scholarly journals TOWARDS A SEXUALLY FREE SOUTH AFRICA: A FEMINIST AND CONSTITUTIONAL DEFENCE IN FAVOUR OF LEGALISING PROSTITUTION THROUGH THE RIGHT TO BODILY INTEGRITY

2018 ◽  
Author(s):  
Thabang Manamela
Keyword(s):  
South Africa ◽  
South African ◽  
Political Representation ◽  
Social Stigma ◽  
Bodily Integrity ◽  
Legal Remedies ◽  
The Status ◽  
Primary Means ◽  
Sexual Conduct ◽  
The Right

The aim of this article is to argue that when recognised as persons, women can be independent enough to have the freedom to determine their sexual lives, including what meaning and benefit to derive from their sexual relations.18 Granted that Section 9 of the Constitution enshrines all of our rights to be treated equally as persons, women must be given rights and resources in line with them being equal persons.19 I will further argue that Section 12(2)(b) of the Constitution, to the extent that I relate it to prostitution, imposes a negative obligation on the state to refrain from refereeing sexual conduct.20 This negative obligation applies only to the extent that the sexual conduct in question involves adults who freely consent thereto. Throughout this article, I will argue that women’s vulnerability in prostitution is perpetuated by a continued criminalisation, and the Commission’s recommendation to maintain the status quo does not help to improve the plight of women involved in prostitution. On the contrary, criminalisation victimises prostitutes, and endorses a social stigma associated with prostitution.21 The Commission should have rather devoted its attention to finding solutions on how South Africa can undertake a process of legalising prostitution, and simultaneously address the exploitative nature of prostitution. I will also argue that by virtue of being a politically free society, women involved in prostitution should organise themselves politically, and not rely solely on legal remedies to advance their problems, but rather use political representation as their primary means by which to represent themselves. Have the remedies offered by the South African legal order been exhausted to provide utmost security for sexual freedom?

scholarly journals A LEGAL ANALYSIS OF “SAVIOUR SIBLINGS” AND “BENEFACTOR CHILDREN” IN SOUTH AFRICA

Obiter ◽  
2014 ◽  
Vol 35 (2) ◽  
Author(s):  
Emma du Plessis ◽  
Avinash Govindjee ◽  
Glynis van der Walt
Keyword(s):  
South Africa ◽  
South African ◽  
Surgical Procedures ◽  
Ethical Issues ◽  
Constitutional Rights ◽  
Legal Analysis ◽  
Bodily Integrity ◽  
Legal Position ◽  
The Right ◽  
Legal And Ethical Issues

This contribution aims to explain how the constitutional rights to bodily integrity and autonomy affect, firstly, the legal position of “saviour siblings” and, secondly, “benefactor children”. The article also considers whether parents, in terms of South African law, have the right to make decisions concerning medical treatment and surgical procedures of this nature, on behalf of their children. A number of legal and ethical issues are considered, with the focus being on the legal implicationsassociated with these categories of children being used to save the life of an ill sibling through the donation of tissue or organs. A set of recommendations are advanced so that the legal position may be better regulated.

Victim Participation in Parole Proceedings in South Africa

2019 ◽  
Vol 34 (1) ◽  
Author(s):  
Jamil Mujuzi
Keyword(s):  
South Africa ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
South African ◽  
Justice System ◽  
Criminal Procedure ◽  
Prison Inmate ◽  
Parole Board ◽  
Victims Of Crime ◽  
The Right

South African law provides for circumstances in which victims of crime may participate in the criminal justice system at the investigation, prosecution (trial), sentencing and parole stages. In South Africa, a prison inmate has no right to parole although the courts have held that they have a right to be considered for parole. In some cases, the victims of crime have a right to make submissions to the Parole Board about whether the offender should be released on parole. Section 299A of the Criminal Procedure Act 51 of 1977 provides for the right of victims of crime to participate in parole proceedings. The purpose of this article is to discuss section 299A and illustrate ways in which victims of crime participate in the parole process. The author also recommends ways in which victims’ rights in section 299A of the Criminal Procedure Act could be strengthened.

VIRGINITY TESTING PRACTICES: THE BEST OF BOTH WORLDS

2016 ◽  
Vol 26 (1) ◽  
Author(s):  
Sheila Mokoboto-Zwane
Keyword(s):  
South Africa ◽  
Cultural Beliefs ◽  
Cultural Practice ◽  
Bodily Integrity ◽  
Sexually Transmitted ◽  
Young Females ◽  
Unwanted Pregnancies ◽  
The Right ◽  
Democratic Elections ◽  
Virginity Testing

