Gender Normalisation Surgery and the Best Interest of the Child in South Africa

by | Oct 28, 2019 | SLR, SLR V29 I1

Gender Normalisation Surgery and the Best Interest of the Child in South Africa

Authors Rachel Sloth-Nielsen

ISSN: 1996-2193
Affiliations: None
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 48 – 72

Abstract

Children born with Intersex characteristics are routinely subjected to genital normalising surgery, with the decision to undergo this surgery being made by the child’s parents while they are still very young. The international community, including the United Nations ("UN"), has condemned these surgeries. In a ground-breaking decision, the Columbian Constitutional Court ruled that only the child can consent to the surgery and thus the surgery must be postponed until the child is able to consent. In the South African context, these surgeries violate the child’s dignity and autonomy. It is thus argued that these surgeries are not in the best interest of the child. The surgery should therefore not be performed until children themselves can consent in an informed manner.

Marital Rape and the Cultural Defence in South Africa

by | Oct 28, 2019 | SLR, SLR V29 I1

Marital Rape and the Cultural Defence in South Africa

Authors Lea Mwambene, Helen Kruuse

ISSN: 1996-2193
Affiliations: Associate Professor, University of the Western Cape; Senior Lecturer, Rhodes University
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 25 – 47

Abstract

In 2007 the Criminal Law (Sentencing) Amendment Act 38 of 2007 ("Sentencing Amendment Act"), read together with the Criminal Law (Sexual and Related Matters) Amendment Act 32 of 2007 ("Sexual Offences Amendment Act"), effectively took away an accused’s ability to lead cultural and religious evidence in sexual offence charges. This article questions whether it is right to simply legislate away these beliefs which may be necessary to establish the context of an offence. In particular, we question whether this prohibition advances or hinders the constitutional diversity project in South Africa. We further ask whether ignoring an aspect of an accused’s culpability (and his or her knowledge of unlawfulness) only serves to deepen the alienation that many South African indigenous people feel in relation to the legal system. We ask these questions in full knowledge of the seemingly insurmountable problems raised by allowing such evidence in court, particularly in the case of marital rape. For example, we recognise the possibility of the accused using his or her culture in an opportunistic and self-serving way. More seriously, we recognise that the use (and acceptance) of a cultural belief in South Africa could not only perpetuate stereotypes of reified, monolithic, "backward" cultures, but could also lead to racial essentialism which permits the subordination of women of colour in the name of ethnic differences. Being mindful of these problems, this article seeks to escape the simplistic conception of justice as one where "all persons are equal before the law". Instead, we recognise that this system may operate quite separately from people in an embedded community. In this light, we consider whether, in a charge of rape or sexual assault in a customary marriage setting, cultural beliefs can be led in a way that (1) does not essentialise culture; and/or (2) undermine women’s rights.

Subconscious Advocacy – Part 1: Nonverbal Communication in the Courtroom

by | Oct 28, 2019 | SLR, SLR V29 I1

Subconscious Advocacy – Part 1: Nonverbal Communication in the Courtroom

Authors Willem Gravett

ISSN: 1996-2193
Affiliations: Senior Lecturer, University of Pretoria
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 3 – 24

Abstract

Social science has been used with increasing success in a wide variety of human endeavours. For example, marketing, human relations and the delivery of health services are among the widely expanding applications of the classic disciplines of psychology, sociology, anthropology and social psychology. More recently, trial lawyers have also shown increased interest in applying the research findings and theoretical insights of social science to litigation. After all, every law and legal institution is based upon assumptions about human nature and the manner in which human behaviour is determined. Although trial lawyers have been using subconscious nonverbal and verbal persuasion techniques for centuries, social science has recently provided empirical support for trial practice theories that heretofore have been based solely on folklore, intuition and experience. I aim to show that principles of human behaviour derived from social psychological laboratory and field research illuminate the behaviour of actors in the courtroom, equip trial lawyers to better represent their clients, and even suggest ways in which the trial system could be improved. Some scholars claim that the increasing body of psychological literature on the effects of subconscious verbal and nonverbal persuasion, has enabled trial lawyers to improve their courtroom effectiveness to the point where they can "covertly" control how fact-finders decide cases. It is true that social scientists have discovered a myriad of factors that affect judicial decision-making, but that have nothing to do with the merits of the case. However, by communicating this information to trial lawyers, the social scientists have actually decreased the likelihood that these extraneous influences will affect judicial decisions. They have identified existing barriers to rational decision-making, and have devised strategies to reduce their impact, and thereby improve the chances that fact-finders will render better, more informed, and more rational judgments.

