Pub Date : 2023-10-16DOI: 10.17159/1727-3781/2023/v26i0a8325
Aderomola Adeola
Article 43 of the African Charter on the Rights and Welfare of the Child mandates state parties to report on their efforts made towards implementing treaty provisions to the African Committee on the Rights and Welfare of the Child (ACERWC). The aim of this process is to afford states an opportunity to internally assess their progress and to grant the ACERWC an opportunity to guide states in the implementation of the treaty provisions through constructive dialogue during the state reporting process and through concluding observations which states are required to implement. While much has been written about the value of the state reporting process, not much has been said about the measures taken by states to implement the concluding observations from the state reporting process. The concluding observations offer a premise on which to advance a discourse on state implementation of the regional norms, given that they emanate from an incisive reflection of state parties' reports by the ACERWC. This paper finds that while the ratification of the African Children's Charter by the countries under consideration has led to normative and institutional changes in these countries, there are pertinent challenges that need to be addressed in the realisation of children's rights in Africa. Through the concluding observations, this paper examines the domestic implementation of children's rights in four African countries, namely: Kenya, Nigeria, South Africa and Egypt.
{"title":"Moving Beyond Baby Steps? An Examination of the Domestic Implementation of Concluding Observations from State Parties' Reports on the African Children's Charter","authors":"Aderomola Adeola","doi":"10.17159/1727-3781/2023/v26i0a8325","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a8325","url":null,"abstract":"Article 43 of the African Charter on the Rights and Welfare of the Child mandates state parties to report on their efforts made towards implementing treaty provisions to the African Committee on the Rights and Welfare of the Child (ACERWC). The aim of this process is to afford states an opportunity to internally assess their progress and to grant the ACERWC an opportunity to guide states in the implementation of the treaty provisions through constructive dialogue during the state reporting process and through concluding observations which states are required to implement. While much has been written about the value of the state reporting process, not much has been said about the measures taken by states to implement the concluding observations from the state reporting process. The concluding observations offer a premise on which to advance a discourse on state implementation of the regional norms, given that they emanate from an incisive reflection of state parties' reports by the ACERWC. This paper finds that while the ratification of the African Children's Charter by the countries under consideration has led to normative and institutional changes in these countries, there are pertinent challenges that need to be addressed in the realisation of children's rights in Africa. Through the concluding observations, this paper examines the domestic implementation of children's rights in four African countries, namely: Kenya, Nigeria, South Africa and Egypt.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"85 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136113466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-12DOI: 10.17159/1727-3781/2023/v26i0a15768
Nurina Ally
The state of early childhood development (ECD) provisioning in South Africa is dire. An onerous regulatory regime is one factor contributing to this crisis. Instead of a developmental and enabling framework, the regulatory landscape is convoluted and overly burdensome. This in turn frustrates the realisation of the rights of children. The author argues that regulatory reform in this context is not only desirable but constitutionally required. The article begins by providing an overview of the evolution of the ECD regulatory landscape in South Africa with a particular focus on health and safety regulation. A shift from under-regulation in the pre-constitutional era to over-regulation in the constitutional era is identified. The author proceeds to argue that South Africa's current state of affairs is animated in part by a failure to articulate the full set of interests that should inform a balanced ECD regulatory regime. Pathways towards a more coherent and coordinated regulatory framework for ECD health and safety standards are suggested. The proposed reforms, albeit limited, have the potential to offer immediate relief to both under-resourced providers and overburdened administrators
{"title":"Clearing the Red Tape – Towards a Balanced Regulatory Framework for Early Childhood Development","authors":"Nurina Ally","doi":"10.17159/1727-3781/2023/v26i0a15768","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15768","url":null,"abstract":"The state of early childhood development (ECD) provisioning in South Africa is dire. An onerous regulatory regime is one factor contributing to this crisis. Instead of a developmental and enabling framework, the regulatory landscape is convoluted and overly burdensome. This in turn frustrates the realisation of the rights of children. The author argues that regulatory reform in this context is not only desirable but constitutionally required. The article begins by providing an overview of the evolution of the ECD regulatory landscape in South Africa with a particular focus on health and safety regulation. A shift from under-regulation in the pre-constitutional era to over-regulation in the constitutional era is identified. The author proceeds to argue that South Africa's current state of affairs is animated in part by a failure to articulate the full set of interests that should inform a balanced ECD regulatory regime. Pathways towards a more coherent and coordinated regulatory framework for ECD health and safety standards are suggested. The proposed reforms, albeit limited, have the potential to offer immediate relief to both under-resourced providers and overburdened administrators","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136013244","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-12DOI: 10.17159/1727-3781/2023/v26i0a14472
Annemarie Strohwald
Both the African Charter on Human and Peoples' Rights (ACHPR) and the African Charter on the Rights and Welfare of the Child (ACRWC) expressly provide for African values, traditions and morals. This inclusion is a unique characteristic that illustrates the regionality of these two instruments. The question of how "African values" should be understood and interpreted, however, remains somewhat unclear with the possibility of challenges arising in its interpretation and application. The article considers how African values are incorporated into the ACHPR and the ACRWC to provide an understanding of African values. The article subsequently engages in an analysis of the significance of the incorporation of African values for the interpretation of children's rights by considering both criticism and praise which have been levelled against the inclusion of African values in the ACRWC and ACHPR. This analysis will ultimately aid in determining the contribution of African values to the interpretation and possible realisation of children's rights.