Controversy continues to surround the age-old practice of virginity testing, which in South Africa made a visible comeback around the time of the country’s first democratic elections when most South Africans began to feel free to practise their cultural beliefs without fear. It coincided with the period when the HIV pandemic began to take hold. It is practised mainly in some countries of Asia and Africa, and in South Africa it is practised mainly amongst amaZulu. It is believed that this practice prevents unwanted pregnancies and sexually transmitted diseases (STDs), especially HIV/AIDS, as well as engendering a sense of pride in teenage and young females, in particular. However, some individuals, organisations and sectors of the community frown upon the practice because it violates constitutional laws that protect the right to equality, privacy, bodily integrity and sexual autonomy. The purpose of this article is to present current discourse on the cultural practice of virginity testing and the controversies surrounding this discourse. This article draws its arguments from the existing literature on virginity testing.

scholarly journals The transition to general management in South Africa

2017 ◽  
Vol 15 (0) ◽  
Author(s):  
Stephen J. Mallaby ◽  
Gavin Price ◽  
Karl Hofmeyr
Keyword(s):  
South Africa ◽  
South African ◽  
Personal Characteristics ◽  
Structured Interviews ◽  
General Manager ◽  
General Management ◽  
General Managers ◽  
Managerial Implications ◽  
Effective Development ◽  
The Right

Orientation: Understanding the nature and challenges of making the transition from a functional role to a general management role in South African organisations.Research purpose: The objective of this study was to gain insight into the obstacles that affect the transition from functional to general management and identify steps that may be taken to overcome these challenges.Motivation for the study: One of the most difficult crossroads for a manager is making the shift from being a functional specialist to becoming a general manager. New competencies and behaviours are required, as well as a more strategic mind set. If the transition is not made successfully, the manager and the organisation suffer.Research design, approach and method: A qualitative design was used consisting of in-depth, semi-structured interviews, with 19 senior business leaders who had successfully made the transition. The interviews were used to gather insights into the challenges they faced during their transitions, and how these were overcome.Main findings: To make the transition successfully, functional managers need to gain relevant experience to prepare them for the broader scope of a general management role. They need to develop appropriate skills, attitudes and personal characteristics. Mentoring is an effective development process. Newly appointed general managers need to learn to let go of control while maintaining ownership, build relationships and strike the right balance between strategic thinking and execution. There are unique aspects of being a general manager in South Africa, such as dealing with Black Economic Empowerment and challenges of race and identity, given the country’s history.Practical and managerial implications: Specific interventions are suggested which are directed at both aspiring general managers and organisations seeking to assist middle managers to make the transition to general managers.Contribution: This study contributes to knowledge concerning the skills and attributes required by potential general managers, and the practical steps to be taken by South African organisations to facilitate the development of general managers. 

Integrative taxonomic methods reveal an incorrect synonymisation of the South African Pseudonereis podocirra (Schmarda) as the widespread Pseudonereis variegata (Grube) from Chile

2018 ◽  
Vol 32 (6) ◽  
pp. 1282 ◽  
Author(s):  
Jyothi Kara ◽  
Angus H. H. Macdonald ◽  
Carol A. Simon
Keyword(s):  
South Africa ◽  
South African ◽  
Species Delimitation ◽  
Haplotype Network ◽  
The Body ◽  
General Description ◽  
The South ◽  
Morphological Examination ◽  
Genetic Structuring ◽  
The Status

The nereidid Pseudonereis variegata (Grube, 1866) described from Chile includes 14 synonymised species from 10 type localities with a discontinuous distribution, but no taxonomic or molecular studies have investigated the status of this species outside Chile. Two synonymised species, Mastigonereis podocirra Schmarda, 1861 and Nereis (Nereilepas) stimpsonis Grube, 1866, were described from South Africa and investigated here using morphological examination. MtCOI species delimitation analyses and morphology were used to determine the status of P. variegata in South Africa. Morphological examination revealed that museum and freshly collected specimens from South Africa that conform to the general description of P. variegata are similar to M. podocirra and N. stimpsonis with respect to the consistent absence of homogomph spinigers in the inferior neuropodial fascicle, expanded notopodial ligules and the subterminal attachment of dorsal cirri in posterior parapodia. The synonymy of M. podocirra and N. stimpsonis as P. variegata are rejected and P. podocirra, comb. nov. is reinstated. Morphologically, Pseudonereis podocirra differed from specimens from Chile with regard to the numbers of paragnaths, the absence of homogomph spinigers and changes in parapodial morphology along the body. Independence of these species was further supported by genetic distances, automatic barcode gap discovery and multi-rate Poisson tree process species delimitation analyses of 77 mtCOI sequences. Haplotype network revealed no genetic structuring within the South African populations. http://zoobank.org/urn:lsid:zoobank.org:pub:F0B1A5AF-9CE9-4A43-ACCF-17117E1C2F21

scholarly journals SOME COMMENTS ON WATER RIGHTS IN SOUTH AFRICA

2017 ◽  
Vol 8 (1) ◽  
pp. 1
Author(s):  
N Gabru
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Fresh Water ◽  
Human Life ◽  
Bill Of Rights ◽  
The South ◽  
Economic Rights ◽  
Basic Part ◽  
The Right