Exploring the difficult dialogues technique as a tool for value-added law teaching and learning

by | Oct 27, 2019 | SLR, SLR V30 I1

Exploring the difficult dialogues technique as a tool for value-added law teaching and learning

Authors L van Niekerk

ISSN: 1996-2193
Affiliations: Lecturer, Faculty of Law, University of the Free State
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 138 – 151

Abstract

The increasingly rapid pace of change at universities requires lecturers to adapt their teaching techniques to remain attuned to their students. One of the major challenges faced by lecturers in the field of law is to facilitate learning on contentious issues. In this regard, lecturers at the University of the Free State ("UFS"), for example, are challenged to engage their students in discussions on ground-breaking and/or complex issues, which could be controversial and sensitive issues in the classroom. The objective of these discussions is to highlight the relevant legal principles and concepts, but also to teach students how to put their views across in a civil, democratic fashion, thereby sharpening students’ judicial proficiency, critical thinking as well as argumentation skills in their respective law modules. To assist lecturers to achieve this objective in class, this article examines the Difficult Dialogues technique as a tool in contemporary law teaching. The potential benefits of the technique in meeting the critical outcomes stipulated by the LLB Qualification Standard are established. This is then followed by a practical illustration of how discussion on contentious issues may be integrated with a law module to facilitate value-added teaching and learning. It is concluded that the Difficult Dialogues technique can indeed be used to good effect to not only cover the relevant learning content and meet critical LLB outcomes, but also to teach LLB graduates the skill of democratic discussion on complex issues.

Die effek van die abstrakte stelsel van eiendomsoorgang by bateverkope deur ’n kurator van ’n insolvente boedel

by | Oct 27, 2019 | SLR, SLR V30 I1

Die effek van die abstrakte stelsel van eiendomsoorgang by bateverkope deur ’n kurator van ’n insolvente boedel

Authors AL Stander, HJ Kloppers

ISSN: 1996-2193
Affiliations: Professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus; Mede-professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 126 – 137

Abstract

The content, meaning and effect of the abstract theory of the transfer of ownership is that the underlying agreement can be irrelevant to the eventual transfer of ownership over a specific asset to another person. What effect can the application of the abstract theory have in insolvency law? Examples to illustrate the relevance of this question are where a person’s appointment as provisional trustee for some reason has not yet taken place, but he has already "sold" an asset from the estate to someone else; or where that person was provisionally appointed, but did not obtain the required consent to sell the asset from the estate; or he did not comply with the instructions of the creditors in connection with the sale of the asset. This position raises the following question: what is the relevance of the abstract theory of the transfer of ownership in insolvency law. According to the authors, the answer to the preceding questions is that if the provisional trustee was indeed properly appointed and authorised at the time of the real agreement, transfer of ownership will take place. This is the position despite the shortcoming in the underlying agreement. What effect does the application of the abstract theory have on the position where that trustee was properly provisionally appointed, but did not obtain the permission explicitly required by the Insolvency Act, to sell the asset from the estate? In such a case, there is indeed a defect in the real agreement, which can also compromise the transfer of ownership. This is also the case where the provisional trustee did not comply with the express instructions of the creditors in connection with the sale of the asset. The crux regarding the questions raised is to determine whether the trustee had valid authorisation or consent of the relevant parties, and only thereafter to assess whether this in any way had an impact on the intention of the parties. This is a consideration of the real agreement – not the underlying contract. This involves assessing all the surrounding circumstances from which the real agreement is derived.

Subcontracting in public procurement – The impact of the 2017 Preferential Procurement Regulations on the Construction Industry

by | Oct 27, 2019 | SLR, SLR V30 I1

Subcontracting in public procurement – The impact of the 2017 Preferential Procurement Regulations on the Construction Industry

Authors AM Anthony

ISSN: 1996-2193
Affiliations: Senior Lecturer at the University of South Africa
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 116 – 125

Abstract

The 2017 Preferential Procurement Regulations brought about vast changes to the legal landscape of construction procurement, specifically with regard to subcontracting. This article evaluates the impact of these regulations and the effect these changes may have on construction procurement and the construction industry at large. Recommendations are made where vacuums in the legal framework are found.