Prof. Julia Sloth-Nielsen
Permanent URI for this collection
Position: | Professor |
Department: | Public Law and Jurisprudence |
Faculty: | Faculty of Law |
Qualifications: | BA - University of Stellenbosch, 1979 |
LLB – University of Stellenbosch, 1981 | |
LLM in Criminology – University of Cape Town, 1987 | |
LLD - University of the Western Cape, 2001 | |
Research publications in this repository | |
More about me: | here, here and here |
Tel: | 021 959 9466 |
Email: | jsloth-nielsen@uwc.ac.za |
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Browsing by Author "Sloth-Nielsen, Julia"
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Item 2 + 2 = 5? Exploring the domestication of the CRC in South African jurisprudence (2002-2006)(Brill Academic Publishers, 2008) Sloth-Nielsen, Julia; Mezmur, Benyam DawitSouth Africa commenced transition to a constitutional democracy with the adoption of an interim constitution in 1994, followed by national elections based, for the fi rst time, on universal adult suffrage. A justiciable Bill of Rights, containing some rights accorded to children, was at the core of our new society based on values of dignity, equality and respect for the freedom and security of the person, in sharp contrast to the violence and legalised discrimination that had characterised the apartheid regime. T e two years that followed the adoption of the Interim Constitution were a period of intense negotiations by a multi-party constitutional assembly to fi nalise the text of a fi nal constitution, in accordance with the principles set out in the Interim Constitution. As has previously been pointed out (Sloth-Nielsen, 1996, p.326), there was a high degree of consensus amongst political parties about the children’s rights to be included, to the extent that four of the six party submissions supported the extension of the children’s rights clause, and indeed a number of additional rights were fashioned and ultimately adopted.Item Cluster foster care: a panacea for the care of children in the era of HIV/Aids or an MCQ?(Stellenbosch University (SUNJournals), 2010) Gallinetti, Jacqui; Sloth-Nielsen, JuliaThe ravages wrought by HIV/AIDS on child-care arrangements in the African context are well documented (Richter & Sherr, 2009; Sloth-Nielsen & Mezmur, 2008; Tsegaye, 2007; sources cited there). Notably, these constitute the breakdown of traditional kinship structures which would ordinarily have accommodated orphans and other vulnerable children, a decrease in the capacity of existing extended family structures to care for the numbers of children requiring alternative care, and the emergence of child-headed households. The topic of child-headed households, too, has emerged as a key concept in international child rights law (Couzens & Zaal, 2009; Sloth-Nielsen, 2004; Sloth-Nielsen in Skelton & Davel, 2010; UN Committee on the Rights of the Child (UNCROC), General Comment No. 3 on HIV/ AIDS and the rights of the child, 2003), and this phenomenon has been directly related to the onset of the pandemic.Item The constitutional family: developments in South African family law and jurisprudence under the 1996 Constitution(Oxford University Press, 2003) Sloth-Nielsen, Julia; Van Heerden, BelindaThe article reviews the process of liberalization of child and family law that has occurred since the adoption of South Africa's 1996 Constitution. Although the Constitution does not expressly protect the right to family life, the principles of dignity, equality and concern for the vulnerability of marginalized groups in society have heralded a wide‐ranging revision of the legal meaning of family, of how the law should protect family members, and is reshaping the understanding of relationships between family members (including children). Developments in areas such as domestic violence, custody allocation upon divorce, the growing recognition of same sex partnerships, religious and customary marriages, and the rights and status of illegitimate children in both civil and customary law are discussed. The article suggests that these piecemeal judicial and statutory reforms may result in a potentially dangerous proliferation of legally recognized family forms. At the same time, the difficulties of multiculturalism and religious diversity in the family law arena in South Africa are highlighted.Item Deprivation of children's liberty 'as last resort' and 'for the shortest period of time': how far have we come? And can we do better?(Juta Law, 2013) Sloth-Nielsen, JuliaCommencing with a brief historical overview of detention of children in South Africa, and legislative attempts to curb its use, this article reviews all forms of deprivation of liberty under the Child Justice Act 75 of 2008 and attempts to assess at a practical level whether - or not - progress is being made in the quest for the minimal use of deprivation of liberty.Item A developing dialogue – children’s rights, children’s law and economics: surveying experiences from Southern and Eastern African law reform processes(Tilburg University Schoordijk Institute, 2008) Sloth-Nielsen, JuliaLaw reform in southern and eastern African countries to domesticate the UN Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC), to synthesize common, civil and customary laws, and to modernise and codify a myriad of outdated statutes affecting children that were inherited from the colonial era has been an