Human life, as with all animal and plant life on the planet, is dependant upon fresh water. Water is not only needed to grow food, generate power and run industries, but it is also needed as a basic part of human life. Human dependency upon water is evident through history, which illustrates that human settlements have been closely linked to the availability and supply of fresh water. Access to the limited water resources in South Africa has been historically dominated by those with access to land and economic power, as a result of which the majority of South Africans have struggled to secure the right to water. Apartheid era legislation governing water did not discriminate directly on the grounds of race, but the racial imbalance in ownership of land resulted in the disproportionate denial to black people of the right to water. Beyond racial categorisations, the rural and poor urban populations were traditionally especially vulnerable in terms of the access to the right.  The enactment of the Constitution of the Republic of South Africa 1996, brought the South African legal system into a new era, by including a bill of fundamental human rights (Bill of Rights). The Bill of Rights makes provision for limited socio-economic rights. Besides making provision for these human rights, the Constitution also makes provision for the establishment of state institutions supporting constitutional democracy.  The Constitution has been in operation since May 1996. At this stage, it is important to take stock and measure the success of the implementation of these socio-economic rights. This assessment is important in more ways than one, especially in the light of the fact that many lawyers argued strongly against 1/2the inclusion of the second and third generation of human rights in a Bill of Rights. The argument was that these rights are not enforceable in a court of law and that they would create unnecessary expectations of food, shelter, health, water and the like; and that a clear distinction should be made between first generation and other rights, as well as the relationship of these rights to one another. It should be noted that there are many lawyers and non-lawyers who maintained that in order to confront poverty, brought about by the legacy of apartheid, the socio-economic rights should be included in a Bill of Rights. The inclusion of section 27 of the 1996 Constitution has granted each South African the right to have access to sufficient food and water and has resulted in the rare opportunity for South Africa to reform its water laws completely. It has resulted in the enactment of the Water Services Act 108 of 1997 and the National Water Act 36 of 1998.In this paper the difference between first and second generation rights will be discussed. The justiciability of socio-economic rights also warrants an explanation before the constitutional implications related to water are briefly examined. Then the right to water in international and comparative law will be discussed, followed by a consideration of the South African approach to water and finally, a few concluding remarks will be made.

scholarly journals Analysing the Onus Issue in Dismissals Emanating from the Enforcement of Unilateral Changes to Conditions of Employment

2017 ◽  
Vol 14 (7) ◽  
pp. 146
Author(s):  
Riaz Ismail ◽  
Clarence Itumeleng Tshoose
Keyword(s):  
South Africa ◽  
South African ◽  
Labour Relations ◽  
Appeal Court ◽  
The Core ◽  
The United Kingdom ◽  
Mutual Interest ◽  
Core Section ◽  
The Right ◽  
Conditions Of Employment

The main objective of this article is to analyse the issue of onus emanating from the enforcement of unilateral changes to conditions of employment. At the heart of the controversy that has faced the Labour Appeal Court was how to interpret dismissals that appear to be based on operational requirements, and yet at the same time, such dismissals also appear to have the effect of compelling an employee to accept a demand in respect of a matter of mutual interest between the employer and the employee. The core section in the Labour Relations Act 66 of 1995 relating to disputes of this nature is section 187(1)(c) of the Act, and the central enquiry to such disputes is whether they are automatically unfair or operationally justifiable. The fine line that determines whether a dismissal is acceptable or not merits an analysis of the overall onus that faces an employer and employee. This analysis is the focus of the article, which deals predominantly with procedural issues. The issue relating to the promotion of collective bargaining will be assessed against the right to dismiss, based on an analysis of the situation in South Africa, and a brief comparison with the situations in the United Kingdom and Canada. Thereafter, recommendations are made to the South African legislature.

scholarly journals An analysis of spousal competence and non-compellability in terms of section 198 of the Criminal Procedure Act

De Jure ◽  
2021 ◽  
Vol 54 (1) ◽  
pp. 1-15
Author(s):  
Melissa Lazarus ◽  
Dr Franaaz Khan
Keyword(s):  
South Africa ◽  
South African ◽  
Media Coverage ◽  
Common Law ◽  
Criminal Procedure ◽  
Biblical Principles ◽  
The Right