{"title":"An Analysis of the Role of African Values, Traditions and Morals in the Interpretation of Children's Rights","authors":"Annemarie Strohwald","doi":"10.17159/1727-3781/2023/v26i0a14472","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14472","url":null,"abstract":"Both the African Charter on Human and Peoples' Rights (ACHPR) and the African Charter on the Rights and Welfare of the Child (ACRWC) expressly provide for African values, traditions and morals. This inclusion is a unique characteristic that illustrates the regionality of these two instruments. The question of how \"African values\" should be understood and interpreted, however, remains somewhat unclear with the possibility of challenges arising in its interpretation and application. The article considers how African values are incorporated into the ACHPR and the ACRWC to provide an understanding of African values. The article subsequently engages in an analysis of the significance of the incorporation of African values for the interpretation of children's rights by considering both criticism and praise which have been levelled against the inclusion of African values in the ACRWC and ACHPR. This analysis will ultimately aid in determining the contribution of African values to the interpretation and possible realisation of children's rights.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136013159","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-03DOI: 10.17159/1727-3781/2023/v26i0a14118
Davin Olën, Henk Kloppers
Inflation is often defined as a continuous and considerable rise in prices in general. Recently it has become a focal point due to globally elevated levels of inflation. Considering its treatment in the South African legal system, this article unpacks the contrary approaches of the Matrimonial Property Act 88 of 1984 (MPA) and the Income Tax Act 58 of 1962 (ITA) regarding inflation. These two Acts are considered as they provide different approaches to inflation, therefore different outcomes. While the MPA makes provision for inflation in determining the growth of each of the estates of spouses married out of community with the accrual system, the ITA does not recognise inflation insofar as it relates to capital gains tax. Comparing the approaches of the MPA and the ITA reveals disparities in the law and justifies the investigation conducted in this article. Accordingly, this article compares the effect of inflation and capital gains tax and why inflation is not considered when determining the base cost of an asset for capital gains tax purposes. To explain the inconsistency between the MPA and the ITA, this article firstly unpacks the characteristics of the South African matrimonial property regime insofar as it relates to inflation. Thereafter, the article characterises the South African application of the capital gains tax and articulates the shortcomings of existing capital gains tax provisions and the resulting challenges in the application of both Acts. In comparing the ways in which the MPA and the ITA deal with inflation, a clear distinction becomes evident. This article finds that, while the initial inclusion rate for capital gains tax inflation is largely accommodated, subsequent increases in the inclusion rate have erased this provision. Given these findings, this article suggests that the current South African capital gains tax regime's inclusion rate be further investigated to determine whether a wider set of exclusions could be developed to better accommodate inflation.
