Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

by | Oct 26, 2022 | SLR, SLR V33 I3

Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

Authors: Bonginkosi Shozi, Roasia Hazarilall and Donrich Thaldar

ISSN: 1996-2193
Affiliations: LLB LLM PhD, Postdoctoral Scholar, Institute for Practical Ethics, UC San Diego, Honorary Research Fellow, University of KwaZulu-Natal; LLB, Masters candidate, University of KwaZulu-Natal; BLC LLB MPPS PGDip PhD, Professor, University of KwaZulu-Natal
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 529 – 547
https://doi.org/10.47348/SLR/2022/i3a9

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Shozi, B, Hazarilall, R and Thaldar, D
Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)
Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 529 – 547
https://doi.org/10.47348/SLR/2022/i3a9

Abstract

The recent case of QG v CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021) concerns a sperm donor who applied to the court for parental responsibilities and rights in respect of a child conceived with his sperm. This is despite the fact that he had concluded a written agreement with the child’s legal parents before the child’s conception which stipulated, inter alia, that he would have no such responsibilities and rights in respect of the child. The ruling of the High Court in this case is a significant development in South African reproductive law, as the first case that deals with the legal position of a sperm donor with regard to a donor-conceived child. The following important legal principles that were laid down in the case are identified and analysed. First, there is no prohibition on a sperm donor or his family members from approaching the court in terms of section 23 or 24 of the Children’s Act 38 of 2005 to acquire parental responsibilities and rights in respect of the donor-conceived child. However, if a sperm donor or his family members bring an application in terms of section 23 or 24, they cannot rely on their genetic link with the donor-conceived child. Secondly, sperm donor agreements are in principle legal and enforceable, but the court is not bound to enforce provisions dealing with parental responsibilities and rights if it is of the opinion that such provisions are not in the best interests of the child. A sperm donor agreement may, however, be informative regarding the parties’ intentions. Criticism is expressed about the way in which the court dealt with the issues of the locus standi of donors and the psychological evaluation of donors and recepients where known donors are used.

Abandoning the Spouse, Abandoning the House? Abandonment of Co-Ownership Shares in Immovable Property [Discussion of M V M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020)]

by | Oct 23, 2022 | SLR, SLR V33 I3

Abandoning the Spouse, Abandoning the House? Abandonment of Co-Ownership Shares in Immovable Property [Discussion of M V M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020)]

Author: Richard Cramer

ISSN: 1996-2193
Affiliations: BA (Hons) LLB LLM PhD (UCT), Post-doctoral Fellow: DST/NRF SARChI Research Chair: Mineral Law in Africa, Faculty of Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 548 – 559
https://doi.org/10.47348/SLR/2022/i3a10

Abstract

The case of M v M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020) (“M v M”) is novel in its finding that the abandonment of immovable property is possible in South African law. It is also novel in finding that the requisite intention to abandon a co-ownership share in immovable property could be inferred from the facts of the case. Past case law concerning the abandonment of immovable property always failed to make a finding of abandonment as the requisite intention could never be established. This approach was consistent with our courts’ unwillingness to infer an intention to abandon valuable property in the absence of clear intention to do so. This case note seeks to critique the decision of the court in M v M in light of a legal framework in which the abandonment of landownership does not appear possible given the principle of publicity. It further seeks to ask if there were other avenues available to the court to reach what was an undeniably just outcome on the set of facts before the court.

The Conduct of “Price Undertakings” and “Interim Reviews” in the Anti-Dumping Regime of South Africa [Discussion of Casar Drahtseilwerk Saar GMBH V International Trade Administration Commission (66248/2014) 2020 ZAGPPHC 141 (14 February 2020)]

by | Oct 23, 2022 | SLR, SLR V33 I3

The Conduct of “Price Undertakings” and “Interim Reviews” in the Anti-Dumping Regime of South Africa [Discussion of Casar Drahtseilwerk Saar GMBH V International Trade Administration Commission (66248/2014) 2020 ZAGPPHC 141 (14 February 2020)]

Author: Clive Vinti

ISSN: 1996-2193
Affiliations: LLB (cum laude) LLM PhD, Senior Lecturer, Department of Public Law, University of the Free State
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 560 – 578
https://doi.org/10.47348/SLR/2022/i3a11

Abstract

The administration of anti-dumping investigations is the sole mandate of the International Trade Administration Commission (“ITAC”). This investigation has two stages, the preliminary and final investigation stages, which are accompanied by investigation reports at each stage. The investigation can be terminated or suspended after the preliminary investigation if the offending exporter ceases exports to the Southern African Customs Union (“SACU”) at the dumped prices or revises its prices such that ITAC is satisfied that injurious dumping has been eliminated. Twelve months after the publication of the final determination in the original investigation or the previous review, interested parties can request an interim review of the duty if there are significantly changed circumstances. It is these two aspects of dumping investigations that were the subject of litigation for the first time in South African law in Casar Drahtseilwerk Saar GMBH v International Trade Administration Commission (66248/2014) 2020 ZAGPPHC 141 (14 February 2020). This note assesses the novel approach employed by the court in readily construing these aspects of the anti-dumping investigation in South Africa in accordance with the jurisprudence on the Anti-Dumping Agreement. This approach is commendable in light of the ambivalent attitude of South African courts towards the country’s obligations in terms of the multilateral agreements of the World Trade Organization, despite the promulgation of local legislation to comply with these obligations and the constitutional injunction to prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.