ongoing project in numerous states in the region since the first comprehensive Children’s Act, that of Uganda, in 1996. These law reform processes are, in many instances, still ongoing.Item Does the differential criterion for vesting parental rights and responsibilities of unmarried parents violate international law? A legislative and social study of three African countries(Cambridge University Press, 2011) Sloth-Nielsen, Julia; Wakefield, Lorenzo; Murungi, Nkatha L.The right to non-discrimination for all children is established in international human rights law. International children's rights law further provides for the common responsibility of parents for the maintenance of their children. African customary law and common law have always made a distinction between children born in and out of wedlock so far as the duty to maintain them is concerned. The resilience of this customary and common law approach is evident in statutory provisions of the countries discussed in this article. This is despite international obligations under children's rights treaties ratified by these countries. On the face of it, the distinction of responsibility based on marital status seems harmless. However, in view of gender inequities and resource distribution between men and women in society, such a distinction has serious implications for the rights of affected children.Item A dutiful child: the implications of Article 31 of the African Children's Charter(Cambridge University Press, 2008) Sloth-Nielsen, Julia; Mezmur, Benyam DawitEach right has a corresponding duty. The African Children's Charter, under article 31, imposes a range of duties on children. Understandably, it could become contentious when an instrument on the rights and welfare of children expressly imposes duties on them. After setting the platform for discussion by highlighting international experiences and outlining the African concept of human rights, this article critically examines and attempts to clarify the precise meaning, content, conditions of compliance and application of those duties for children- By way of conclusion, it suggests that article 31 represents a valuable addition to the international human rights agenda, and that a purposeful interpretation of its constituent parts reveals that children should be required to play a role at family, community, national and continental levels, in accordance with their age and maturity as they grow up, as part and parcel of their heritage, empowerment and developing citizenship.Item A foreskin too far? Religious, medical or customary circumcision and the Children's Act 38 of 2005 in the context of HIV/AIDS(University of the Western Cape, 2012) Sloth-Nielsen, JuliaThis article analyses the legal framework surrounding male circumcision (infant and youth) in South Africa, having explained the requirements of international human rights law. Provincial legislation regulating traditional circumcision is detailed, followed by an explanation and analysis of the relevant provisions of the Children's Act 38 of 2005 and its accompanying Regulations. Thereafter the recently changed context, as evidenced by the current campaign for mass male circumcision as a means of preventing HIV/AIDS, is considered. The implications for the narrow circumstances in which circumcision is legalised by the Children's Act are then explored, and further potential results - in the longer term - for traditional circumcision practices are predicted.Item An ice-breaker: state party reports and the 11th Session of the African Committee of Experts on the Rights and Welfare of the Child: recent developments(Juta Law, 2008) Sloth-Nielsen, Julia; Mezmur, Benyam DawitDuring its 11th session, the African Committee of Experts on the Rights and Welfare of the Child held its first Pre-Session for the consideration of state party reports. This update highlights the work of the Committee during this session. While little attention is paid to the proceedings of the 11th session, partly as a result of the fact that the session was short-lived (only three days, composed of open and closed sessions), the procedures for the Pre-Session, as well as the substance of the four reports that were discussed during the Pre-Session, occupy centre stage. In conclusion, it is argued that the whole exercise of the Pre-Session was an ice-breaker, and represents progress in its own right. In looking forward, the importance for the African Children's Committee to draw the necessary lessons from the four state party reports and to chart ways of strengthening the reporting regime is underscored. A number of tentative recommendations are made in this regard.Item (Illicit) transfer by De Gree(University of Western Cape, 2007) Sloth-Nielsen, Julia; Mezmur, Benyam DawitThe decision of the Supreme Court of Appeal (SCA) in De Gree v Webb [2007] SCA 87 (RSA) is worthy of consideration for a number of reasons, reasons which do not include the prominent (emotive) media attention devoted to the facts both before the appeal, and the ongoing publicity which occurred in diverse press and radio reports after judgment was handed down. This matter is reportedly further being considered for an appeal to the Constitutional Court. This, too, indicates both the public concern with, and vested interests in, the outcome of what was widely agreed, ultimately, to be an international adoption.Item Incy wincy spider