Department of Private Law
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Browsing Department of Private Law by browse.metadata.advisor "Human, Sonia"
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- ItemThe child's rights to, in and through basic education : an analysis of South Africa's international obligations(Stellenbosch : Stellenbosch University, 2021-03) Strohwald, Annemarie; Human, Sonia; Horsten, Debbie; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: The child’s right to basic education is of utmost importance as it not only prepares but enables them to participate in society. The child’s right to basic education also enables the realisation of other human rights and provides the opportunity to rise above one’s circumstances. This dissertation centres on South Africa’s international obligations in relation to the child’s rights to, in and through basic education and whether or not these obligations have been fulfilled. Specific focus is placed on the obligations created by the Convention on the Rights of the Child (“CRC”) as it is regarded as the foundation of international law on the rights of the child and still remains one of the most widely ratified human rights treaties. Additional obligations created by the International Bill of Human Rights and the African Charter on the Rights and Welfare of the Child are also examined in the dissertation. In order to measure whether or not these international obligations have been fulfilled, the model for compliance is introduced. The model embraces a child-centred approach in the two frameworks that make up the model: the normative framework and the practical framework. The normative framework is founded on articles 28 and 29 of the CRC and the practical framework is based on the 4-A scheme. The dissertation proves that the value of the normative and practical frameworks is that while they are complementary and form the model for compliance, they are also essential frameworks independently. Both frameworks are essential components in order to measure international obligations as states must be normatively strong in their recognition and protection of the child’s right to basic education, but it also requires implementation. With the model for compliance clearly established, it is then applied in India and Nigeria in order to gain a comparative perspective. Attention is paid to constitutional and legislative frameworks as well as relevant case law in these two jurisdictions. India and Nigeria’s periodic reports to the CRC Committee and the ACERWC also form part of the analysis and indicate that the concerns identified by these two committees are not only passing comments but should be dealt with in order to meet international obligations and ultimately result in the realisation of the child’s right to education. ivWith the application of the model for compliance in the South African context, it is quite clear that the constitutional framework is unfortunately not mirrored by our current reality. While positive steps have been taken to align legislation and policy with the international standards of the normative framework, the implementation thereof remains a major challenge. The dissertation concludes with final reflections and recommendations on South Africa’s international obligations. The model for compliance as proposed in the dissertation is valuable as it incorporates a normative and practical framework that provides content to dimensions of the right to basic education. Striking a balance in the realisation and interpretation of children’s rights is very important, and the model for compliance attempts to find this balance.
- ItemA child’s right to basic education during the Covid-19 pandemic : a comparative analysis and evaluation of the impact of Covid-19 on the South African education system, and the effectiveness of the nation’s legal response in protecting a child’s right to education(Stellenbosch : Stellenbosch University, 2023-03) Padachey, Denisha; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH SUMMARY : It has long been accepted that a child’s right to education is of vital importance as it not only enables them to participate and function in society but enables the realisation of their human rights and fundamental freedoms. Since the onset of the Covid-19 pandemic, the education sector faced numerous disruptions and learners were prevented from physically accessing their schools. The Covid-19 pandemic and the ways in which jurisdictions were forced to respond had and continues to have severe impacts in terms of the existing and new forms of inequalities in relation to children and their right to education. The focus of this thesis is therefore a child’s right to basic education in light of the Covid-19 pandemic, with specific reference to the South African situation. This research thus aims to identify whether the legal responses in terms of the legislation, policies, regulations and mechanisms which have been introduced and implemented in South Africa during the Covid-19 pandemic, protected a child’s right to education or hindered the realisation a child’s right to education. It is argued that a one-size fits all solution cannot apply in situations of emergency such as the Covid-19 pandemic. This thesis therefore unpacks each respective nations obligations in respect of the right to education, as well as the status of education and educational attainment in each jurisdiction prior to the outbreak of the Covid-19 pandemic. Moreover, in order to determine how a child’s right to education has been impacted and whether the legal responses introduced were effective and protected a child’s right to education, this thesis shall make use of a comparative analysis approach wherein the situation in South Africa shall be compared to that of the United States of America, the United Kingdom, Italy and Nigeria. This will be done by analysing the legal responses of each jurisdiction utilising the 4 ‘A’ approach, and taking into consideration their national, regional and international obligations in respect of a child’s right to education. This research further explores whether the legal responses and mechanisms implemented in other jurisdictions are flexible and whether they can be successfully implemented in South Africa. Finally this thesis sets out recommendations in order to respond to the challenges which arose and continue to arise in education due to the Covid-19 pandemic and the subsequent legal responses.
