Department of Private Law

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Browsing Department of Private Law by browse.metadata.advisor "Human, C. S."

Now showing 1 - 5 of 5
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    Considering the best interests of the child when marketing food to children: an analysis of the South African regulatory framework
    (Stellenbosch : Stellenbosch University, 2016-12) Mills, Lize; Human, C. S.; Stellenbosch University. Faculty of Law. Dept. of Private Law
    ENGLISH ABSTRACT : This thesis seeks to establish whether the South African government fulfils its international and constitutional obligations by applying the standard of the best interests of the child when food-marketing practices to children are employed. According to the World Health Organisation, overweight and obesity ranks as the fifth leading risk for death globally. It is therefore of particular concern to note that the WHO reports that in 2013 more than 42 million children under the age of five were overweight or obese. Although the reasons for the tremendous increase in global obesity rates can be complex and a number of factors contribute to the associated rise in noncommunicable diseases, research has shown that the heavy marketing of fast food and energy-dense, micronutrient-poor foods and beverages is a probable causal factor in weight gain and obesity. It has been established and accepted that there is a relationship between the marketing of food and children’s dietary choices and consumption. Moreover, studies from all over the world show that the foods which are most often marketed to children, are foods which are nutritionally poor and which contain high levels of salt, sugar and fat. Consequently, the WHO and other bodies have called for a restriction to be placed on the marketing of nutritionally poor foods to children. This thesis entails a discussion and an analysis of South Africa’s response to this call. It describes and assesses this country’s regulatory efforts regarding the marketing of food to children, comparing it to standards set by both international law and methods of regulation in other jurisdictions. The aim of the thesis is to assess the implementation of South Africa’s international and constitutional obligations in this respect, focussing in particular on the duty to regard the best interests of children as a matter of paramount importance and primary concern. The concept of the best interests of the child has been firmly entrenched in international law, the South African Constitution and South African legislation and jurisprudence. Since the Committee on the Rights of the Child has confirmed that the best interests of the child is a substantive right of itself, while also being a rule of procedure and a method of interpretation, it is also true that the implementation of this right may have an effect on other fundamental rights and freedoms. The thesis provides some suggestions as to how to achieve a proportional balance between the best interests of the child and the rights of the food and media industries, and of parents in South Africa, whilst bearing in mind that children’s interests are more important than anything else.
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    A critical analysis of State responsibility to internally displaced children in Africa
    (Stellenbosch : Stellenbosch University, 2018-12) Fawole, Charissa Esther; Human, C. S.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT : The issue of international forced migration has received much international attention of late, but the problem begins much closer to home. Internal displacement is a type of forced migration, which occurs within a State’s boundaries. Internally displaced persons (“IDPs”) outnumber refugees at least two to one. Africa is a continent with the largest number of IDPs. Another daunting reality is that a least half of all IDPs in children. Therefore, internally displaced children in Africa are a group of children that warrant special consideration. Internally displaced children can be described as persons under the age of 18 years who are forced to leave their place of habitual residence but do not cross an international border. For this reason, the State in which they are displaced has the primary responsibility for their protection and assistance. Situations of internal displacement present several risks to the physical security, basic needs, social, economic and cultural rights and the civil and political rights of internally displaced children. This thesis, therefore, examines the legal obligations that States have to internally displaced children. As a supplementary research question, it will examine the most effective means to hold States accountable for their obligations to internally displaced children. To determine the obligations that State have to internally displaced children this thesis includes a critical analysis of the key instruments that govern children’s rights law and the law on internal displacement that are applicable to internally displaced children in Africa. The instruments critically analysed in this thesis are the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, the United Nations Guiding Principles on Internal Displacement, the International Conference on the Great Lakes Region’s Protocol on the Protection and Assistance of Internally Displaced Persons and the African Union Convention for the Protection and Assistance of Internally Displaced Persons (Kampala Convention). A children’s rights perspective is the theoretical lens that used to critically analyse these instruments. The critical of the analysis of the key instruments demonstrates that the law, in theory, responds to the majority of the risks, rights and needs of internally displaced children. To address the secondary research question, the thesis examines the principle of accountability, the concept of sovereignty as responsibility, accountability mechanisms, the role of non-governmental organisations and practical steps for that facilitate State compliance with their obligations. Case studies of Uganda, the Central African Republic, Nigeria and Sudan provide context to the study and provide an opportunity to examine the steps for the practical implementation of State obligations to internally displaced children, which supports accountability. The thesis concludes with recommendations and framework from a children’s rights perspective that have the potential to improve the protection and assistance of internally displaced children and encourage States to comply with their obligations to this group of children. The recommendations and framework combine the theoretical aspects provided by a critical analysis of the law with practical steps that operationalise accountability with a focus on internally displaced children.
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    Einde van lewe besluite ten opsigte van defektiewe babas : 'n juridiese perspektief
    (Stellenbosch : University of Stellenbosch, 2006.12) Rossouw, Elzaan; Human, C. S.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.
