The Case for a Law against the Online Distribution of Non-Consensual Intimate Images in Uganda

by | May 30, 2021 | SLR, SLR V32 I1

The Case for a Law against the Online Distribution of Non-Consensual Intimate Images in Uganda

Authors: Ronald Kakungulu-Mayambala, Rukundo Solomon, Victor Phillip Makmot & Diana Rutabingwa

ISSN: 1996-2193
Affiliations: LLB (Hons) (Mak), Dip LP (LDC), LLM (Fordham), SJD (Arizona), Associate Professor, School of Law, Makerere University; LLB (Hons) (UDSM), Dip LP (LDC), Associate Researcher, Mawazo Policy Research Centre; LLB (Hons) (Mak), Dip LP (LDC) Associate, Kirunda & Wesige Advocates; LLB (TUoN), LLM (Lond), MSC (Ebor), Senior Governance and Human Rights Advisor, Deutsche Gesellschaft für Internationale Zusammenarbeit
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 93 – 128
https://doi.org/10.47348/SLR/v32/i1a5

Abstract

The distribution of sexually graphic or intimate images of individuals on the internet without their consent is on the rise in Uganda. Several female celebrities and lesser-known individuals have fallen victim to this phenomenon in recent years. This article examines the civil and criminal remedies currently available to the victims. The article argues that these remedies are insufficient to deal with the challenge posed by the non-consensual distribution of these intimate images in the online environment and argues for the creation of a new law that specifically addresses this issue.

Citizenship by Naturalisation: Are Regulations 3(2)(b) and (c) to the South African Citizenship Act 88 of 1985 Invalid?

by | May 30, 2021 | SLR, SLR V32 I1

Citizenship by Naturalisation: Are Regulations 3(2)(b) and (c) to the South African Citizenship Act 88 of 1985 Invalid?

Author: Fareed Moosa

ISSN: 1996-2193
Affiliations: BProc (UWC), LLB (UWC), LLM (UCT), LLD (UWC), Professor and Head of Department: Mercantile and Labour Law, University of the Western Cape
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 71 – 92
https://doi.org/10.47348/SLR/v32/i1a4

Abstract

This article argues that regulation 3(2)(b), read with regulation 3(2)(c), issued pursuant to section 23(f) of the South African Citizenship Act 88 of 1995 (“1995 Act”), is invalid and ought to be set aside on judicial review. It is argued that they are inconsistent with sections 5(1)(c), (2), (5) and (9)(a) of the 1995 Act. This article shows that, whereas regulation 3(2)(b) requires a foreigner seeking citizenship to be physically present in South Africa and not be absent from the Republic for more than 90 days in each of the five years preceding the date of application for citizenship, no such physical presence requirement is contained in section 5(1)(c), or in section 5 of the 1995 Act in general, if read holistically. Section 5(1)(c) merely requires that an aspirant citizen be ordinarily resident in South Africa for five continuous years immediately preceding the lodgement of an application for citizenship. In the context of section 5(1)(c), the term “ordinarily resident” is interpreted as not requiring a physical presence in South Africa for any period of time during a calendar year. Rather, it merely requires that a foreigner must have sufficiently strong ties to South Africa to support a finding that his real home is there. Therefore, it is hypothesised that the Minister of Home Affairs acted ultra vires the 1995 Act when he issued regulations 3(2)(b) and (c).

Execution against Residential Immovable Property in terms of High Court Rule 46A

by | May 30, 2021 | SLR, SLR V32 I1

Execution against Residential Immovable Property in terms of High Court Rule 46A

Author: Reghard Brits

ISSN: 1996-2193
Affiliations: BComm (Law) LLB LLD, Associate Professor, Department of Mercantile Law, University of Pretoria
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 47 – 70
https://doi.org/10.47348/SLR/v32/i1a3

Abstract

This article provides an overview of and commentary on High Court Rule 46A, which deals with the procedural rules for executing a judgment debt against residential immovable property. Rule 46A focusses on two main aspects: determining if it is justified to sell the debtor’s home in execution and, if a sale is ordered, setting a reserve price at which the property is to be auctioned. Therefore, this article analyses the provisions of rule 46A that pertain to these two components, which also serve as two layers of protection for a debtor facing the loss of his or her home.