went climbing up again – prospects for constitutional (re)interpretation of section 28(1)(c) of the South African Constitution in the next decade of democracy(Nelson R Mandela School of Law, University of Fort Hare, 2007) Sloth-Nielsen, Julia; Mbazira, ChristopherINTRODUCTION: This article reviews the first decade of jurisprudence concerning interpretation of the rights enumerated in s 28(1)(c) of the Constitution of South Africa (the Constitution), commonly referred to as the children’s socio-economic rights clause. Three broad trends are identified, which in the main have resulted in a far more limited scope of application of these rights than was originally anticipated. In addition, affirming existing jurisprudence in relation to socio-economic rights generally, dicta of the Constitutional Court signal clearly that the Court is not going to be persuaded to accept or define a minimum core content to elaborate the scope of individual socio-economic rights a d the concomitant extent of the State obligations in respect thereof .Item Inter-country adoption from a Southern and Eastern African perspective(Washington & Lee Law School, Virginia, 2010) Sloth-Nielsen, Julia; Mezmur, Benyam Dawit; Van Heerden, BelindaThis paper reviews recent developments pertinent to inter-country adoption in Southern and Eastern Africa. In particular, it focuses on the tripartite roles of governments, the judiciary and the international community, including the international media. It argues that a concerted effort towards awareness-raising is required in order to harmonise the respective roles of the above players, and in order to better regulate the practice.Item Islamic kafalah as an alternative care option for children deprived of a family environment(Juta Law, 2014) Sloth-Nielsen, Julia; Assim, Usang MariaThe inclusion of kafalah of Islamic law in the United Nations Convention on the Rights of the Child is the first time an exclusively Islamic concept is recognised in a binding international instrument. The drafting of CRC was set against the background of compromise as it relates to the provision of alternative care for children deprived of a family environment. Islamic kafalah represents one of such compromises in an attempt to accommodate the differences of the various state parties to CRC. However, many scholarly works on children’s rights refer to Islamic kafalah only within the context of its ‘discovery’ during the drafting process of CRC and, as such, the meaning, extent and practice of kafalah, as an alternative care option for children deprived of parental care, has not been the subject of much study. This is unlike the case with other forms of alternative childcare like foster care and adoption. Other studies more focused on Islam and human rights refer to kafalah only within the broader context of discussing the links and divergences between Islamic law and human rights, or children’s rights more specifically. This article specifically focuses on kafalah as an alternative care option for children deprived of a family environment in comparison with other forms of alternative childcare. The extent to which kafalah is internationally recognised and practised is also addressed. A number of themes are analysed in the article, including what the concept of kafalah entails, what its legal implications are, what factors distinguish it from other forms of alternative care, and what the international dimensions to kafalah are in relation to the subject of intercountry adoption. In light of all these questions, an understanding of kafalah will contribute to international children’s rights jurisprudence in the context of child care and protection.Item The jurisdiction of the Regional Courts Amendment Act, 2008: some implications for child law and divorce jurisdiction(Faculty of Law, University of the Free State, 2011) Sloth-Nielsen, JuliaThe promulgation of the Jurisdiction of the Regional Courts Amendment Act, 31 of 2008 (hereafter the JRCAA) in 62 large urban magisterial districts on 9 August 2010 (Women's Day) heralds a potentially drastic transformation of the practice of civil procedure in South Africa. This article focuses on its implications for family law and, especially, child law proceedings. The various dimensions of jurisdictional reform are first explained with reference to the Children's Act 38 of 2005 and the JRCAA, whereafter their import is analysed. It will be questioned whether the provisions of the JRCAA were drafted with sufficient care, and why no reference was made to the provisions of the Children's Act 38 of 2005. The potential difficulties occasioned by the new jurisdictional rules will be described. In conclusion, comments are made about the positive and less positive aspects of the JRCAA, and suggestions for reform are provided.Item Just say sorry?" Ubuntu, Africanisation and the child justice system in the Child Justice Act 75 of 2008(North-West University, 2011) Sloth-Nielsen, Julia; Gallinetti, JacquiIn the midst of concerns about serious offences committed by young people, the Child Justice Act is the first formal legislative step to introduce restorative justice in South Africa, and promotes reconciliation and problem solving as an approach to the criminal behaviour of youth. This article analyses the new place of restorative justice and ubuntu in the Act through an analysis of the Preamble, Objects and General