    End of life decisions regarding defective babies raise several controversial questions. The root of the problem in withdrawing or withholding life-sustaining treatment from defective babies lies in the conflict between human emotions, technological advancements and legal considerations. As a result of advances in medical science and neonatal technology, the lives of defective babies can often be saved or indefinitely prolonged. The question has become not whether we can treat these babies, but rather whether we should. Whether or not a defective baby’s life must be prolonged raises serious moral and ethical issues. A life compromised by severe physical and mental handicaps is weighed against an early and painless death. The best interest of the baby is the primary consideration from a legal point of view. Various factors must be taken into account to give content to this concept. Another central question is to determine who the decision maker(s) should be and what weight should be given to their opinions. Due to the fact that defective babies can not participate in this decision making process or communicate their wishes and preferences, surrogate decision makers must decide on their behalf. In sharp contrast to England, America and Canada, there is hardly any literature and no reported case law in South Africa to demonstrate the complexity of end of life decisions regarding defective babies. Selective non-treatment of defective babies have received little attention in the South African law. The Bill of Rights, inspired by regional and international Conventions determine the framework from a juristic perspective wherein decisions must be made and justified. This framework requires that the focus must be on the most vulnerable and dependant, namely the defective baby.
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    Perspectives on the best interests of the child : developments in the interpretation and application of the principle in the South African law relating to custody
    (Stellenbosch : Stellenbosch University, 2004-04) Basson, Lindinette; Human, C. S.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: The Constitution of the Republic of South Africa entrenches the best interests of the child as being of paramount importance in all matters concerning the child. This commitment to the promotion of the welfare of children is not unique to modern South African law, but is an acknowledged principle of the common law and international child law as well. With such well-established recognition the question, which forms the primary focus of this study, arises whether the principle of the best interests of the child is workable and applicable in real life scenarios where the custody of a child has to be decided. The challenge to the application of the principle in this context is to reach a decision that will protect the parent-child relationship regardless of the marital breakdown. The question is whether the principle allows for and creates an honest awareness of and commitment to the welfare of children that influence decisions in this context or whether courts and decision-makers merely pay lip service to it in order to conceal the haphazard way in which custody is awarded. In order to determine the workability and applicability of the principle, it is necessary to know how the principle has evolved in the South African legal context. Through the examination and analysis of existing literature, international conventions, legislation and case law, a number of different perspectives on the developments in the interpretation and application of the principle are provided. These perspectives culminate in the useful and constructive insight and conclusion that the value of the concept is dependant upon the correct approach to the principle and its characteristics. The defining characteristic of the principle of the best interests of the child is its inherent vagueness and indeterminacy. Though this subjects the principle to serious criticism, this study supports the argument that indeterminacy is in fact essential. It ensures not only the flexibility of the concept, rendering it applicable to the time, cultural sphere and social context and unique circumstances of each case it is applied to, but a holistic approach to the child as individual and family as a unit as well. This holistic approach forms the foundation of the lists of criteria in McCall v McCall 1994 (3) SA 201 (C) and the Children's Bill, thereby establishing the workability and value of the principle for fair and just results in all decisions pertaining to the custody of children.
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    Towards transformative justice for un-coerced adult female sex workers in South Africa : an approach that speaks to the multi-layered and multi-faceted realities of women in South Africa
    (Stellenbosch : Stellenbosch University, 2024-03) Lourens, Marna; Human, C. S.; Coetzee, Azille; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: This study provides insight into the lived experiences of sex workers in South Africa and the legal and policy frameworks that shape their lives, with the ultimate goal of contributing to a more just and equitable society. This was done through an intersectional analysis of the position of the sex worker in South Africa within a constitutional dispensation. The transition to democracy prompted a significant and radical paradigm shift in South African law. It required the transformation of patterns of legal, social, cultural, and economic disadvantage, which was intended to serve all of those who have previously been excluded or situated on the margins. It is questionable, then, why sex workers suffer human rights abuses with high incidences of sexual and other violence, unemployment, and lack of access to legal and health services. A key finding of this study is that the criminal law framework cannot respect the sex worker as an autonomous individual while simultaneously addressing her vulnerability within institutionalised frameworks of power. Far from being something obvious and an expression of natural law, the regulation and criminalisation of sex work have always been ambiguous and contested, serving larger agendas of colonial, apartheid and post-apartheid governments. Informed by rigid gender identities and expectational norms, various agendas of punitive control have entrenched an ideological legal framework that excludes sex workers from constitutional protection. Because sex workers remain outside the realm of constitutional protection, they have been unable to improve their lives. This research, therefore, highlights the critical need to reframe the lens through which sex work is approached in South Africa. The study shows that to understand and act against social injustice, the life worlds of marginalised people should be the starting point of any academic and other enquiries. Intersectionality is a lens that recognises complex relationships and the differing coercive circumstances within which people exercise agency. It supports a view of justice that does not deny the reality of exploitation in sex workers’ lived experiences but rather draws attention to the role of wider social structures in its reproduction. Insofar as it moves the discourse beyond punishment and retribution (the criminal law as justice), intersectionality is a lens that recognises the relevance of lived experience, social location, embodiment and contexts of power and knowledge-making.