scholarly journals A Consideration of Sections 249, 250 and 259 of the Proposed Third Amendment Bill to the Children’s Act in Light of the Best Interests Principle

Obiter ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 934-947
Author(s):  
Glynis van der Walt
Keyword(s):  
South Africa ◽  
Family Care ◽  
Best Interests ◽  
Current Status ◽  
Adoption Process ◽  
Intercountry Adoption ◽  
Alternative Care ◽  
Constitutional Right ◽  
The Republic ◽  
The Right

With the promulgation of the Constitution in 1996, national legislative recognition was given to the principle that a child’s best interests are of paramount importance in every matter concerning the child (s 28(2) of the Constitution of the Republic of South Africa, 1996). Section 28(1)(b) expressly provides for the right of a child to family care, parental care or appropriate alternative care. Based on economic and other factors, developing countries like South Africa experience difficulties in meeting the constitutional right of a child to have his or her best interests met and the placement of an orphaned or abandoned child (OAC) in appropriate alternative care is no exception. In light hereof, the current note considers whether the proposed amendments to the Children’s Act (CA, Act 38 of 2005 as amended) introduced by the Third Amendment Bill (GG 42005 of 2019-02-25), with particular reference to sections 249, 250 and 259 comply with this constitutional right. These three sections are of particular relevance to placing a child in permanent care in the form of both national and intercountry adoption. In particular, section 249 makes provision that no consideration may be given in respect to adoption, section 250 limits the persons who are allowed to provide adoption services and section 259 makes provision for the accreditation for the provision of intercountry adoption services. All three sections are relevant to the adoption process of an OAC. Alternative care options available and the basis for determining which placement decided upon is deemed to be the most appropriate for the child concerned, are considered in light of the proposed amendments. A consideration of the current status of the child welfare system in South Africa as well as the statistics of the many children in need of alternative care, serves to provide a background in determining whether the proposed amendments meet and further the vulnerable OAC’s best interests.

scholarly journals Rhodes University v Student Representative Council of Rhodes University: The constitutionality of interdicting non-violent disruptive protest

2017 ◽  
pp. 93-102
Author(s):  
Safura Abdool Karim ◽  
Catherine Kruyer
Keyword(s):  
South Africa ◽  
Eastern Cape ◽  
Student Protests ◽  
High Court ◽  
Chilling Effect ◽  
Constitutional Right ◽  
The Republic ◽  
The Right

Section 17 of the Constitution of the Republic of South Africa, 1996 enshrines the right to assemble, peacefully and unarmed, and the Regulation of Gatherings Act 205 of 1993 enables the exercise of this right peacefully and with due regard to the rights of others. The recent student protests across South Africa have occasioned litigation seeking to interdict protest action, which the universities claim is unlawful. Overly broad interdicts, which interdict lawful protest action, violate the constitutional right to assembly and have a chilling effect on protests. In a decision of the High Court of South Africa, Eastern Cape Division, Grahamstown, a final interdict was granted interdicting two individuals from, among other things, disrupting lectures and tutorials at Rhodes University and from inciting such disruption. In this note, the constitutionality of interdicting non-violent disruptive protest is discussed and analysed, using Rhodes University v Student Representative Council of Rhodes University and Others (1937/2016) [2016] ZAECGHC 141.

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.

scholarly journals After Mazibuko: Exploring the responses of communities excluded from South Africa's water experiment

2017 ◽  
Vol 61 (1) ◽  
pp. 57-81 ◽  
Author(s):  
Nathan John Cooper
Keyword(s):  
South Africa ◽  
Resource Allocation ◽  
Social Engagement ◽  
Water Allocation ◽  
Constitutional Court ◽  
Water Access ◽  
Cultural Phenomenon ◽  
Legal Provisions ◽  
Constitutional Right ◽  
The Right

AbstractDespite a constitutional right to water, challenges remain for access to sufficient water in South Africa. This article considers the degree to which current legal provisions perpetuate approaches that are antithetical to genuinely eco-socio-sustainable water access. Water in South Africa has largely been re-cast as a commodity, exposed to market rules, proving problematic for many and giving rise to various responses, including litigation. In the seminal case of Mazibuko, the Constitutional Court failed to provide robust protection to the right to water, providing impetus for the formation of “commons” strategies for water allocation. Indeed, “commoning” is beginning to represent not only an emerging conceptual strand in urban resource allocation, but also a dynamic, contemporary, eco-sensitive, socio-cultural phenomenon, driving innovative, interactive and inclusive forms of planning and social engagement. Against the backdrop of unequal water access, commoning offers glimpses of an empowering and enfranchising subaltern paradigm.

scholarly journals Dignity, religion and freedom of expression in South Africa

2011 ◽  
Vol 67 (1) ◽  
Author(s):  
Jacobus C.W. Van Rooyen
Keyword(s):  
South Africa ◽  
South African ◽  
Freedom Of Expression ◽  
Sense Of Self ◽  
Point Of View ◽  
National Pride ◽  
Form Part ◽  
Self Worth ◽  
Constitutional Right ◽  
The Republic