{"title":"A Comparative Analysis of the Treatment of Inflation in South African Capital Gains Tax and the Accrual Systems","authors":"Davin Olën, Henk Kloppers","doi":"10.17159/1727-3781/2023/v26i0a14118","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14118","url":null,"abstract":"Inflation is often defined as a continuous and considerable rise in prices in general. Recently it has become a focal point due to globally elevated levels of inflation. Considering its treatment in the South African legal system, this article unpacks the contrary approaches of the Matrimonial Property Act 88 of 1984 (MPA) and the Income Tax Act 58 of 1962 (ITA) regarding inflation. These two Acts are considered as they provide different approaches to inflation, therefore different outcomes. While the MPA makes provision for inflation in determining the growth of each of the estates of spouses married out of community with the accrual system, the ITA does not recognise inflation insofar as it relates to capital gains tax. Comparing the approaches of the MPA and the ITA reveals disparities in the law and justifies the investigation conducted in this article. Accordingly, this article compares the effect of inflation and capital gains tax and why inflation is not considered when determining the base cost of an asset for capital gains tax purposes. To explain the inconsistency between the MPA and the ITA, this article firstly unpacks the characteristics of the South African matrimonial property regime insofar as it relates to inflation. Thereafter, the article characterises the South African application of the capital gains tax and articulates the shortcomings of existing capital gains tax provisions and the resulting challenges in the application of both Acts. In comparing the ways in which the MPA and the ITA deal with inflation, a clear distinction becomes evident. This article finds that, while the initial inclusion rate for capital gains tax inflation is largely accommodated, subsequent increases in the inclusion rate have erased this provision. Given these findings, this article suggests that the current South African capital gains tax regime's inclusion rate be further investigated to determine whether a wider set of exclusions could be developed to better accommodate inflation.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135738784","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-02DOI: 10.17159/1727-3781/2023/v26i0a13383
Malcolm Wallis
A recent judgment of the SCA in Capitec Bank Holdings v Coral Lagoon Investments suggested that the parol evidence rule is likely to become a residual rule of little practical importance in view of the expansive approach to interpretation flowing from the judgment in Endumeni and applied by the Constitutional Court in University of Johannesburg v Auckland Park Theological Seminary. The article analyses the court's concern in the light of the two judgments and suggests that it is misplaced. The parol evidence rule is still of full force and effect and evidence inadmissible under the rule is not admissible as context in interpreting contracts.
最高法院最近在Capitec Bank Holdings诉Coral Lagoon Investments一案中作出的判决表明，鉴于Endumeni一案的判决以及约翰内斯堡大学诉奥克兰公园神学院一案中宪法法院所采用的广泛解释方法，假释证据规则很可能成为一项没有什么实际重要性的剩余规则。本文从两个判决的角度分析了法院的担忧，并指出这种担忧是错位的。假释证据规则仍然是完全有效的，在该规则下不能被采纳的证据不能作为解释合同的上下文。
{"title":"Endumeni and the Parol Evidence Rule: Do They Coexist?","authors":"Malcolm Wallis","doi":"10.17159/1727-3781/2023/v26i0a13383","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a13383","url":null,"abstract":"A recent judgment of the SCA in Capitec Bank Holdings v Coral Lagoon Investments suggested that the parol evidence rule is likely to become a residual rule of little practical importance in view of the expansive approach to interpretation flowing from the judgment in Endumeni and applied by the Constitutional Court in University of Johannesburg v Auckland Park Theological Seminary. The article analyses the court's concern in the light of the two judgments and suggests that it is misplaced. The parol evidence rule is still of full force and effect and evidence inadmissible under the rule is not admissible as context in interpreting contracts.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135830195","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-29DOI: 10.17159/1727-3781/2023/v26i0a8994
Brighton M Mupangavanhu
South Africa has included in the Companies Act 71 of 2008 (the Act), provisions dealing with directors' delegation and reliance on the performance of others for their (the directors') own performance. In keeping with their role of managing the affairs of the company in terms of section 66(1) of the Act, directors must make decisions in the best interests of the company. Given the company board's strategic role in the company governance, as opposed to the day-to-day management done by the executive management, directors must rely on the performance of others to fulfil their role. These "others" include professional experts and company employees who can either provide guidance/specialist advice or to whom the board may delegate certain powers and authority to perform certain functions geared towards providing the board with a basis for decision-making. This article in the main interrogates the question whether South Africa has now established globally competitive legal standards of directors' delegation and reliance on the performance of others in line with company law reform objectives prior to 2008. One such objective is ensuring compatibility and harmonisation of the new company law with the best practice jurisdictions internationally as a way of promoting the global competitiveness of the South African economy. In this respect this article examines relevant laws in two foreign jurisdictions to provide a comparative aspect to the relevant South African company law aspects. First the article very briefly examines English law, which provides South Africa with its common law heritage of the duty of care, and it is argued that reliance and delegation relate to the irreducible minimum standard of care and the standard to exercise independent judgment. An examination of Australian statutory provisions on reliance and delegation is followed by a critical evaluation of reliance and delegation in section 76(4)(b)-(5) of the Companies Act 2008. It is concluded that South Africa has established globally competitive principles of reliance and delegation. Nonetheless, there are gaps in statutory reliance and delegation provisions under the Act, and lessons can be drawn from the best practices in Australian statutory and case law. Firm suggestions are made on how the gaps can be plugged and how the legal standards can be further tightened to enhance the global competitiveness of South African company law.
