Department of Private Law

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The child's rights to, in and through basic education : an analysis of South Africa's international obligations
(Stellenbosch : Stellenbosch University, 2021-03) Strohwald, Annemarie; Human, Sonia; Horsten, Debbie; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: The child’s right to basic education is of utmost importance as it not only prepares but enables them to participate in society. The child’s right to basic education also enables the realisation of other human rights and provides the opportunity to rise above one’s circumstances. This dissertation centres on South Africa’s international obligations in relation to the child’s rights to, in and through basic education and whether or not these obligations have been fulfilled. Specific focus is placed on the obligations created by the Convention on the Rights of the Child (“CRC”) as it is regarded as the foundation of international law on the rights of the child and still remains one of the most widely ratified human rights treaties. Additional obligations created by the International Bill of Human Rights and the African Charter on the Rights and Welfare of the Child are also examined in the dissertation. In order to measure whether or not these international obligations have been fulfilled, the model for compliance is introduced. The model embraces a child-centred approach in the two frameworks that make up the model: the normative framework and the practical framework. The normative framework is founded on articles 28 and 29 of the CRC and the practical framework is based on the 4-A scheme. The dissertation proves that the value of the normative and practical frameworks is that while they are complementary and form the model for compliance, they are also essential frameworks independently. Both frameworks are essential components in order to measure international obligations as states must be normatively strong in their recognition and protection of the child’s right to basic education, but it also requires implementation. With the model for compliance clearly established, it is then applied in India and Nigeria in order to gain a comparative perspective. Attention is paid to constitutional and legislative frameworks as well as relevant case law in these two jurisdictions. India and Nigeria’s periodic reports to the CRC Committee and the ACERWC also form part of the analysis and indicate that the concerns identified by these two committees are not only passing comments but should be dealt with in order to meet international obligations and ultimately result in the realisation of the child’s right to education. ivWith the application of the model for compliance in the South African context, it is quite clear that the constitutional framework is unfortunately not mirrored by our current reality. While positive steps have been taken to align legislation and policy with the international standards of the normative framework, the implementation thereof remains a major challenge. The dissertation concludes with final reflections and recommendations on South Africa’s international obligations. The model for compliance as proposed in the dissertation is valuable as it incorporates a normative and practical framework that provides content to dimensions of the right to basic education. Striking a balance in the realisation and interpretation of children’s rights is very important, and the model for compliance attempts to find this balance.
A child’s right to basic education during the Covid-19 pandemic : a comparative analysis and evaluation of the impact of Covid-19 on the South African education system, and the effectiveness of the nation’s legal response in protecting a child’s right to education
(Stellenbosch : Stellenbosch University, 2023-03) Padachey, Denisha; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH SUMMARY : It has long been accepted that a child’s right to education is of vital importance as it not only enables them to participate and function in society but enables the realisation of their human rights and fundamental freedoms. Since the onset of the Covid-19 pandemic, the education sector faced numerous disruptions and learners were prevented from physically accessing their schools. The Covid-19 pandemic and the ways in which jurisdictions were forced to respond had and continues to have severe impacts in terms of the existing and new forms of inequalities in relation to children and their right to education. The focus of this thesis is therefore a child’s right to basic education in light of the Covid-19 pandemic, with specific reference to the South African situation. This research thus aims to identify whether the legal responses in terms of the legislation, policies, regulations and mechanisms which have been introduced and implemented in South Africa during the Covid-19 pandemic, protected a child’s right to education or hindered the realisation a child’s right to education. It is argued that a one-size fits all solution cannot apply in situations of emergency such as the Covid-19 pandemic. This thesis therefore unpacks each respective nations obligations in respect of the right to education, as well as the status of education and educational attainment in each jurisdiction prior to the outbreak of the Covid-19 pandemic. Moreover, in order to determine how a child’s right to education has been impacted and whether the legal responses introduced were effective and protected a child’s right to education, this thesis shall make use of a comparative analysis approach wherein the situation in South Africa shall be compared to that of the United States of America, the United Kingdom, Italy and Nigeria. This will be done by analysing the legal responses of each jurisdiction utilising the 4 ‘A’ approach, and taking into consideration their national, regional and international obligations in respect of a child’s right to education. This research further explores whether the legal responses and mechanisms implemented in other jurisdictions are flexible and whether they can be successfully implemented in South Africa. Finally this thesis sets out recommendations in order to respond to the challenges which arose and continue to arise in education due to the Covid-19 pandemic and the subsequent legal responses.