Bringing Gender and Class into the Frame: An Intersectional Analysis of the Decoloniality-As-Race Critique of the Use of Law for Social Change

by | May 30, 2021 | SLR, SLR V32 I1

Bringing Gender and Class into the Frame: An Intersectional Analysis of the Decoloniality-As-Race Critique of the Use of Law for Social Change

Authors: Jackie Dugard & Angela María Sánchez

ISSN: 1996-2193
Affiliations: BA LLB BAHons LLM MPhil PhD, Associate Professor, School of Law, University of the Witwatersrand; LLM student, Universidad de los Andes
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 24 – 46
https://doi.org/10.47348/SLR/v32/i1a2

Abstract

During 2017, South African decoloniality theorist Tshepo Madlingozi argued, in relation to the ongoing socio-political and economic exclusion of the black majority in South Africa, that the post-1994 rights-based constitutional order represents more continuity than rupture, consolidating a triumph of social justice over liberation and a privileging of the democratisation paradigm over the decolonisation one. In Madlingozi’s critique of the “neo-apartheid” social justice order, race continues to be the most important dividing line, and human rights constitute a western “perpetuation of the coloniality of being”. This argument resonates with broader contemporary critiques of the weak, compromising and imperial nature of human rights. Against this backdrop, we examine the potential, as well as the limits, of using human rights as a tool for social change. Engaging an intersectional analysis informed by the seminal work of Kimberlé Crenshaw and Nancy Fraser, we find that the focus on decoloniality-as-race obscures other critical fault lines to the detriment of progressive change, and that a radical reading of human rights is capable of correcting this flaw. We argue that the incorporation of gender and class lenses provides a powerful tool to change both the narrative about the drivers of inequality among capitalist democracies and the role of socio-economic rights adjudication within them. Our article is also an invitation to rethink the domestic constitutional histories of the global south by acknowledging rights-based redistributive transformations within the context of market and development policies, and to push for the uptake of rights to empower social struggle and tackle structural disadvantage.

Public Policy in Family Contracts, Part II: Antenuptial Contracts

by | May 30, 2021 | SLR, SLR V32 I1

Public Policy in Family Contracts, Part II: Antenuptial Contracts

Author: Elsje Bonthuys

ISSN: 1996-2193
Affiliations: BA LLB LLM (Stell) PhD (Cantab), Professor, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 3 – 23
https://doi.org/10.47348/SLR/v32/i1a1

Abstract

This, the second part of an article on public policy in contracts between family members, focuses on legality in antenuptial contracts, particularly those which exclude all forms of sharing between spouses. The Matrimonial Property Act 88 of 1984 is now 35 years old and, apart from writing, it neither requires formalities to ensure that prospective spouses who enter into antenuptial contracts fully appreciate the consequences of their agreements, nor does it guarantee that the agreed upon property system is fair to both spouses. Instead, the focus is upon protecting the interests of third parties and creditors. The common-law principle of immutability makes it very onerous for parties to change the matrimonial property consequences during their marriage and, because the judicial discretion to order redistribution of benefits at divorce is limited to marriages concluded before the implementation of the Matrimonial Property Act, enforcement of antenuptial contracts at the termination of the marriage can lead to grossly unfair results. This unfairness has implications for gender equality, both because of gendered disparities in bargaining power at the conclusion of antenuptial contracts and legislation which limits the courts’ ability to deviate from contracts which mostly favour men, while retaining a discretion to deviate from contracts which tend to favour women. This article argues that the second leg of the public policy test, as articulated by the Constitutional Court in Barkhuizen v Napier can remedy the inadequacies in the statutory and common law by allowing the courts to consider inequalities in bargaining power and unfairness at the time of the enforcement of antenuptial contracts, in effect overriding the principle of immutability and creating a residual judicial discretion not to enforce an antenuptial contract.

Public Policy in Family Contracts, Part I: Agreements about Spousal Maintenance

by | Feb 16, 2021 | SLR, SLR V31 I3

Public Policy in Family Contracts, Part I: Agreements about Spousal Maintenance

Author: Elsje Bonthuys

ISSN: 1996-2193
Affiliations: BA LLB LLM (Stell) PhD (Cantab), Professor of Law, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 377 – 397

Abstract

Although the reciprocal duty of support between spouses is an invariable common-law consequence of marriage, spouses may extend the duty of support beyond the marriage by way of contract. Courts have also recognised contractual rights to support between unmarried intimate partners and spouses in Muslim marriages. All contracts, including those between family members, must be legal and public policy plays a role in determining the legality of contracts for spousal and partner support. This article evaluates changes in public policy about spousal maintenance, comparing agreements which establish a duty of support outside of the common law, agreements which extend the duty of support after the end of the spousal relationship through death or separation, and agreements which waive, vary or otherwise limit duties of spousal support. The article identifies certain shifts in public policy governing spousal maintenance but argues that the jurisprudence is characterised by inconsistency and contradictions, particularly in the extent to which it embodies the protection of fundamental rights and the advancement of gender equality. By way of contrast with the cases extending contractual duties of support to Muslim marriages and unmarried intimate relationships which strongly emphasise equality and non-discrimination, cases dealing with contracts regulating post-divorce maintenance restate pre-constitutional precedents based on formalistic and positivist reasoning. Another discrepancy arises between cases extending the duty of support after the death of the maintenance debtor and cases extending the duty of support after divorce or separation. The article proposes a clear evaluation of public policy in relation to these contracts, which balances the interests of contractual autonomy with the interests of fairness and equality.