Researchers in Public Law and Jurisprudence

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The constitutional family: developments in South African family law and jurisprudence under the 1996 Constitution
(Oxford University Press, 2003) Sloth-Nielsen, Julia; Van Heerden, Belinda
The 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.
Too little? Too late? The implications of the Grootboom case for state responses to child-headed households
(University of the Western Cape, 2003) Sloth-Nielsen, Julia
The article begins with an overview of the socio-economic context surrounding child-headed households and then discusses the constitutional obligations that rest on the state vis-a-vis children growing up in these settings. Considering the scope of the state's obligation where the parents of children below the age of 18 are deceased or unable to render parental care as well as the emerging constitutional recognition of the right to family life, it is concluded that the state must ensure that children living in child-headed households are integrated into some form of family environment. Against this background the state's articulated policy on the situation of child-headed households is examined and its reasonableness is assessed. Noting various shortcoming in the policy, it is suggested that failure of the government's HIV/AlDS programmes to prioritise emergency relief would constitute a contravention of the Grootboom principles. The constitutional rights of children living in child-headed households are thus not adequately protected by the existing policy framework.
Race, class and restorative justice: achilles heel, glass ceiling or crowning glory
(Juta Law, 2004) Sloth-Nielsen, Julia; Gallinetti, Jacqui; Redpath, Jean
This article reports on a research project aimed at assessing the impact of race and class disparity in restorative justice processes in South Africa. It was conducted against the backdrop of the inclusion of family group conferencing and restorative justice policy in the Child Justice Bill 49-2002 and in various governmentally supported initiatives. All known facilitators who had convened family group conferences in the preceding year were requested to complete a questionnaire and to report on specific cases in which a family group conference had been held where victims and offenders were from different class or racial backgrounds. Six of the returned case studies are detailed in the article. The authors conclude that, while inter-race and inter±class restorative processes occur less frequently than might be predicted, the fact of these differences is not necessarily an impediment to success. However, numerous other factors, including language differences and transport difficulties, can limit the effectiveness of this method of resolution of criminal justice disputes.
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, Julia
The 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 relevant
Policy and practice in South African prisons: an update
(University of the Western Cape, 2005) Sloth-Nielsen, Julia
Julia 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.
South Africa, the arts and youth in conflict with the law
(Intellect, 2007) Sloth-Nielsen, Julia; Woodward, Sheila C.; Mathiti, Vuyisile
This paper describes the DIME (Diversion into Music Education) youth intervention program that originated in South Africa in 2001. DIME offers instruction in African marimba and djembe bands to juvenile offenders. Conceived as a community collaboration among organizations in the cities of Cape Town, SA and Tampa, USA (including the University of the Western Cape and the University of South Florida), DIME offers a unique example of community music and multicultural music education.
Surveying the research landscape to promote children's legal rights in an African context
(Juta Law, 2007) Sloth-Nielsen, Julia; Mezmur, Benyam Dawit
This article represents an initial attempt to identify research themes and topics of special relevance to the furtherance of children's rights in the African context in order to sharpen and strengthen our capacity to promote good practice and promising solutions. It surveys an array of possibilities for research to promote the implementation of children's rights in an African context. A number of theme areas are detailed, spanning from general legal reform processes and children's participation therein, to matters of social and economic policy in so far as they feed into the implementation and advancement of children's socio-economic rights. The article incorporates information from a number of different African jurisdictions, comparing and contrasting efforts at child reform in respect of children's rights.
A short history of time: charting the contribution of social development service delivery to enhance child justice 1996-2006
(University of Stellenbosch, 2007) Sloth-Nielsen, Julia
By charting the contribution of social development service delivery to enhance child justice in South Africa from 1996 to 2006, this article argues that the contribution of the social development sector to child justice has been substantial. It describes a range of developments in relation to assessment, diversion, pre-trial incarceration, the residential care system and probation. It is concluded that although the Child Justice Bill has not been finalised in the South African Parliament, social welfare services to children in trouble with the law have expanded to the extent that there has been a developmentally appropriate and more progressive child justice system.
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, Christopher
INTRODUCTION: 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 .
(Illicit) transfer by De Gree
(University of Western Cape, 2007) Sloth-Nielsen, Julia; Mezmur, Benyam Dawit
The 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.
2 + 2 = 5? Exploring the domestication of the CRC in South African jurisprudence (2002-2006)
(Brill Academic Publishers, 2008) Sloth-Nielsen, Julia; Mezmur, Benyam Dawit
South 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.
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, Julia
Law 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.
Win some, lose some: the 10th ordinary session of the African Committee of Experts on the Rights and Welfare of the Child
(Juta Law, 2008) Sloth-Nielsen, Julia; Mezmur, Benyam Dawit
The African Committee of Experts on the Rights and Welfare of the Child, the monitoring body of the African Charter on the Rights and Welfare of the Child, held its 10th ordinary session in October 2007. This discussion highlights the inertia of the Committee, exemplified by its failure to examine any of the state reports submitted to it. Some cause for optimism may be derived from the appointment of a permanent Secretary to the Committee.
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 Dawit
During 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.
A dutiful child: the implications of Article 31 of the African Children's Charter
(Cambridge University Press, 2008) Sloth-Nielsen, Julia; Mezmur, Benyam Dawit
Each 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.
Realising children's rights to legal representation and to be heard in judicial proceedings: an update
(Juta Law, 2008) Sloth-Nielsen, Julia
South Africa still has some way to go towards ensuring that children's rights to legal representation and to be heard are fully implemented in relation to judicial proceedings affecting them. Nonetheless, some emerging practices point to an ongoing expansion of the realisation of these rights. This article charts some key developments in law, policy and implementation that constitute such practices. The article also argues that apart from merely serving as the child's voice in the courtroom setting, effective child lawyering is additionally contingent on a commitment to seeking out children in need of services, on an emphasis more broadly on stakeholder relationships in the sector, and a willingness to adjust to changing circumstances.
Seen and heard: new frontiers in child participation in family law proceedings in South Africa
(Nelson R Mandela School of Law, University of Fort Hare, 2009) Sloth-Nielsen, Julia
This article examines the principle of child participation in a legal context, focusing first on the international and constitutional law framework, and thereafter on the principle as it has permeated the South African Children’s Act. Next, a brief examination of the application of the principle in practice and case law is provided, with the focus on family law and related proceedings. The concluding section of the article assesses the new challenges and potential changes posed by the increasing acceptance of the principle that children be allowed to express their views in matters affecting their interests in family law proceedings.
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 Dawit
The 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.
Inter-country adoption from a Southern and Eastern African perspective
(Washington & Lee Law School, Virginia, 2010) Sloth-Nielsen, Julia; Mezmur, Benyam Dawit; Van Heerden, Belinda
This 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.
Relocation decisions: do culture, language and religion matter in the rainbow nation?
(Centre for Family Law and Practice, London Metropolitan University, 2010) Albertus, Latiefa; Sloth-Nielsen, Julia
This article turns to culture, language and religion as constitutional constructs in South Africa, in an attempt to clarify their importance generally. The position prior to the Children’s Act is discussed. The article reviews available case material, and legal criteria and practical trends are drawn from this. The threads drawn from this are pulled together to provide some insight into contemporary judicial views in South Africa on the influence of culture, language and religion in the field of relocation disputes.

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