The issue that this article dealt with is whether, in South African law, speech that infringes upon the religious feelings of an individual is protected by the dignity clause in the Constitution of the Republic of South Africa. The Constitution, as well as the Broadcasting Code, prohibits language that advocates hatred, inter alia, based on religion and that constitutes incitement to cause harm. Dignity, which is a central Constitutional right, relates to the sense of self worth which a person has. A Court has held that religious feelings, national pride and language do not form part of dignity, for purposes of protection in law. The Broadcasting Complaints Commission has, similarly, decided that a point of view seriously derogatory of ‘Calvinistic people’ blaming (some of) them as being hypocritical and even acting criminally is not protected by dignity. It would have to be accompanied by the advocacy of hatred as defined previously. The author, however, pointed out that on occasion different facts might found a finding in law that religion is so closely connected to dignity, that it will indeed be regarded as part thereof.

scholarly journals Access and the non-custodial parent in the Republic of Ireland

2020 ◽  
Vol 62 (2) ◽  
pp. 199-215
Author(s):  
Anne Egan
Keyword(s):  
Best Interests ◽  
Family Court ◽  
Rights Of The Child ◽  
Parents And Children ◽  
Custodial Parent ◽  
Bona Fide ◽  
United Nations Convention ◽  
The Republic ◽  
Custodial Parents ◽  
The Right

Maintaining a relationship between parents and children following the breakdown of a marriage or relationship can be fraught with difficulties, particularly where acrimony exists between parents. This article explores the right of a non-custodial parent to have access to their child under Irish law and discusses the results of an interview-based study undertaken by the author using qualitative research methods. The interviewees in the study included practitioners as well as separated, divorced and unmarried fathers and mothers who outlined their views on access and the study found that the majority of non-custodial parents had some level of access to their child. The article further outlines the author’s experience of successfully applying to attend family court as a bona fide researcher and discusses some of the results of observations in those courts which reinforced the results of the interview-based study. Article 9(3) of the United Nations Convention on the Rights of the Child (CRC) states that in the event of separation of parents, it is the right of the child to maintain personal relations and contact with both parents. Article 7(1) of the Convention further supports the right of a child to be cared for by his or her parents. These articles have proved useful for fathers’ rights campaigners who advocate that they should have more contact with their children post-separation. The Convention, however, while ratified by Ireland, has not yet been incorporated into Irish law. The article concludes by examining whether the incorporation of the Convention would advance the rights of Irish children to maintain a relationship with their parents, unless such a relationship would be contrary to the children’s best interests. In light of this, this article examines the proposed wording of the Constitutional Referendum on Children which was published in early 2010 and assesses what impact the passing of such a referendum would have on children’s rights in Ireland.

scholarly journals THE REGULATION OF INTERCOUNTRY ADOPTION IN SOUTH AFRICA

Obiter ◽  
2016 ◽  
Vol 37 (3) ◽  
Author(s):  
Glynis van der Walt
Keyword(s):  
South Africa ◽  
Adoptive Parents ◽  
The State ◽  
Best Interests ◽  
Director General ◽  
Central Authority ◽  
Intercountry Adoption

In South Africa, the Director General of the DSD appoints the Central Authority. Applications for intercountry adoption are made to the Central Authority. The aim is to protect the best interests of children involved in the process of intercountry adoption. This task is of paramount importance. The Central Authority is also tasked with maintaining relationships and promoting cooperation among the competent authorities within the State to protect children and to achieve the objectives of the Convention. In addition, where an adoption takes place after the child has been transferred to the receiving State and the Central Authority of the receiving State is of the view that the continued placement of the child with the prospective adoptive parents is not in the best interests of the child, the Central Authority is required to take the necessary measures to protect such child. These measures include withdrawing the child from the prospective adoptive parents and arranging temporary care and a new placement for the child in consultation with the Central Authority of the State of origin. The Central Authority therefore acts as a “gatekeeper”, with all adoptions in-and-out of the country channelled through its checks. It fulfils an important function to eliminate practices which may violate the best interests of the child.

scholarly journals Exercising the right to a trial in a reasonable time in the Republic of Serbia

2007 ◽  
Vol 79 (9) ◽  
pp. 311-333
Author(s):  
Maja Omeragić-Pantić ◽  
Biljana Vujičić ◽  
Bojan Tubić ◽  
Rodoljub Etinski
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Current Status ◽  
National Strategy ◽  
Reasonable Time ◽  
Legal Remedies ◽  
European Court ◽  
The Republic ◽  
Judicial Procedure ◽  
The Right