{"title":"Delegation and Directors' Reliance on the Performance of Others – A Companies Act 2008 Analysis in the Light of International Best Practices","authors":"Brighton M Mupangavanhu","doi":"10.17159/1727-3781/2023/v26i0a8994","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a8994","url":null,"abstract":"South Africa has included in the Companies Act 71 of 2008 (the Act), provisions dealing with directors' delegation and reliance on the performance of others for their (the directors') own performance. In keeping with their role of managing the affairs of the company in terms of section 66(1) of the Act, directors must make decisions in the best interests of the company. Given the company board's strategic role in the company governance, as opposed to the day-to-day management done by the executive management, directors must rely on the performance of others to fulfil their role. These \"others\" include professional experts and company employees who can either provide guidance/specialist advice or to whom the board may delegate certain powers and authority to perform certain functions geared towards providing the board with a basis for decision-making. This article in the main interrogates the question whether South Africa has now established globally competitive legal standards of directors' delegation and reliance on the performance of others in line with company law reform objectives prior to 2008. One such objective is ensuring compatibility and harmonisation of the new company law with the best practice jurisdictions internationally as a way of promoting the global competitiveness of the South African economy. In this respect this article examines relevant laws in two foreign jurisdictions to provide a comparative aspect to the relevant South African company law aspects. First the article very briefly examines English law, which provides South Africa with its common law heritage of the duty of care, and it is argued that reliance and delegation relate to the irreducible minimum standard of care and the standard to exercise independent judgment. An examination of Australian statutory provisions on reliance and delegation is followed by a critical evaluation of reliance and delegation in section 76(4)(b)-(5) of the Companies Act 2008. It is concluded that South Africa has established globally competitive principles of reliance and delegation. Nonetheless, there are gaps in statutory reliance and delegation provisions under the Act, and lessons can be drawn from the best practices in Australian statutory and case law. Firm suggestions are made on how the gaps can be plugged and how the legal standards can be further tightened to enhance the global competitiveness of South African company law.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135199268","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-27DOI: 10.17159/1727-3781/2023/v26i0a14960
Anel Ferreira-Snyman
In contrast with the early years of space flight that were dominated by the political priorities and military concerns of the two superpowers, the USA and the then Soviet Union, a new space era has dawned where not only states are involved as serious actors in the space arena, but also private companies. Because of the significant increase in the number of space actors, outer space is becoming a congested and competitive environment. It is self-evident that the significant increase in private and state-sponsored space ventures has serious implications for the protection and sustainability of the outer space environment. Specifically, the proliferation of space debris and the current lack of protection of vulnerable scientific, historical, and cultural sites on celestial bodies are issues of concern. Several measures to balance the seemingly competing interests of space exploration and the sustainability of the space environment have been suggested. This article aims to discuss these measures and to assess to what extent they are in conformity with the current outer space governance regime. It is concluded that the measures suggested to actively address the space debris problem and to protect the cultural heritage in space may contravene the Outer Space Treaty, especially the rules and prohibitions regarding property rights in space. Moreover, whilst the removal of orbital debris is essential to ensure the sustainable use of the outer space environment, some space junk may have cultural significance and be worthy of protection. A balance should thus be struck between preserving cultural heritage and managing the risks posed by space debris. It is therefore recommended that the development of interim soft-law rules (and an eventual treaty) should be undertaken under the auspices of existing United Nations bodies, namely the UNCOPUOS and UNESCO.
