describe the various ways in which the requirement is implemented during the sequestration process in order to achieve this objective. The second part will discuss how courts interpret the relevant provisions with reference to case law. In the third part, South African insolvency law will briefly be compared to foreign insolvency law in order to raise some potential concerns about the emphasis on the ‘advantage to creditors’ requirement in our law. Finally, with due regard to the current legal institutions and proposals for legal reform in South Africa, conclusions will be drawn as to the necessity of revisiting the scope and implementation of this requirement.

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