The Case for a Law against the Online Distribution of Non-Consensual Intimate Images in Uganda

The distribution of sexually graphic or intimate images of individuals on the internet without their consent is on the rise in Uganda. Several female celebrities and lesser-known individuals have fallen victim to this phenomenon in recent years. This article examines the civil and criminal remedies currently available to the victims. The article argues that these remedies are insufficient to deal with the challenge posed by the non-consensual distribution of these intimate images in the online environment and argues for the creation of a new law that specifically addresses this issue.

Does the Aggravated Sentencing Regime under the Prevention of Organised Crime Act 121 of 1998 Violate Freedom of Association? A Constitutional and Comparative Analysis

In terms of section 10(3) of the Prevention of Organised Crime Act 121 of 1998 (“POCA”), a court may impose an aggravated sentence on a criminal offender if the offender was a gang member at the time of the commission of a crime. The court is entitled to apply section 10(3) to the sentencing of any common-law or statutory offence, save for the gang-related offences in Chapter 4 of POCA. As aggravated punishment is attached directly to a person’s status as a gang member, one must question whether such aggravated punishment does not violate the right to freedom of association in section 18 of the Constitution of the Republic of South Africa, 1996. Section 18 is an unqualified right and subject only to the limitations clause under section 36 of the Constitution. The purpose of this contribution is to investigate whether the associational freedom guaranteed by the Constitution may be limited in light of considerations under international law (such as the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights and the European Convention on the Protection of Human Rights and Fundamental Freedoms) as well as foreign law (specifically the United States and Germany). The consensus is, broadly speaking, that persons are nondeserving of associational protection where the conduct connected to such an association is criminal in nature. Increased criminal consequences are justifiable where a person’s unlawful conduct is also connected to their status and activity as a member of a criminal organisation. However, increased criminal consequences based merely on a person’s membership of a criminal organisation, as is the case in terms of section 10(3) of POCA, is considered arbitrary and irrational. The conclusion is that section 10(3) of POCA should be amended so that it applies only to crimes that are related to a convicted person’s gang-related activities.

Transforming the Law on Psychiatric Lesions

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

The Doctrine of Subjective Rights, the Actio Iniuriarum and the Constitution: A Convergent Doctrinal Basis for the Law of Personality

This article revisits the doctrinal basis of the positive law in protecting the human personality as a legal interest given the approach adopted by the judiciary. In terms of this approach, based on common law and constitutional considerations, the human personality is not articulated as a composite interest (ie the human personality is not doctrinally conceptualised as consisting of various discrete personality rights). Arguably, such an approach denigrates the traditional view that the human personality ought to be protected as a composite interest in law. Therefore, this article interrogates more carefully the doctrinal basis of the law of personality from the perspective of the common law and the Constitution in the light of the controversial nature of the judiciary’s recent approach. In this regard, the article finds that there is an overlap, or more specifically a convergence, between common-law personality rights (as premised on the doctrine of subjective rights and the actio iniuriarum) and fundamental constitutional rights regarding the human personality. The article demonstrates that in terms of scope (ie the various personality interests recognised in positive law) and framework (ie the differentiation and adjudication of the different personality interests in positive law), both the common law and the Constitution attest to the composite nature of the human personality as a legal interest. On this basis, I argue that such convergence enables the creation of a single and integrated doctrinal basis for the post-constitutional operation of the human personality as a legal interest. It is further argued that such a single and integrated doctrinal basis provides the foundation for the further constitutionalisation of the law of personality in terms of a transformative constitutionalism paradigm and the horizontal application of the Constitution.

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

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.

Execution against Residential Immovable Property in terms of High Court Rule 46A

This article provides an overview of and commentary on High Court Rule 46A, which deals with the procedural rules for executing a judgment debt against residential immovable property. Rule 46A focusses on two main aspects: determining if it is justified to sell the debtor’s home in execution and, if a sale is ordered, setting a reserve price at which the property is to be auctioned. Therefore, this article analyses the provisions of rule 46A that pertain to these two components, which also serve as two layers of protection for a debtor facing the loss of his or her home.

The Unreported War: Tackling Denialism and Social Stigma towards Victims of Armed Conflict-Related Sexual and Gender-Based Violence

In addressing the United Nations Security Council at its 7938th meeting, the Special Adviser on the Prevention of Genocide, Adama Dieng, said that the social stigma attached to sexual violence is integral to the logic of using sexual violence as a tactic, a method of war or even torture. The perpetrators of sexual crimes understand that sexual violence attacks one’s individual and collective identity and ostracises survivors, thus untying the strings of family and kinship that hold the very fabric of communities together. As a result, survivors of gender-based and sexual violence often find it difficult to cope with its social repercussions. This article will pursue a detailed discussion pertaining to the severe stigma suffered by survivors of conflict-related sexual violence and how this issue is not adequately addressed in international law. The risk faced by survivors is threefold: first by the action of the perpetrator, then by the reaction of society through stereotypical and patriarchal attitudes, and finally by the courts, which often are not only unresponsive but also perpetuate negative social norms and rape myths leading to double persecution. Due to a lack of evidence and other factors, such as patriarchy and social inequalities, the stigma associated with conflict-related sexual violence is manifested in court rooms through various rape myths about its survivors. Sexual violence is a gendered phenomenon, in that it is often linked to, and stems from, harmful social and traditional practices relating to perceptions of gender and power dynamics surrounding them. In times of conflict, prevalent power dynamics, and the practices linked to them, can be further exacerbated leading to a higher prevalence of sexual violence. Therefore, the core argument advanced in this article is the necessity of combatting stigma and rape myths, and to promote the reporting of sexual crimes by and access to justice for survivors.