{"title":"Outer Space Exploration and the Sustainability of the Space Environment – An Uneasy Relationship","authors":"Anel Ferreira-Snyman","doi":"10.17159/1727-3781/2023/v26i0a14960","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14960","url":null,"abstract":"In contrast with the early years of space flight that were dominated by the political priorities and military concerns of the two superpowers, the USA and the then Soviet Union, a new space era has dawned where not only states are involved as serious actors in the space arena, but also private companies. Because of the significant increase in the number of space actors, outer space is becoming a congested and competitive environment. It is self-evident that the significant increase in private and state-sponsored space ventures has serious implications for the protection and sustainability of the outer space environment. Specifically, the proliferation of space debris and the current lack of protection of vulnerable scientific, historical, and cultural sites on celestial bodies are issues of concern. Several measures to balance the seemingly competing interests of space exploration and the sustainability of the space environment have been suggested. This article aims to discuss these measures and to assess to what extent they are in conformity with the current outer space governance regime. It is concluded that the measures suggested to actively address the space debris problem and to protect the cultural heritage in space may contravene the Outer Space Treaty, especially the rules and prohibitions regarding property rights in space. Moreover, whilst the removal of orbital debris is essential to ensure the sustainable use of the outer space environment, some space junk may have cultural significance and be worthy of protection. A balance should thus be struck between preserving cultural heritage and managing the risks posed by space debris. It is therefore recommended that the development of interim soft-law rules (and an eventual treaty) should be undertaken under the auspices of existing United Nations bodies, namely the UNCOPUOS and UNESCO.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135537907","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Ex parte JCR 2022 5 SA 202 (GP) the Pretoria High Court per Neukircher J seeks to introduce new requirements for all surrogacy agreements in South African law. The court considered the psychological impact of surrogacy on the children of both the surrogate parents and the commissioning parents and the need to put in place procedures ‘for preparing them for this process [of not bringing the surrogate baby home]’ or ‘for a new addition to their family’, respectively. The court ordered the mandatory psychological assessment of the existing children of the surrogate parents and commissioning parents. A report emanating from such an assessment would ostensibly assist the court in determining the best interests of the existing children of the parties to the agreement. We argue that the psychological evaluation of the existing children of the parties to a surrogate motherhood agreement fundamentally upsets the balance between the interests of the parties involved in the surrogacy process. In fact, it shifts the balance of power almost entirely into the hands of the existing children, such that they may be said to decide whether their parents allowed to have any more children. We argue that the court’s interpretation that such assessments would be in the best interests of existing children, is based on a fundamental misunderstanding of the court’s duty in this regard. The new assessment requirement is more likely to undermine these children’s interests, to violate the commissioning parents’ constitutional rights to dignity and equality, and their rights to reproductive autonomy, privacy, and access to reproductive healthcare.
在JCR 2022 5 SA 202 (GP)一案中，比勒陀利亚高等法院(Pretoria High Court per Neukircher J)试图在南非法律中引入所有代孕协议的新要求。法院考虑了代孕对代孕父母和委托父母的孩子的心理影响，以及制定程序的必要性，分别是“让他们为(不带代孕婴儿回家的)过程做好准备”或“让他们的家庭有了新成员”。法院下令对代孕父母和委托父母的现有子女进行强制性心理评估。这种评估产生的报告表面上将有助于法院确定协议各方现有子女的最大利益。我们认为，对代孕母亲协议各方现有子女的心理评估从根本上破坏了代孕过程中各方利益之间的平衡。事实上，它将权力的平衡几乎完全转移到了现有子女的手中，以至于他们可以说是决定父母是否允许再生孩子的人。我们认为，法院关于这种评估将符合现有儿童的最大利益的解释是基于对法院在这方面的义务的根本误解。新的评估要求更有可能损害这些儿童的利益，侵犯委托父母享有尊严和平等的宪法权利，以及他们享有生殖自主权、隐私权和获得生殖保健的权利。