The impact of forensic DNA profiling on gender privacy
(Stellenbosch : Stellenbosch University, 2022-12) Lynch, Vanessa; Human, Sonia; Heathfield, L. J.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: Forensic DNA profiling used in conjunction with a DNA database is considered a powerful tool in the fight against crime borne out of its ability to link serial offenders, identify who was present on a crime scene, exonerate the innocent as well as match human remains to missing persons. Identification is achieved by the statistical matching of an “unknown” forensic DNA profile to that of a known reference sample, and not on any physical information that can potentially be derived from the DNA. It is questionable then, why the legal definition of a forensic DNA profile states that no physical, medical, or behavioural information may be derived therefrom other than the sex of that person. This study therefore investigates whether biological sex should be considered private information and if the disclosure of the sex in a forensic DNA profile infringes on gender privacy. This was done by examining the purpose of a biological sex marker in forensic casework, interrogating the development and contents of the Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 (the “DNA Act”), exploring the concept of gender privacy and how it relates to the DNA Act, the Constitution of the Republic of South Africa, 1996 (the “Constitution”) and human rights (and the balance thereof in criminal cases), as well as comparing these factors to international human rights instruments and legal systems in other countries. A key finding of this study is that the concept of gender privacy has not been formally defined in national or international law, thus a definition thereof is proposed. It further emerged that there is limited legal and scientific regard for the differences between gender identity and biological sex, as these terms are often used interchangeably. This research accordingly highlights the critical need to use these terms accurately in the forensic setting. This study shows that the knowledge of an individual’s biological sex is not always necessary in forensic criminal cases and argues that disclosing the sex in forensic DNA profiling reports may infringe on that individual's right to gender privacy. It suggests that the protection of a person's gender privacy could be achieved without recourse to the disclosure of the sex of a person in forensic DNA reports, unless in specific (limited) instances when it is necessary for the promotion of justice. This novel revelation has a global impact insofar as re-conceptualising the difference between gender identity and biological sex in the context of forensic science and promotes a deeper understanding of how these scientific, legal and social concepts are so intricately related. Changes to legislation are recommended to provide vulnerable minorities with a right to gender privacy, as an extended right to privacy in the Constitution.
Kompleksiteit en bemiddeling: ŉ Model vir die ontwerp van gepaste regulering
(Stellenbosch : Stellenbosch University, 2017-12) Spruyt, Wynand Max Alexander; Human, Sonia; Stellenbosch University. Faculty of Law. Department of Private Law.
ENGLISH ABSTRACT : The purpose of this study is to design a theoretical model of mediation that can be utilised to analyse the impact of regulation on the mediation process – and specifically the impact on the diversity that is said to characterise it. Although mediation is inherently a private and informal dispute resolution process, it is increasingly subjected to prescriptive and formal regulatory requirements. Regulation inevitably results in tension between the informal nature of mediation and the rigidity, formality and prescriptive nature of regulation. This tension is generally known as the diversity-consistency dilemma. The dilemma implies that a proper analysis of the impact of regulation is required to ensure that the appropriate and effective regulation of mediation does not occur at the cost of the inherent nature and features of the mediation process. The argument put forward in this study is that the mediation process can be modelled as a complex social system. The singular character and unique qualities of this system – and specifically the complex interaction taking place within it – distinguishes mediation from other forms of dispute resolution. This complexity model of mediation therefore allows for an analysis of the impact that regulation has on the most fundamental qualities of the mediation process. A complexity model furthermore allows for the analysis of diversity, as a quality of the mediation process, from a unique and novel perspective. Diversity in mediation is typically equated to the procedural flexibility, informality and multi-functionality that is generally associated with mediation. However, a systems analysis shows that diversity is a product of the complex interactions taking place during mediation. Diversity is therefore an inherent and fundamental attribute of the mediation process. This research consequently succeeds in giving actual content and meaning to the concept of diversity in mediation. This content makes it possible to determine with certainty what the diversity-consistency dilemma truly implies for the appropriate and effective regulation of mediation. These implications are consequently examined for each of the three most general forms of regulation in the context of mediation, namely triggering laws, procedural regulation and standardising mechanism. This examination finds that the design and implementation of regulations are often based on theoretically unsound assumptions. These mechanisms are therefore often not optimally effective, and unnecessarily exacerbate the tension represented by the diversity-consistency dilemma. The purpose of this study is therefore to lastly also provide new perspectives on the regulation of mediation. These new perspectives prove that a complexity model of mediation – as well as the unique paradigm of complexity that it permits – enables the design and implementation of effective, appropriate, fair and theoretically sound forms of regulation that will ultimately ensure and support the use of mediation. Thereby actual and legitimate requirements for standardisation and consistency can be achieved without unduly restricting the diversity that fundamentally characterises the mediation process.
