Department of Public Law

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Browsing Department of Public Law by Author "Bannister, Tarryn"

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    The implications of a relational feminist interpretation of socio-economic rights for cohabiting partners
    (Stellenbosch : Stellenbosch University, 2016-12) Bannister, Tarryn; Liebenberg, Sandra; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Public Law
    ENGLISH ABSTRACT : Within South Africa, it is disproportionately women and children who bear the socio-economic burdens of divorce and family dissolution. While all family relationships need to be effectively regulated so as to protect the socio-economic needs of its members, women who are cohabiting remain particularly vulnerable. This is due to the fact that their status is governed by a patchwork of laws that do not express a coherent set of family law rules. Upon the termination of these relationships, whether initiated by one of the partners or upon a partner’s death, these women tend to fall between the cracks of the legal system. As a result of this, they often face eviction and destitution. This stands in sharp contrast to South Africa’s progressive constitutional framework which appears highly conducive to combating gender inequality and poverty. For example, the Constitution protects the right to equality (section 9), human dignity (section 10), the right to have access to adequate housing (section 26) and the right to have access to health care services, food, water and social security (section 27). The Constitution also provides for the horizontal application of the Bill of Rights through sections 8 and 39 of the Constitution. The Constitution’s commitment to founding a society based on human dignity, equality and human rights and freedoms, therefore extends to private relations. In spite of these provisions, the family law regime is primarily perceived through a private law lens informed by liberal conceptions of choice, contractual autonomy and marriage fundamentalism. This dissertation examines the potential of a relational feminist framework to guide the horizontal application of socio-economic rights between cohabitants so as to guide both common law and legislative reform in this area. This horizontal application is primarily through the vehicles of sections 8 and 39 of the Constitution. Progressive foreign law developments pertaining to the protection of unmarried cohabitants are then analysed to determine whether they can inform the development of the South African family law regime. This dissertation thus analyses how existing family law rules and doctrines can be transformed so as to be more responsive to the lived realities and needs of female cohabitants.
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    The right to have access to health care services for survivors of gender-based violence
    (Stellenbosch : Stellenbosch University, 2012-12) Bannister, Tarryn; Liebenberg, Sandra; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: In South Africa gender-based violence (hereafter “GBV”) has reached extreme levels. This violent manifestation of gender inequality is compounded by the fact that women are disproportionately affected by poverty, the HIV/AIDS epidemic and inadequate health care services. This is in spite of South Africa’s progressive constitutional and legislative framework which appears highly conducive to combating gender inequality and GBV. For example, the Constitution protects the right to equality (section 9), human dignity (section 10), life (section 11), freedom and security of the person (section 12) and the right to have access to health care services, including reproductive health (section 27(1)(a)). Extensive legislation has also been enacted for the protection of women. For example, the preamble to the Domestic Violence Act 116 of 1998 (hereafter “DVA”) recognises domestic violence as a serious social evil. While the DVA is notably silent as to the role of the health care sector, the DVA is progressive in that it contains a broad definition of domestic violence, and recognises a wide range of relationships. The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 also seeks to afford complainants of sexual offences “the maximum and least traumatising protection that the law can provide”. In addition to this, South Africa has international law obligations to address GBV and gender inequality. For example, under the Convention on the Elimination of All Forms of Discrimination against Women (1979), States are obliged to address private acts of violence and to remove discrimination against women in all fields, including health. However, despite this progressive framework of rights, some interpretations of these integral rights have been unduly formalistic, in addition to being disengaged from the lived reality of many women. There is also a substantial gap between policy and practice, with the implementation of existing legislation a continuing problem. It is therefore imperative that we analyse the right to have access to health care services through a gender lens so as to transcend a purely legalistic perspective and to interrogate gendered social processes and power relations. This thesis analyses how existing law and policy can be transformed so as to be more responsive to these lived realities and needs of survivors of GBV.