Faculty of Law

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https://hdl.handle.net/10566/25

The Faculty of Law's principal research focus areas include human rights, local government law, criminal justice and prisons, and labour law.

Electronic theses and dissertations are available in the Electronic Theses and Dissertations Repository.

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Abortion and the right to life: A case study of South Africa and Germany
(University of the Western Cape, 2016) Zimmer, Martina; Mezmur, Benyam Dawit; Machaya, Musavengana
The issue of abortion and the protection of the right to life have been discussed by many academics, yet remains an unresolved topic in many countries. The mere fact that abortion is the deliberate termination of a human pregnancy raises the question, whether or not such an act violates the right to life. Abortion has been legalised in South Africa and Germany. This study explores the area of abortion vis a viz the obligation of South Africa and German under the international and regional human rights instruments to protect the right to life. Notably, the right to life is protected under a plethora of international and regional human rights instruments. At international level, the right to life is protected under Article 3 of the Universal declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights. At regional level of the right to life is protected by Article 2 of the European Convention on Human Rights and Article 4 of the African Charter on Human and Peoples� Rights. To give a broad understanding of the meaning, nature and content of the right to life, this mini-thesis shall critically analyse the words used under the above Articles which protect the right to life. Then the paper will endeavour on its main objective which is to determine whether or not the legalisation of Abortion in South Africa and Germany violates the right to life?
An analysis of professor Lourens du Plessis’ early (pro-life) and later (prochoice) perspectives on abortion
(Nelson Mandela University, 2016) Moosa, Najma
Abortion, or termination of pregnancy, albeit in gradations from most to less restrictive to unrestricted, has always been legally allowed in South Africa. This questions the need for the introduction of new law. Legalisation of abortion has reduced abortion to a form of failed contraception. Illegal abortions motivated new law, as well as research, Professor Lourens Marthinus du Plessis’ 1 constitutional argument favouring women’s (reproductive) right to abortion. Yet, illegal abortions continue as before democracy when the seemingly Christian, racially-motivated law, was flouted by white and black women alike. The Constitution adopts a neutral position on the right to life, but is decidedly pro-abortion. This does not imply that a constitutional challenge, which has yet to occur, seeking to amend the current status quo and to provide protection to an unborn, may be an exercise in futility. This article is written in honour of, and analyses the role and early “pro-life” views of the now retired Du Plessis as a white Afrikaner male, husband, father and proud grandfather, schooled in a traditional, conservative strand of Christianity, and as an anti-apartheid constitutional lawyer and drafter – to determine whether his liberal political views are compatible with his moral views and whether they may have since changed.
Deliberate delays in offering abortion to pregnant women with fetal anomalies after 24 weeks' gestation at a centre in South Africa
(Wiley, 2023) Kleinsmidt, Anita; Malope, Malebo; Urban, Michael
South Africa has an abortion law which codifies the broad themes of reproductiverights set out in the Constitution of South Africa, other laws and national guidelines.Certain wording of the conditions in the Choice Act for abortion after 20 weeks'gestation, are open to interpretation, being‘severe malformation of the fetus’and‘risk of injury to the fetus’. From 24 weeks onwards, abortion is carried out byfeticide/induced fetal cardiac asystole (‘IFCA’) and subsequent induction of labour inSouth Africa. Some maternal‐fetal units have developed guidelines to assist cliniciansand patients in decision‐making around eligibility for abortion after 20 weeks'gestation, given the broad terms in the law. We consider the guideline used by aninstitution in the Western Cape for abortion after 23 weeks and 6 days gestation, interms of its alignment with the law on reproductive rights and its compliance withfair and transparent procedures. We also note its effect on respect for patients andon staff professionalism.
A descriptive analysis of South African and Islamic abortion legislation and local Muslim community responses
(Yozmot Heiliger Ltd, 2002) Moosa, Najma
The issue of abortion has been the subject of much debate in the recent past in South Africa. Prior to 1996 abortion legislation was punitive and therefore one with which conservative Muslims could identify. Since 1996 the law has been liberalized and replaced by a new Act. The final Constitution (1996) took a neutral stance regarding abortion. The enactment of the Choice on Termination on Pregnancy Act (1996) finally ensured this right. The Act, a critical milestone for gender equality, secured all South African women (including minors) the right to make decisions about reproduction and according to their individual beliefs
International human rights norms and the South African choice on termination of pregnancy act: an argument for vigilance and modernisation
(South African Journal on Human Rights, 2019-04) Ebenezer, Durojaye; Lucia Berro, Pizzarossa
The right to access abortion services as an integral component of the right to sexual and reproductive health (SRH) has been increasingly recognised in the field of international human rights law. However, much more progress is necessary to realise this right in practice. The work of the United Nations human rights bodies and more recently the African Commission on Human and Peoples’ Rights has been instrumental in signalling the importance of the legal framework and in setting clear guidelines to steer countries into reforming national laws in order to comply with their international obligations. This article explores the extent to which the Choice on Termination of Pregnancy and the amendment Bill submitted by the African Christian Democratic Party comply with International Human Rights Norms. Our analysis reveals that (i) the South African state has fallen short in adopting a legal framework that complies with the International Human Rights Norms and (ii) the proposed bill would constitute a retrogressive measure and its adoption would violate the state’s obligations under international human rights law. In sum, this article makes an argument for the modernisation of the South African abortion law and for careful vigilance of the proposed legislative amendments.
Law and justice at the dawn of the 21st century: Essays in honour of Lovell Derek Fernandez
(University of the Western Cape, 2016) Martin, Bernard; Koen, Raymond
Essays in honour of Lovell Derek Fernandez, Lawyer, Linguist, Mensch
Mainstreaming the ‘Abortion question’ into the right to health in Uganda
(Dullah Omar Institute, 2021) Nanima, Robert Doya
The right to health is a social and economic right that requires progressive realisation by states (Chenwi 2013). Although Uganda’s Constitution does not provide for the right to health, the country is a signatory to the International Covenant on Economic, Social and Cultural Rights (UN General Assembly 1966). The Constitution contains other social and economic rights, such as the right to education, but the lack of the right to health has prompted several recommendations by the Committee on Economic, Social and Cultural Rights’ (CESCR) that Uganda take legislative and other measures to ratify and apply the rights in the ICESCR.
Restorative justice as postmodern justice: exegesis and critique
(University of the Western Cape, 2016) Koen, Raymond
This essay explores the relationship between postmodernism and RJ. Postmodernism quickly outgrew its non-legal origins and has extended its reach to incorporate matters legal. Already, it has established a significant presence in the law, as increasing numbers of legal theorists have adopted or included a postmodern perspective in their analytical endeavours. The particular concern of the essay is with the impact of postmodernism upon the field of criminal justice. In this connection, it is submitted that RJ is the exemplification of the postmodern attitude in criminal justice. This submission is grounded in an investigation of the interrelations between postmodernism and RJ in six spheres, namely, the state, history, alterity, power, subjectivity and consumerism. This investigation shows that in each sphere there is a discernible and compelling postmodern flavour to the RJ tenet in question. In consequence, it is posited that the intersection between postmodernism and RJ is significant enough to justify the proposition that if there is a postmodern criminal justice it is RJ. In other words, RJ is postmodern justice. However, the relationship between postmodernism and RJ is steeped in contradiction. The latter part of the essay seeks to probe this contradiction, via an exposition and critique of the political economies of postmodernism and RJ, with a view to comprehending its implications for the future of RJ.

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