When moral outrage determines a legal response: Surrogacy as labour

by | Oct 19, 2019 | SAJHR, SAJHR V29 I3

When moral outrage determines a legal response: Surrogacy as labour

Authors Caroline Nicholson

ISSN: 1996-2126
Affiliations: Department of Jurisprudence, Faculty of Law, University of Pretoria
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 496 – 514

Abstract

Surrogacy is a complex issue that evokes a strong moralistic response. In South Africa, commercial surrogacy is illegal and surrogacy agreements that contain financial incentives beyond expenses associated with the pregnancy and birth are unenforceable. Despite this, commercial surrogacy appears to remain a reality in South Africa. Further, given the pervasive poverty that exists in the country, the question arises, should commercial surrogacy be permitted as a means to alleviate the dire circumstances of poverty-stricken women and those dependent on them. I seek to answer this question by taking a close look at the nature of surrogacy, some of the arguments for and against it, and the Indian model of commercial surrogacy as a potential model for commercial surrogacy in South Africa.

The role of administrative law in enforcing socio-economic rights: Revisiting Joseph

by | Oct 19, 2019 | SAJHR, SAJHR V29 I3

The role of administrative law in enforcing socio-economic rights: Revisiting Joseph

Authors Melanie Murcott

ISSN: 1996-2126
Affiliations: Lecturer, Department of Public Law, University of Pretoria
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 481 – 495

Abstract

Joseph v City of Johannesburg has been both applauded by administrative lawyers, as a case in which formalism was rejected and a substantive model of administrative law adjudication was embraced, and condemned by human rights lawyers, as a case that focused on procedural fairness rather than ‘the hard rights of citizens and their plight’. I argue that because Joseph concerned a group of poor and vulnerable occupiers of an inner-city building deprived of their electricity, resulting in an inability to meet their basic needs: to cook, refrigerate their food, heat their homes, do homework, operate medical equipment, etc, Joseph is primarily a socio-economic rights case in which a requirement of the administrative law, procedural fairness, was invoked so as to protect and enforce a right to electricity. I critique the administrative law strategy invoked on behalf of the occupiers in Joseph to enforce the occupiers’ claim to have their electricity reconnected; the courts’ treatment of that strategy; and whether it is an effective and, if so, desirable tool for the enforcement of socio-economic rights in the future.

Of Dorothy’s dog, ‘poststructural’ fairy tales … and the real: Power, Poverty and the General Principles of the South African Law of Contract

by | Oct 18, 2019 | SAJHR, SAJHR V29 I3

Of Dorothy’s dog, ‘poststructural’ fairy tales … and the real: Power, Poverty and the General Principles of the South African Law of Contract

Authors Jaco Barnard-Naudé

ISSN: 1996-2126
Affiliations: Professor, Department of Private Law, University of Cape Town
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 467 – 480

Abstract

South African precedent does not allow for the consideration of the validity or enforceability of a contract in terms of the good faith principle. Yet, the principle of good faith permeates the foundational ideals and the spirit of South Africa’s post-apartheid Constitution. After re-emphasising the by now trite point that all legal rules have distributive consequences and that the common law represents a set of political choices, the article discusses the philosophical history of good faith and defends it as the primary transformative ethical device of the general principles of contract law, arguing that an elevated status for good faith in contract is implicit in the post-liberal reading of the Constitution and the ills that such a reading seeks to address. With reference to the work of Michel Foucault, the article concludes that curial consideration of the question whether a party to a contract has abused her bargaining power, forms a critical part of the transformative work that contract law is (also) constitutionally mandated to do.