Constitution and procedural laws explicitly guarantee right to a trial in a reasonable time. The procedural laws have been changed and some new solutions, which have to enable a trial in a reasonable time, were adopted. The Decision on establishing of national strategy of judicature reform was adopted, in order to make the judicature more efficient. However, the inquiries show that there are still some significant disadvantages which affect the right to a trial in a reasonable time. Despite the new legislative solutions, adopted in order to accelerate the trials, some of these solutions are not completely sufficient or their implementation in practice is not entirely adequate. The Decision on establishing of national strategy of judicature reform sets up the right analysis of the current status, as well as "therapy for the healing" of judicature. However, it seems that current measures are not in accordance with this therapy. Technical modernization of the courts is very slow and personal capacities, on the level of the associates, is declining instead of getting stronger. The biggest disadvantage of the present legal system, regarding the right to a trial in a reasonable time is the absence of the efficient legal remedies with which the party could accelerate the judicial procedure, respectively with which it could give damages caused by the breach of this right. This paper shows how strict are the criteria of the European court of human rights in Strasbourg related to it and that the existing legal remedies in our legal system are not sufficient to meet these demands. The confirmation of this conclusion came from Strasbourg, when this paper was already written, in the judgment V.A.M. v. Serbia of March 13, 2007.

scholarly journals THE HISTORY OF THE LAW OF ADOPTION IN SOUTH AFRICA

Obiter ◽  
2014 ◽  
Author(s):  
Glynis van der Walt
Keyword(s):  
South Africa ◽  
Political Ideology ◽  
Family Care ◽  
Major Influence ◽  
Legal Concept ◽  
Welfare Of The Child ◽  
History Of ◽  
Private Context ◽  
The Right ◽  
International Instruments

The article traces the historical development of the legal concept of adoption from early civilization to present day South African law. The requirements and consequences of the practice of adoption changed with time, and with the waning of the popularity thereof, adoption as a legal concept was unknown in Roman-Dutch law – the common law of South Africa .During the early 1900‟s increasing numbers of informal “adoptions” taking place in South Africa led to the promulgation of the Adoption of Children Act 25 of 1923. Where conducive to the welfare of the child, adoption was permitted. However, the political ideology of the time in South Africa had a major influence on adoption as a legal institution, with the consequence that the considerations of the welfare of the child were superseded by the ideology of racial segregation. Post constitutional democracy led to the securing and protecting of basic human rights, not least of all within the private context of ”family”. Ratification of international instruments which made provision for adoption, together with the dawning of the constitutional era in South Africa saw the child as the bearer of his or her own rights. In terms of our Constitution, every child was guaranteed the right to family care or parental care or appropriate alternative care. The article focuses on the development and evolution of adoption to its present-day status.

scholarly journals Mothers and others: Transgender birth, birth registration and the rights of the child, with a focus on the United Kingdom and South Africa

2020 ◽  
Vol 20 (4) ◽  
pp. 203-223
Author(s):  
Julia SlothNielsen ◽  
Rachel SlothNielsen
Keyword(s):  
South Africa ◽  
United Kingdom ◽  
Gender Identity ◽  
Birth Certificate ◽  
Best Interests ◽  
Birth Registration ◽  
The United Kingdom ◽  
Rights Of The Child ◽  
Legal Situation ◽  
The Right

The review concerns the position of the identification as ‘mother’ or ‘father’ of trans persons who give birth. This matter has occupied courts in the United Kingdom, Germany, Brazil and Sweden recently, and could well arise in South Africa, our country of origin. The first part of the discussion relates to a claim of a trans man who gave birth to be registered as the father of the child. The legal situation in South Africa and the United Kingdom is compared, and particular focus is placed on the meaning of ‘mother’. A second issue for discussion relates to the right of the child born to a trans person to birth registration, notably, what the child’s interests are in relation to his or her parent’s identification details on his or her birth certificate. We conclude that the gender identity of the trans parent must be the primary factor determining his or her registration as a parent on the birth certificate, and that this solution also better serves the child’s best interests.

scholarly journals KONSTRUKSI REALITAS PEMBUBARAN FRONT PEMBELA ISLAM DAN DEMOKRASI

2021 ◽  
Vol 20 (1) ◽  
Author(s):  
Rina Sovianti
Keyword(s):  
Social Life ◽  
Community Organization ◽  
Treatment Recommendation ◽  
Development Communication ◽  
News Stories ◽  
News Source ◽  
The Difference ◽  
Constitutional Right ◽  
The Republic ◽  
The Right

This study aims to know the direction of democracy and know the framing of news in Republika.com and Kompas.com, as well as the implications of the dissolution of FPI to development communication. The uniqueness of this research, FPI is a mass organization with a large number of masses but does not have an organizational license. This study uses the paradigm of constructionism, which considers the reality of social life is not a natural reality. Using the Robert N. Entman method to frame news stories coming from Republika.com and Kompas.com. The difference in framing in Kompas.com media and Republika.com is the news source. Republika.com choose a news source from an Islamic background, while Kompas.com choose a news source who is competent in his field is not based on his religion. In the first framing analysis, the level of problem identification and causal interpretation, the two online media have similarities. However, in terms of moral evaluation and treatment recommendation both media have differences. In Republika.com researchers analyzed treatment recommendations is the rejection of FPI activities. FPI has no legal standing. Kompas.com, his treatment recommendation consideration of the dissolution of FPI is to maintain the existence of ideology and basic consensus of the state of Pancasila, the 1945 Constitution, the integrity of the Republic of Indonesia, and Bhinneka Tunggal Ika. Basically, the right to organize is a constitutional right. If there is no fundamental reason, the dissolution of a community organization should not exist. However, FPI is an organization that offers intolerance in the religious field. 

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