{"title":"A \"Parenting Licence\" Granted by One’s Existing Children? Critical Analysis of the Judgment in Ex Parte JCR 2022 5 SA 202 (GP)","authors":"Willene Holness, Brigitte Clark, Aliki Edgcumbe, Freddy Mnyongani, Sheetal Soni, Bonginkosi Shozi, Donrich Thaldar","doi":"10.17159/1727-3781/2023/v26i0a14694","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14694","url":null,"abstract":"In Ex parte JCR 2022 5 SA 202 (GP) the Pretoria High Court per Neukircher J seeks to introduce new requirements for all surrogacy agreements in South African law. The court considered the psychological impact of surrogacy on the children of both the surrogate parents and the commissioning parents and the need to put in place procedures ‘for preparing them for this process [of not bringing the surrogate baby home]’ or ‘for a new addition to their family’, respectively. The court ordered the mandatory psychological assessment of the existing children of the surrogate parents and commissioning parents. A report emanating from such an assessment would ostensibly assist the court in determining the best interests of the existing children of the parties to the agreement. We argue that the psychological evaluation of the existing children of the parties to a surrogate motherhood agreement fundamentally upsets the balance between the interests of the parties involved in the surrogacy process. In fact, it shifts the balance of power almost entirely into the hands of the existing children, such that they may be said to decide whether their parents allowed to have any more children. We argue that the court’s interpretation that such assessments would be in the best interests of existing children, is based on a fundamental misunderstanding of the court’s duty in this regard. The new assessment requirement is more likely to undermine these children’s interests, to violate the commissioning parents’ constitutional rights to dignity and equality, and their rights to reproductive autonomy, privacy, and access to reproductive healthcare.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913260","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-12DOI: 10.17159/1727-3781/2023/v26i0a15438
Marelize Marais
In its judgment in Qwelane v South African Human Rights Commission 2022 2 BCLR 129 (CC), the Constitutional Court declared section 10(1) of the Equality Act unconstitutional and invalid to the narrow extent that section 10(1)(a) refers to the intention to be "hurtful". The prohibition on hate speech passed constitutional muster in all other respects. In addition, the court purposively interpreted aspects of the application of section 10(1) so as to limit its impact on the right to freedom of expression. This contribution firstly welcomes the court's reliance on the transformative goals of the Constitution and the Equality Act as its primary framework in interpreting section 10(1). The severance of section 10(1)(a) and the conjunctive reading of sections 10(1)(b) and (c) ("be harmful or to incite harm" and ʺpromote or propagate hatred" respectively) also seem sensible considering the court's broad definition of "harm". The article further emphasises that the terms of section 10 call for a proper consideration of context. In this regard, the court rightly considered the extreme homophobia in the society addressed by Mr Qwelane, the particular vulnerability of the target group and the real threat of devastating imminent consequences to conclude that Qwelane's words were clearly intended to "incite harm" and "propagate hatred". Yet the court's view that the speaker's subjective intention is irrelevant in performing the requisite objective reasonableness assessment from the ambit of section 10(1) is arguably less judicious, as is the categorical exclusion of expression in private. Ultimately, the objective case-by-case reasonableness inquiry under section 10(1) should be whether a reasonable person in the speaker's position should have refrained from making the impugned harmful discriminatory utterances. This inquiry involves a determination of wrongfulness based on the constitutional duty not to discriminate unfairly. It invokes all the aspects of the Equality Act's definition of discrimination as well as all the elements of fairness analysis set out in section 14 of the Equality Act. Factors to be considered include the value of the particular expression, and the extent of the (potential) harm to individual members of a protected group and to society as a whole, as well as justification considerations such as the respondent's legitimate and bona fide exercise of the right to freedom of expression and to privacy.