An Evaluation of the Legal Framework for Redressing Sexual Violence in the Boko Haram Insurgency in Nigeria: Challenges and the Way Forward

Sexual violence is one of the human rights violations characterising the Boko Haram insurgency in Nigeria. These violations include rape, sexual slavery and the abduction of women and girls by members of the insurgent group. Unfortunately, the emphasis has always been on the provision of humanitarian aid rather than redressing these violations. This article argues that although there are laws in place regulating sexual violence in Nigeria, these laws are inadequate in providing redress for the victims. Besides, the laws are rarely implemented to ensure a system of justice for victims, given the patriarchal and cultural antecedents of Nigeria. It is against this background that the article evaluates the legal framework for redressing sexual violence in the Boko Haram insurgency in Nigeria with a view to revealing the gap that exists therein. To achieve this aim, the article defines sexual violence and instances of such in the Boko Haram context. It also examines the legal framework for redressing sexual violence in Nigeria and the limitations of these laws in that regard. The article further considers the concept of redress and what it entails. Although the article adopts a legal approach, it is concluded that this approach is inadequate in addressing the issue at stake and that, in addition, a resort to extra-legal or other radical measures is needed. To address this challenge, the article among other things, recommends the eradication of cultural practices and negative values encouraging sexual violence; stipulation of a timeframe within which cases of sexual violence must be redressed; the appointment of an independent monitoring body to ensure the implementation of constitutional provisions in that regard; judicial independence; and advocacy by both civil society organisations and the media as tools to compel the relevant authorities to fulfil their responsibility to protect victims of sexual violence. This, it is submitted, will go a long way to address the vulnerability of Nigerian women and girls faced with sexual violence by insurgent groups.

Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]

In Eskom Holdings SOC Ltd v Masinda 2019 5 SA 386 (SCA) (“Masinda”), the Supreme Court of Appeal had to decide whether the mandament van spolie is available for restoring quasi-possession of electricity supply. The respondent used the mentioned supply, which was sourced in contract, at her home. The court ruled that the spoliation remedy does not protect the quasi-possession of rights sourced in contract. For its quasi-possession to enjoy possessory protection, the right must be in the nature of a servitude, be registered or flow from legislation. This emphasis on the source of the right is problematic for two reasons. First, it contradicts certain common-law authorities which reveal that the quasi-possession of electricity supply sourced in contract does, in fact, enjoy protection under the spoliation remedy. This applies as long as the supply is a gebruiksreg (use right) and the spoliatus performs physical acts associated with the right on immovable property. Secondly, (over)emphasising the source of the right potentially undermines various fundamental rights. When the common law is open to several possible interpretations, as seems to be the case with quasi-possession, the supremacy of the Constitution and the single-system-of-law principle require that courts choose the interpretation that upholds (rather than impairs) constitutional rights. In the Masinda case, the court unfortunately opted for an understanding of quasi-possession which seems to undermine the Constitution. For these reasons, the decision is an unwelcome development.

Public Policy in Family Contracts, Part II: Antenuptial Contracts

This, the second part of an article on public policy in contracts between family members, focuses on legality in antenuptial contracts, particularly those which exclude all forms of sharing between spouses. The Matrimonial Property Act 88 of 1984 is now 35 years old and, apart from writing, it neither requires formalities to ensure that prospective spouses who enter into antenuptial contracts fully appreciate the consequences of their agreements, nor does it guarantee that the agreed upon property system is fair to both spouses. Instead, the focus is upon protecting the interests of third parties and creditors. The common-law principle of immutability makes it very onerous for parties to change the matrimonial property consequences during their marriage and, because the judicial discretion to order redistribution of benefits at divorce is limited to marriages concluded before the implementation of the Matrimonial Property Act, enforcement of antenuptial contracts at the termination of the marriage can lead to grossly unfair results. This unfairness has implications for gender equality, both because of gendered disparities in bargaining power at the conclusion of antenuptial contracts and legislation which limits the courts’ ability to deviate from contracts which mostly favour men, while retaining a discretion to deviate from contracts which tend to favour women. This article argues that the second leg of the public policy test, as articulated by the Constitutional Court in Barkhuizen v Napier can remedy the inadequacies in the statutory and common law by allowing the courts to consider inequalities in bargaining power and unfairness at the time of the enforcement of antenuptial contracts, in effect overriding the principle of immutability and creating a residual judicial discretion not to enforce an antenuptial contract.