Principles sections of the Act as well as the chapters on diversion and sentencing. It notes that there is a clear and consistent framework for restorative justice and ubuntu in the Act that accords with the Constitutional Court's understanding of both concepts. In addition, the article also enquires if the inclusion of these concepts has created a criminal justice system for children that does not hold them properly accountable for their actions. The question as to whether or not the Act has created a "just say sorry" regime is answered in the negative by way of reference to the numerous checks and balances included in the Act by the legislature. In this context it is contended that the inclusion of ubuntu-related ideologies remains relevant to the development of indigenous and locally constructed images of Africanised forms of justice, but that the true test of how it is integrated into the criminal justice system lies in the manner in which criminal justice role-players engage with ubuntu and how its implementation is effected.Item Like running on a treadmill? The 14th and 15th sessions of the African Committee of Experts on the Rights and Welfare of the Child(Juta Law, 2010) Sloth-Nielsen, Julia; Mezmur, Benyam DawitThe 14th and 15th sessions of the African Committee of Experts on the Rights and Welfare of the Child were held in November 2009 and March 2010 respectively. The Committee has considered more reports and issued its first concluding observations. The continued engagement of the Civil Society Organisations Forum with the African Children's Committee offers an example of positive progress towards supporting the implementation of the African Children's Charter. The development of a relatively well thought-out strategic plan for the African Children's Committee's work for the period 2010 to 2014 (with a better level of participation from stakeholders) also offers an advance in the work of the Committee. Despite these, there remains some room for improvement in order to allow the African Committee to achieve its mandate of the promotion and protection of children's rights in Africa.Item Modern African childhoods: does Law matter?(Oxford University Press, 2012) Sloth-Nielsen, JuliaINTRODUCTION: This paper poses a question often aimed at lawyers, especially when they straddle a culturally diverse and contested terrain of human experience, such as the role of children and families in society: does law matter? The question is all the more pertinent in African contexts, due to the pervasive poverty, prevalence of practices harmful to children, and perceived inability of weak states to put legislative intentions into effect.Item Of newborns and nubiles: some critical challenges to children's rights in Africa in the era of HIV/AIDS(Brill Academic Publishers, 2005) Sloth-Nielsen, JuliaThe international legal framework within which HIV/Aids issues should be addressed Both the UN Convention on the Rights of the Child (1989) and the regional charter for the protection and promotion of children's rights, the African Charter on the Rights and Welfare of the Child (1990), are silent on the issue of HIV/Aids directly. Nor is this particularly surprising - both were formulated before the impact of the epidemic began to be felt in the developing world, and before the implications of the disease for children could be fully understood. The most substantive elaboration of principle concerning the issues relevantItem Out of the starting blocks : the 12th and 13th sessions of the African Committee of Experts on the Rights and Welfare of the Child(Juta Law, 2009) Sloth-Nielsen, Julia; Mezmur, Benyam DawitThe 12th and 13th meetings of the African Children's Committee were held in November 2008 and April 2009 respectively. With the African Children's Charter entering its 10th year since entry into force, the real work of the African Committee is now beginning. With the consideration of the first country reports to the African Committee, the benefits of a regionally-specific child rights treaty has begun to become apparent. The recent establishment of a formal grouping of civil society organisations and individuals dedicated to furthering the regional influence of the African Children's Charter (first mooted in 2004!) comes at an opportune time. Despite some of the recurring shortcomings in the work of the Committee, it is hoped that the development of a strategic plan for the Committee's work for the period 2010 to 2014 will lay some of these concerns to rest.Item Policy and practice in South African prisons: an update(University of the Western Cape, 2005) Sloth-Nielsen, JuliaJulia Sloth-Nielsen points to challenges in the correctional system that South Africa's new constitutional democracy was faced with, including the deep-rooted militaristic tradition that needed to be replaced and the transformation in staff representativeness. She discusses various aspects of prison building design, including the still controversial privatisation of two newly built prisons and the prospect that the so-called 'New Generation' prisons may cost far more than originally envisaged. Considerable attention is paid to the development of the 2005 White Paper, which aims to change comprehensively the focus of the sector. The article notes the enormity of the challenges in implementing the philosophy of rehabilitation and reintegration as core objectives of corrections.