Not just hot air : soft law and the protection of climate change-induced displaced children’s needs and rights
(Stellenbosch : Stellenbosch University, 2024-03) Fox, Bryony Elizabeth; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: The reality of the Climate Crisis has manifested in devastating impacts, including an increasing prevalence of cross-border climate change-induced displacement (CCID), a growing concern recognised by the Intergovernmental Panel on Climate Change. However, at present, CCID persons are not considered a recognised group in need of international protection. Further, due to the nature of the Climate Crisis and its impacts, they are unlikely to be able to rely on traditional protection regimes, such as the 1951 Refugee Convention. Children are particularly vulnerable to risks associated with CCID. Once they have crossed a border, they may be treated as irregular migrants and subjected to conditions of detention or return to a state of origin, often violating their rights. This dissertation aims to assess the extent to which various soft law instruments aid in protecting the needs and rights of CCID children who have crossed an international border during mobility and in seeking durable solutions. The research methodology involves a comprehensive analysis of soft law, which governs aspects of CCID and covers various areas of international law, including inter alia international refugee law, environmental law, and climate change law. The analysis is conducted using a children’s rights-based approach (CRBA). A CRBA recognises that children are rights holders, states are duty bearers, and international instruments such as the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) act as standard-setting instruments. This dissertation examines the multifaceted risks faced by CCID children during mobility, impacting their needs and rights as found within the CRC and ACRWC. The analysis finds that the soft law does aid states in respecting, protecting, and fulfilling the rights of CCID children. However, there is no single instrument which comprehensively addresses the rights of CCID children. Thus, the analysis underscores the challenge of addressing these rights within a fragmented legal landscape and discourages the creation of additional soft law instruments. The recommendations propose a strategic integration of specific questions on states’ implementation of CCID rights within the Committee on the Rights of the Child (CRC Committee) reporting process, aligning with the simplified reporting procedure starting in 2024 and advocating for similar measures in ACRWC periodic reports. It is also recommended that CCID children make use of individual communication procedures to hold states accountable for rights violations, drawing on, for example, the recent CRC Committee General Comment 26 for guidance. Furthermore, in order to mitigate fragmentation, collaboration is urged among various follow-up and review mechanisms, emphasising a comprehensive CRBA in reports and action plans linked to existing soft law instruments. In the context of durable solutions, this dissertation finds that CCID children face risks associated with durable solutions on two levels. The first is that traditional durable solutions offered to displaced persons tend to be child-blind, allowing children to fall between the cracks. The second is that due to the nature of climate change, the traditional durable solutions are unlikely to address the needs and rights of CCID children. This dissertation found that these risks are not addressed by the soft law instruments, and thus, these instruments do not adequately aid states in respecting, protecting, and fulfilling the rights of children in the context of durable solutions. Recommendations include integrating CCID children's rights with regard to durable solutions into state reports to the CRC Committee and African Committee of Experts on the Rights and Welfare of the Child, recognising the inadequacy of traditional solutions in the context of climate change and the need for innovative, climate adaptation solutions for CCID children and their rights.
Realising children’s right to participation during the divorce proceedings of parents
(Stellenbosch : Stellenbosch University, 2021-12) Prinsloo, Marli; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: To a child, the divorce of his or her parents is a traumatic and life-altering event. The divorce of parents and the proceedings related thereto have the potential to determine how various aspects of a child’s life, such as where they will live and go to school or how often they will have contact with the parent with whom they do not live, will develop. Based hereupon it is safe to say that a child’s parents’ divorce and related proceedings can greatly affect a child. In terms of article 12 of the United Nations Convention on the Rights of the Child, article 4(2) of the African Charter of the Rights and Welfare of the Child as well as sections 10 and 31(1) of the Children’s Act 38 of 2005, a child, who is capable to do so, has the right to participate in matters that affect him or her by sharing his or her views and having these views considered. Despite having a clear and well-established right to participate in a matter that so deeply affects them, a child’s right to participate in their parents’ divorce related proceedings is often not realised. This thesis will evaluate the various methods of representation and direct participation employed to give effect to the child’s right to participation to determine to what extent the child’s right to participation is being realised or not realised. It is generally accepted that litigation is not the ideal way in which to resolve divorce and related proceedings, especially when children are involved. This thesis attempts to determine whether family mediation as model is better suited to realise a child’s right to participation in this particular context. It does so be placing family mediation as a model in contrast with the traditional legal processes that go hand in hand with divorce related litigation. To achieve the abovementioned, a model of measuring children’s participation is proposed. The proposed model highlights the shortcomings as well as the positive aspects of the various methods of children’s participation in South Africa. This exercise is repeated in the context of Australian divorce related proceedings in an attempt to compare and contrast the two jurisdictions. Finally, the model is also employed to measure mediation as a model to realise a child’s right to participation, in aid of determining whether mediation as a model is better suited to realise a child’s right to participation in his or her parents’ divorce related matters.
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.

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