Marital privilege is founded on the biblical principles of the union between man and wife. Thus wives were not competent or compellable witnesses against their husbands. Over the years the privilege developed in English common law. South Africa codified the privilege through Section 198 of the Criminal Procedure Act 51 of 1977 which states that spouses cannot be compelled to testify against each other unless the crime for which the accused spouse is charged appears in the categories listed in Section 195 of the Act. There are many criticisms against affording a privilege to a particular class of persons - notably that the non-compellability exception given to spouses is unconstitutional as it violates the right to equality in terms of section 9 of the Constitution. Recent media coverage at the Zondo Commission highlighted this conundrum when the ex-minister's spouse was asked to testify. This article examines the merits of the unconstitutionality argument and concludes that spousal non-compellability fails to withstand the test against unfair discrimination on the basis of marital privilege. Finally, recommendations are proposed in this regard which examine the nature and evolution of spousal competence and non-compellability in South African law.

scholarly journals What has the Constitutional Court Given Us? Afriforum v University of the Free State 2018 (4) BCLR 387 (CC)

Obiter ◽  
2019 ◽  
Vol 40 (3) ◽  
Author(s):  
Mokgadi Margaret Mokgokong ◽  
Moses Retselisitsoe Phooko
Keyword(s):  
Higher Education ◽  
South Africa ◽  
South African ◽  
Further Education ◽  
The State ◽  
Constitutional Court ◽  
Official Language ◽  
National Party ◽  
The Right ◽  
To Receive

The history of South Africa is an unpleasant one. It was a society based on racial segregation with the promotion of Afrikaner culture and the Afrikaans language above all other languages. This can be traced to the architect of apartheid, the Afrikaner National Party, which introduced apartheid. Afrikaans-speaking people, through the Afrikaner National Party, dominated South Africa politically. Their language too, was promoted above all other languages. For example, Afrikaans enjoyed more privileges than other languages in that it was used for drafting laws, as the language of record in the courts and was also the only compulsory subject for learning. The apartheid government, through its racial policies, used the Afrikaans language as a tool to control Black South Africans in almost all spheres of life, including education, which had to be undertaken in Afrikaans. It is therefore no surprise that there were five universities that offered education mainly in Afrikaans. These are Stellenbosch University, University of the Free State, University of Pretoria, Potchefstroom University for Christian Higher Education (now North-West University) and Randse Afrikaanse Universiteit (now University of Johannesburg). The use of the Afrikaans language as an instrument for social control was not sustainable. The new constitutional dispensation ushered in an era wherein respect for fundamental human rights and freedoms is at the top of the South African agenda. The right to further education is constitutionally recognised in section 29(1)(b) of the Constitution of the Republic of South Africa, 1996. Section 29(2) of the Constitution further recognises and embraces the diversity of South African society and provides that “everyone has the right to receive education in the official language or languages of their choice in public education institutions where that education is reasonably practicable” (s 29(b) of the Constitution). The State has an obligation to take reasonable measures on a progressive basis to ensure that further education is available and accessible (s 29(1)(b) of the Constitution). In ensuring “effective access to and implementation” of the right to further education, It is notable that, in its endeavour to make further education available and accessible, the State is required to consider several factors such as language policies. In an effort to facilitate the realisation of the right to further education, the Higher Education Act (101 of 1997) was enacted in order inter alia to “redress past discrimination and ensure representivity and equal access to higher education institutions” (preamble to the Act).In the UFS case (CC), the Constitutional Court applied section 29(1)(b) of the Constitution, which provides for the right to further education and the “right to receive education in the official language or languages of [one’s] choice”. This note centres on this decision and seeks to critically discuss and analyse both the majority and minority decisions of the Constitutional Court. The question presented is whether the Constitutional Court has given the public a solution to the issue surrounding the use of either Afrikaans or English as a language medium of instruction in the higher education sector and what the effect of this has been on the development of other languages. The case note is divided into five sections. The facts of the case, the issues put before the court for consideration and the finding of the court are discussed in part 2. Part 3 contains an analysis of the minority and majority judgments. Part 4 considers whether the court has given us any solutions. Part 5 sets out the authors’ recommendations and their conclusions.

An analysis of the right of Muslim adopted children to inherit from their deceased parents in terms of the law of succession: A South African case study

2021 ◽  
Vol 8 (2) ◽  
pp. 63-73
Author(s):  
Muneer Abduroaf
Keyword(s):  
South African ◽  
Islamic Law ◽  
Legal Framework ◽  
Adopted Children ◽  
The South ◽  
Legal Context ◽  
Muslim Children ◽  
The Status ◽  
The Right ◽  
Law Of Succession

This paper analyses the right of Muslim adopted children to inherit from their deceased parents in terms of the laws of succession within the South African legal context. The status of adoption in South African and Islamic law is looked at first by way of an introduction. This is followed by looking at the rights of adopted Muslim children to inherit from their deceased parents (biological and adoptive) in terms of the South African and Islamic laws of intestate (compulsory) and then testate (optional) succession.1 The paper further looks at the possibility of applying relevant Islamic law of succession provisions applicable to enable adopted Muslim children to inherit from the estate of their deceased biological parents within the South African legal framework. The paper concludes with an analysis of the findings and makes a recommendation.

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