Department of Public Law

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Browsing Department of Public Law by browse.metadata.advisor "Human, C. S."

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    The child's right against exploitation in the form of pornography on the Internet : a South African perspective
    (Stellenbosch : Stellenbosch University, 2001) Van der Westhuizen, Lize; Human, C. S.; Stellenbosch University. Faculty of Law. Dept. of Public Law .
    ENGLISH ABSTRACT: With the arrival of the Internet, the availability of pornography, and especially child pornography, has increased tremendously. This rapidly developing technological wonderworld has brought the dark syndicate of sexual exploitation of children to the living room of each home equipped with a computer. In South Africa the right of the child to not be sexually exploited or abused is enshrined in section 28 of the Constitution, 108 of 1996, as well as in several international documents. This thesis analyses the legislative framework in this regard and comes to the conclusion that South African legislation concerned shows much room for improvement. Legislation concerning sexual offences against children makes use of archaic terms that are outdated in the present context. It is also vague, inconsistent and provides insufficient protection to children in this regard. The sexual exploitation of children does not, despite promises made by the South African government in ratifying several international documents, receive high priority in the South African community. This finding is made in view of the examination of certain key concepts to the subject, international documents such as the United Nations Convention to the Rights of the Child, 1989, and the activities of international organisations combating the sexual exploitation of the child. An analysis of the manner in which countries such as the United States of America, Canada, the United Kingdom, Germany and Japan has implemented protection measures against this form of abuse, is also made. Proposals to increase the protection of children in South Africa are submitted in conclusion. Although this new domain needs urgent measures of regulation, it is not an impossible task to govern the Internet. Formulating comprehensive, consistent and effective legislation is a fundamental part in the battle against the sexual exploitation of children. The co-operation of all relevant sectors, including the government, the Internet industry and members of the community, however, remains essential.
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    Statutere regulering van surrogaatmoederskap : 'n kritiese ontleding van relevante oorwegings
    (Stellenbosch : Stellenbosch University, 2000-12) Els, Ronel; Human, C. S.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The aim of this study is to investigate the possibility of regulating surrogacy in the light of the existing legal position and the relevant moral aspects. It is now medically possible for one woman to bear a child, which is not genetically related to her, on behalf of another person. Currently the law makes no specific provision for the regulation of surrogate motherhood. The key problem in this regard is that the existing law is applicable to surrogate motherhood, inter alia because surrogacy is brought about by artificial insemination and because the intended parents can only acquire parental authority by way of adoption. The final recommendation is a Surrogacy Act for South Africa. The thesis is divided into three parts. The first part is an analysis of the relevant moral and social aspects relating to surrogacy in order to justify the above-mentioned act morally. Commercial surrogacy, the genetic tie between parent and child, the differences between surrogacy and adoption, the question as to who is a parent and surrogacy for convenience are analysed. Despite all the arguments that can be made in favour of or against these moral issues in a vacuum, these arguments will be irrelevant in cases where the child is already born. In such a case the only relevant concern will be what is in the child's best interest. In the second part of the thesis the existing legal position is analysed. This includes an examination of the applicable legislation, the impact of the Constitution, the South African Law Commission's proposed bill on surrogate motherhood and the customary law. Although the relevant legislation does not specifically provide for surrogacy, it remains applicable. This is extremely problematic for the parties involved. The Bill of Rights is applicable to all law and binds the Legislature. Therefore the main principles of the Constitution will have to be embodied in the proposed regulatory Act. Although the Law Commission's proposed bill is a well formulated document, one shortcoming that has been identified is that it is not constitutionally justifiable. The customary law has several practices which are analogous to surrogacy. The right to culture, which is entrenched in the Constitution, has the effect that these practices cannot be outlawed. However, should it not be consistent with the Constitution, it can be held to be invalid. The conclusion which is reached is that surrogacy can be morally and constitutionally justifiable if it is regulated properly. It is therefore proposed that an Act be formulated to regulate these relevant issues. Such a proposed Act is included in part three of the thesis.