Providing Greater Clarity on the Meaning of Basic Education [Discussion of Moko V Acting Principal, Malusi Secondary School 2021 3 SA 323 (CC)]

by | Oct 23, 2022 | SLR, SLR V33 I3

Providing Greater Clarity on the Meaning of Basic Education [Discussion of Moko V Acting Principal, Malusi Secondary School 2021 3 SA 323 (CC)]

Authors: G Adams and BV Slade

ISSN: 1996-2193
Affiliations: BComm LLB LLM (Stell), LLD Candidate, Department of Public Law, Faculty of Law, Stellenbosch University; BComm LLB LLM LLD (Stell), Associate Professor, Department of Public Law, Faculty of Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 579 – 591
https://doi.org/10.47348/SLR/2022/i3a12

Abstract

Section 29(1)(a) of the Constitution of the Republic of South Africa, 1996 provides everyone with the right to a basic education. However, the exact meaning of a “basic education” as protected in this section has been rather uncertain as it is not defined in the Constitution or any legislative document. In Governing Body of the Juma Musjid Primary School v Essay 2011 8 BCLR 761 (CC), the Constitutional Court accepted that basic education includes, at a minimum, schooling from grades 1 to 9. In AB v Pridwin Preparatory School 2020 5 SA 327 (CC), Nicholls JA held that an educational institution which does not offer secondary or tertiary education, provides those attending the institution with a basic education. Several policy documents refer to basic education as the General Education and Training phase of schooling, which consists of schooling from grades 1 to 9. Given the uncertainty surrounding the exact ambit of a basic education, both in case law and legislation, the Constitutional Court in Moko v Acting Principal of Malusi Secondary School 2021 3 SA 323 (CC) had to answer the question “where does basic education end and further education begin?” The court’s decision provides clarity on the meaning of a basic education as protected in section 29(1)(a). This decision is to be welcomed given the importance of the right as a direct and unqualified right, and for its transformative potential. However, there is now a misalignment between the understanding of a basic education protected in section 29(1)(a) and several policy documents issued by the Department of Basic Education. This misalignment may lead to further confusion regarding the meaning of the right to a basic education and potentially negatively impact the realisation or fulfilment of the right. This note will consider the court’s decision, particularly in relation to its finding to the question posed above.

Populist conceptions of the “people” and multi-party democracy

by | Jun 18, 2022 | SLR, SLR V33 I2

Populist conceptions of the “people” and multi-party democracy

Author: JL Pretorius

ISSN: 1996-2193
Affiliations: BComm BA(Hons) LLB LLD Extraordinary Professor, Free State Centre for Human Rights, University of the Free State
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 3 – 24
https://doi.org/10.47348/SLR/2022/i2a1

Abstract

Although conceptual approaches to populism differ, there is a high degree of consensus that the ideological distinctiveness of populism lies in the unique way it constructs its core concept, the “people”. This article assesses the implications of populist understandings of the people for the constitutional endorsement of multi-party representative democracy. Regardless of its many manifestations, populism structures peoplehood around a distinct brand of ideologised popular sovereignty, in combination with another dominant host ideology, which, depending on the context, can be drawn from any of the main ideologies on the left‒right spectrum. This combination invariably produces an opposite “other”, an “anti-people”, as a necessary co-constituent of the populist people’s cohesion and identity. The homogenising and exclusionary construct of peoplehood associated with populism holds profound implications for multi-party representative government. It challenges the pluralist notion of multi-party representation by advocating for representation as the embodiment of a homogenous popular will instead. Representation as embodiment fosters extreme majoritarian attitudes and, as histories of populists-in-government have shown, tendencies towards authoritarianism. Populist conceptions of the people ultimately dispute core features of multi-party representative democracy, such as inclusive democratic citizenship, pluralist representation, oppositional political rights, the recognition of opposition parties as standing alternatives to incumbent governments, and accommodation and compromise as inclusionary democratic practice.

Deciding matters of general public importance: An analysis of the value-laden approach

by | Jun 18, 2022 | SLR, SLR V33 I2

Deciding matters of general public importance: An analysis of the value-laden approach

Author: Paul Nkoane

ISSN: 1996-2193
Affiliations: BComm LLB LLM Lecturer, University of South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 25 – 45
https://doi.org/10.47348/SLR/2022/i2a2

Abstract

There is no doubt that the Constitution of the Republic of South Africa, 1996 is supreme. Thus, all laws and conduct should conform to it. However, the Constitution is constructed in such a manner that can lead to the questioning of its scope and therefore the extent of its supremacy. The provisions of the Constitution are crafted to focus on specific issues. This has led some to question its reach in matters that do not raise clear constitutional questions. This article is intended to provide a historical overview of the foundation of the Constitution and concomitantly to untangle its reach and scope. The analysis reveals that the scope of the Constitution extends far beyond the frontier of its provisions in the Bill of Rights. This then entails that matters of general public importance that do not raise clear constitutional questions could be decided through the application of constitutional standards.