- ItemThe impact of forensic DNA profiling on gender privacy(Stellenbosch : Stellenbosch University, 2022-12) Lynch, Vanessa; Human, Sonia; Heathfield, L. J.; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: Forensic DNA profiling used in conjunction with a DNA database is considered a powerful tool in the fight against crime borne out of its ability to link serial offenders, identify who was present on a crime scene, exonerate the innocent as well as match human remains to missing persons. Identification is achieved by the statistical matching of an “unknown” forensic DNA profile to that of a known reference sample, and not on any physical information that can potentially be derived from the DNA. It is questionable then, why the legal definition of a forensic DNA profile states that no physical, medical, or behavioural information may be derived therefrom other than the sex of that person. This study therefore investigates whether biological sex should be considered private information and if the disclosure of the sex in a forensic DNA profile infringes on gender privacy. This was done by examining the purpose of a biological sex marker in forensic casework, interrogating the development and contents of the Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 (the “DNA Act”), exploring the concept of gender privacy and how it relates to the DNA Act, the Constitution of the Republic of South Africa, 1996 (the “Constitution”) and human rights (and the balance thereof in criminal cases), as well as comparing these factors to international human rights instruments and legal systems in other countries. A key finding of this study is that the concept of gender privacy has not been formally defined in national or international law, thus a definition thereof is proposed. It further emerged that there is limited legal and scientific regard for the differences between gender identity and biological sex, as these terms are often used interchangeably. This research accordingly highlights the critical need to use these terms accurately in the forensic setting. This study shows that the knowledge of an individual’s biological sex is not always necessary in forensic criminal cases and argues that disclosing the sex in forensic DNA profiling reports may infringe on that individual's right to gender privacy. It suggests that the protection of a person's gender privacy could be achieved without recourse to the disclosure of the sex of a person in forensic DNA reports, unless in specific (limited) instances when it is necessary for the promotion of justice. This novel revelation has a global impact insofar as re-conceptualising the difference between gender identity and biological sex in the context of forensic science and promotes a deeper understanding of how these scientific, legal and social concepts are so intricately related. Changes to legislation are recommended to provide vulnerable minorities with a right to gender privacy, as an extended right to privacy in the Constitution.
- ItemKompleksiteit en bemiddeling: ʼn Model vir die ontwerp van gepaste regulering(Stellenbosch : Stellenbosch University, 2017-12) Spruyt, Wynand Max Alexander; Human, Sonia; Stellenbosch University. Faculty of Law. Department of Private Law.ENGLISH ABSTRACT : The purpose of this study is to design a theoretical model of mediation that can be utilised to analyse the impact of regulation on the mediation process – and specifically the impact on the diversity that is said to characterise it. Although mediation is inherently a private and informal dispute resolution process, it is increasingly subjected to prescriptive and formal regulatory requirements. Regulation inevitably results in tension between the informal nature of mediation and the rigidity, formality and prescriptive nature of regulation. This tension is generally known as the diversity-consistency dilemma. The dilemma implies that a proper analysis of the impact of regulation is required to ensure that the appropriate and effective regulation of mediation does not occur at the cost of the inherent nature and features of the mediation process. The argument put forward in this study is that the mediation process can be modelled as a complex social system. The singular character and unique qualities of this system – and specifically the complex interaction taking place within it – distinguishes mediation from other forms of dispute resolution. This complexity model of mediation therefore allows for an analysis of the impact that regulation has on the most fundamental qualities of the mediation process. A complexity model furthermore allows for the analysis of diversity, as a quality of the mediation process, from a unique and novel perspective. Diversity in mediation is typically equated to the procedural flexibility, informality and multi-functionality that is generally associated with mediation. However, a systems analysis shows that diversity is a product of the complex interactions taking place during mediation. Diversity is therefore an inherent and fundamental attribute of the mediation process. This research consequently succeeds in giving actual content and meaning to the concept of diversity in mediation. This content makes it possible to determine with certainty what the diversity-consistency dilemma truly implies for the appropriate and effective regulation of mediation. These implications are consequently examined for each of the three most general forms of regulation in the context of mediation, namely triggering laws, procedural regulation and standardising mechanism. This examination finds that the design and implementation of regulations are often based on theoretically unsound assumptions. These mechanisms are therefore often not optimally effective, and unnecessarily exacerbate the tension represented by the diversity-consistency dilemma. The purpose of this study is therefore to lastly also provide new perspectives on the regulation of mediation. These new perspectives prove that a complexity model of mediation – as well as the unique paradigm of complexity that it permits – enables the design and implementation of effective, appropriate, fair and theoretically sound forms of regulation that will ultimately ensure and support the use of mediation. Thereby actual and legitimate requirements for standardisation and consistency can be achieved without unduly restricting the diversity that fundamentally characterises the mediation process.
- ItemRealising children’s right to participation during the divorce proceedings of parents(Stellenbosch : Stellenbosch University, 2021-12) Prinsloo, Marli; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: To a child, the divorce of his or her parents is a traumatic and life-altering event. The divorce of parents and the proceedings related thereto have the potential to determine how various aspects of a child’s life, such as where they will live and go to school or how often they will have contact with the parent with whom they do not live, will develop. Based hereupon it is safe to say that a child’s parents’ divorce and related proceedings can greatly affect a child. In terms of article 12 of the United Nations Convention on the Rights of the Child, article 4(2) of the African Charter of the Rights and Welfare of the Child as well as sections 10 and 31(1) of the Children’s Act 38 of 2005, a child, who is capable to do so, has the right to participate in matters that affect him or her by sharing his or her views and having these views considered. Despite having a clear and well-established right to participate in a matter that so deeply affects them, a child’s right to participate in their parents’ divorce related proceedings is often not realised. This thesis will evaluate the various methods of representation and direct participation employed to give effect to the child’s right to participation to determine to what extent the child’s right to participation is being realised or not realised. It is generally accepted that litigation is not the ideal way in which to resolve divorce and related proceedings, especially when children are involved. This thesis attempts to determine whether family mediation as model is better suited to realise a child’s right to participation in this particular context. It does so be placing family mediation as a model in contrast with the traditional legal processes that go hand in hand with divorce related litigation. To achieve the abovementioned, a model of measuring children’s participation is proposed. The proposed model highlights the shortcomings as well as the positive aspects of the various methods of children’s participation in South Africa. This exercise is repeated in the context of Australian divorce related proceedings in an attempt to compare and contrast the two jurisdictions. Finally, the model is also employed to measure mediation as a model to realise a child’s right to participation, in aid of determining whether mediation as a model is better suited to realise a child’s right to participation in his or her parents’ divorce related matters.