{"title":"Hate Speech in the Equality Act Following the Constitutional Court Judgment in Qwelane v SAHRC","authors":"Marelize Marais","doi":"10.17159/1727-3781/2023/v26i0a15438","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15438","url":null,"abstract":"In its judgment in Qwelane v South African Human Rights Commission 2022 2 BCLR 129 (CC), the Constitutional Court declared section 10(1) of the Equality Act unconstitutional and invalid to the narrow extent that section 10(1)(a) refers to the intention to be \"hurtful\". The prohibition on hate speech passed constitutional muster in all other respects. In addition, the court purposively interpreted aspects of the application of section 10(1) so as to limit its impact on the right to freedom of expression. This contribution firstly welcomes the court's reliance on the transformative goals of the Constitution and the Equality Act as its primary framework in interpreting section 10(1). The severance of section 10(1)(a) and the conjunctive reading of sections 10(1)(b) and (c) (\"be harmful or to incite harm\" and ʺpromote or propagate hatred\" respectively) also seem sensible considering the court's broad definition of \"harm\". The article further emphasises that the terms of section 10 call for a proper consideration of context. In this regard, the court rightly considered the extreme homophobia in the society addressed by Mr Qwelane, the particular vulnerability of the target group and the real threat of devastating imminent consequences to conclude that Qwelane's words were clearly intended to \"incite harm\" and \"propagate hatred\". Yet the court's view that the speaker's subjective intention is irrelevant in performing the requisite objective reasonableness assessment from the ambit of section 10(1) is arguably less judicious, as is the categorical exclusion of expression in private. Ultimately, the objective case-by-case reasonableness inquiry under section 10(1) should be whether a reasonable person in the speaker's position should have refrained from making the impugned harmful discriminatory utterances. This inquiry involves a determination of wrongfulness based on the constitutional duty not to discriminate unfairly. It invokes all the aspects of the Equality Act's definition of discrimination as well as all the elements of fairness analysis set out in section 14 of the Equality Act. Factors to be considered include the value of the particular expression, and the extent of the (potential) harm to individual members of a protected group and to society as a whole, as well as justification considerations such as the respondent's legitimate and bona fide exercise of the right to freedom of expression and to privacy.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135831145","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-08DOI: 10.17159/1727-3781/2023/v26i0a13335
Lerato Rudolph Ngwenyama
In Daniels v Scribante (hereafter the Daniels case) the Constitutional Court had to decide whether: (a) the Extension of Security of Tenure Act 62 of 1997 (ESTA) afforded Ms Daniels the right to make improvements to her dwelling; (b) if consent from the person in charge, Mr Scribante, was a requirement for Ms Daniels to make such improvements; and (c) if consent was not a requirement, if Ms Daniels could effect improvements to the total disregard of Mr Scribante. The judgment in Daniels is important not only because it paved the way for Ms Daniels to effect improvements on her existing dwelling without the consent of Mr Scribante, but also because it showed that under section 8(2) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) on the application of the Bill of Rights Mr Scribante owed a positive obligation to Ms Daniels to ensure that she lived in conditions that afforded her human dignity. In Daniels the Constitutional Court indicated that private landowners were enjoined by section 25(6) of the Constitution through ESTA to accommodate ESTA occupiers on their land. According to the Constitutional Court in Daniels, the nature of the obligation imposed by section 25(6) of the Constitution was both negative and positive, and in this particular case it rested on Mr Scribante. Against this background, this case note provides at the outset the salient facts and judgment of the Daniels case. This is followed by an analysis aimed at critiquing the judgment in Daniels pertaining to what is expected of private landowners in the new constitutional dispensation. It is concluded that more may be required from the private landowner – a positive duty – to ensure that ESTA occupiers enjoy fundamental rights.
{"title":"The Obligation on Landowners to Accommodate ESTA Occupiers on their Land: Critically Analysing Daniels v Scribante 2017 4 SA 341 (CC)","authors":"Lerato Rudolph Ngwenyama","doi":"10.17159/1727-3781/2023/v26i0a13335","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a13335","url":null,"abstract":"In Daniels v Scribante (hereafter the Daniels case) the Constitutional Court had to decide whether: (a) the Extension of Security of Tenure Act 62 of 1997 (ESTA) afforded Ms Daniels the right to make improvements to her dwelling; (b) if consent from the person in charge, Mr Scribante, was a requirement for Ms Daniels to make such improvements; and (c) if consent was not a requirement, if Ms Daniels could effect improvements to the total disregard of Mr Scribante. The judgment in Daniels is important not only because it paved the way for Ms Daniels to effect improvements on her existing dwelling without the consent of Mr Scribante, but also because it showed that under section 8(2) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) on the application of the Bill of Rights Mr Scribante owed a positive obligation to Ms Daniels to ensure that she lived in conditions that afforded her human dignity. In Daniels the Constitutional Court indicated that private landowners were enjoined by section 25(6) of the Constitution through ESTA to accommodate ESTA occupiers on their land. According to the Constitutional Court in Daniels, the nature of the obligation imposed by section 25(6) of the Constitution was both negative and positive, and in this particular case it rested on Mr Scribante. Against this background, this case note provides at the outset the salient facts and judgment of the Daniels case. This is followed by an analysis aimed at critiquing the judgment in Daniels pertaining to what is expected of private landowners in the new constitutional dispensation. It is concluded that more may be required from the private landowner – a positive duty – to ensure that ESTA occupiers enjoy fundamental rights.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43800676","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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