Department of Public Law and Jurisprudence

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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.
Addressing climate change through international human rights law: From (extra) territoriality to common concern of humankind
(Cambridge University Press, 2022) Bellinkx, Vincent; Casalin, Deborah; Scholtz, Werner
International human rights law (IHRL) offers potential responses to the consequences of climate change. However, the focus of IHRL on territorial jurisdiction and the causation-based allocation of obligations does not match the global nature of climate change impacts and their indirect causation. The primary aim of this article is to respond to the jurisdictional challenge of IHRL in the context of climate change, including its indirect, slow-onset consequences such as climate change migration. It does so by suggesting a departure from(extra)territoriality and an embrace of global international cooperation obligations in IHRL.
Addressing the limits of autonomy: Origin, organization and purpose of horizontal intergovernmental forums in three federations
(Centro Studi sul Federalismo, 2020) Fessha, Yonatan
Horizontal intergovernmental forums that bring together the constituent units of a federation are increasingly common. This article examines the origin, organization and purpose of the premium horizontal intergovernmental forums in Kenya, Spain and Canada. The constitutional origin of institutions of horizontal intergovernmental relations is uncommon. The experience of the three political forums confirm the view that institutionalization of intergovernmental relations may not be a necessary condition for effective intergovernmental relations. Yet, in countries with no history of multilevel governance or a culture of cross-boundary interaction, institutionalization might give horizontal intergovernmental relation the prompt it needs.
Book Review: The Future of African Customary Law
(University of the Western Cape, 2022) Moosa, Najma
In the abstract of "The Future of African Customary Law" the editors state that it …is intended to promote discussion and understanding of customary law and to explore its continued relevance in sub-Saharan Africa…[It] considers the characteristics of customary law and efforts to ascertain and codify customary law, and how this body of law differs in content, form, and status from legislation and common law. It also addresses a number of substantive areas of customary law including the role and power of traditional authorities; customary criminal law; customary land tenure, property rights and intestate succession; and the relationship between customary law, human rights and gender equality.
Child soldiers and the defence of duress under International Criminal Law
(Routledge, 2021) Nortje, Windell; Quénivet, Noëlle; Macmillan, Palgrave
Atrocities committed by children are frequently explained away by arguments of coercion: children are forced by commanders to participate in acts of extreme violence, threatened with brutal punishment if they fail to comply. Indeed, in the limited cases where children or former child soldiers have come before courts, duress has often been raised as a key defence. In my own research on child perpetrators of genocide in Rwanda,1 ‘irresistible constraint’, as it was worded in the Rwandan legislation, was frequently invoked by defendants; in the very first juvenile case before the Rwandan courts, the 16-year-old defendant argued that he had been forced to kill his four nephews to save his own life. His plea was accepted in part – as a mitigating factor rather than complete defence. Duress was one of the defences raised by Dominic Ongwen before the International Criminal Court. Whilst being prosecuted for crimes committed as an adult, Ongwen had been forcibly conscripted into the Lord’s Resistance Army in Uganda around the age of 9 or 10.2 And duress has played in important role in refugee exclusion proceedings, with child soldiers arguing that they were coerced into committing crimes when seeking to negate individual criminal responsibility as a ground for exclusion.
Climate adaptation planning for resilient and sustainable cities: Perspectives from the City of Rotterdam (Netherlands) and the City of Antwerp (Belgium)
(Cambridge University Press, 2022) Berg, Angela van der
Climate adaptation planning in pursuit of resilient and sustainable societies has become a focal point in urban policy. Climate adaptation planning is generally regarded as separate from traditional urban planning practices. Globally and in Europe, however, cities are increasingly integrating climate adaptation planning into their traditional urban planning instruments and processes. Recent research indicates that the scope of such integration is at varying stages. The City of Rotterdam (Netherlands) and the City of Antwerp (Belgium) have been identified as two European cities that face similar climate impacts and risks given their proximity to a large river delta. Both cities aim to integrate climate adaptation into their respective urban planning policies, but the scope of their integration differs.
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, Julia
The 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.
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.
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, Julia
Commencing 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.
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.
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.
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.
The environment and the Sustainable Development Goals: ‘We are on a road to nowhere
(Edward Elgar, 2018) Scholtz, Werner; Barnard, Michelle
The 17 Sustainable Development Goals (SDGs) collectively embody the global stance on the economic, social and environmental actions needed to achieve sustainable development. With reference to the environmental component of the SDG framework, one sees that four distinct Goals pertaining to different elements of planet earth, namely: the atmosphere (SDG 13), water resource – both fresh (SDG 6) and marine (SDG 14), as well as biodiversity (SDG 15) are included. The deconstruction of the environment in this way is strongly criticized by some as a step back from the single Millennium Development Goal (MDG) dealing with environmental sustainability (MDG 7) contained in the Millennium Declaration, 2000. The current approach to achieving sustainable development is now fragmented along the lines of the above-mentioned silo-ist division. Another point of criticism against the SDGs framework is the lack of explicit reference to international legal instruments pertaining to individual SDGs. This general critique is to some extent also true of the specific environmental SDGs where we see little cross-referencing to international environmental law that could provide a more solid legal base for the enforcement of the SDGs – which are legally non-binding. It is, however, possible to read in implicit references to a number of international environmental law instruments when analysing the wording of the Targets which underpin the individual environmental SDGs. In this chapter the legal nature of the SDGs, the fragmentation of the environment and the potential role of binding international law in solidifying the legal nature of the 2030 Agenda will be discussed in order to answer the question we pose in the title: the environment and the SDGs – are we on a road to nowhere?
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, Julia
This 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.
The functus officio doctrine and invalid administrative acts in South African administrative law: the demand for a more flexible approach
(Nelson R Mandela School of Law, 2020) Henrico, Radley
In South African administrative law, the issue of invalid administrative action in relation to the application of the doctrine of functus officio has brooked a fair amount of debate. Whilst the courts have attempted to articulate an appropriate approach to be adopted regarding the variation or revocation of invalid administrative action, the issue remains one that is often fraught with a degree of uncertainty. A decision once made by an administrator, which is final, cannot be revisited in the absence of statutory authority.
Horizontality and housing rights protection against private evictions from a European and South African perspective
(Brill Academic Publishers, 2022) Fick, Sarah; Vols, Michel
In the recent decision of fjm v. the United Kingdom, the ECtHR made a decision on the required protection against private evictions that threatens to water-down the protection of housing rights offered by the echr. This article sets out to determine the effect of the fjm judgment on the protection provided by Article 8, especially in matters concerning private evictions. The analysis of the case includes a discussion on whether the decision of the ECtHR was correct, considering both its previous decisions, as well as the sa Constitutional Court’s findings in similar matters. It analyses the recent European and South African case law with the help of a number of concepts developed in legal theory. These concepts concern vertical and horizontal relations between actors involved in housing law cases, as well as direct and indirect effect of human and constitutional rights.
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.
(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.
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 .
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.

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