Research Articles (Private Law)

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Browsing Research Articles (Private Law) by Author "Mills, Lize"

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    Certainty about surrogacy
    (Juta Law Publishing, 2010-09) Mills, Lize
    Summary: With the recent coming into operation of Chapter 19 of the Children’s Act 38 of 2005 on 1 April 2010, the previous legal position relating to surrogacy has been completely altered. Prior to the commencement of these provisions of the Act, commissioning persons in a surrogacy relationship had to adopt the artificially conceived child in terms of the Child Care Act 74 of 1983. In June 2009, at a time when the Child Care Act was still in force, the North Gauteng High Court found, inter alia, that the adoption procedure may be ignored and that the commissioning parents will automatically be regarded as the child’s parents. The Court provided no reasons for its decision. Since the most important question in a legal, moral, religious and philosophical issue such as surrogacy is to determine the parental responsibilities and rights of the parties involved, it was of the utmost importance that the previous unsatisfactory and confusing position be clarified. This note aims to explain the background to the Court’s order and to evaluate the decision in view of the legal position applicable at the time. It also discusses the possible implications of this order as well as the certainty which the amendments to the law, in terms of Chapter 19 of the Children’s Act, will hopefully bring.
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    Computer Says No : enforcing divorce upon persons who changed their sex in Europe and South Africa
    (Northumbria University Library, 2020) Mills, Lize
    As is the case with marriage, divorce should be entered into freely and voluntarily. The State should not demand that a marriage be ended if neither one of the spouses wishes for it to be terminated. Yet, several countries still impose such an obligation in instances where one or both of the parties to the marriage changed their sex during the existence of the marriage, in order for such a person to attain legal recognition of the sex change. This article analyses some of the case law in Europe and South Africa where the courts have had to intercede in instances in which differential treatment was being justified in the name of so-called pragmatism. It examines some of the possible reasons for imposing this obligation upon married couples and the effect that this requirement has on their lives. Furthermore, it explores why it is incorrect to require the termination of marriage after a change of sex, how genderism and transphobia has caused differential and discriminatory treatment of transsexual persons, and how institutional bias and a lack of appreciation for the lived reality of people who do not necessarily fit into categories of generated systems, continue to negate the human rights of some humans.
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    Failing children : the courts disregard of the best interests of the child in Le Roux v Dey
    (Juta Law, 2014-01) Mills, Lize
    The concept of the best interests of the child is firmly entrenched in international law, the South African Constitution and South African legislation and jurisprudence. The Committee on the Rights of the Child has recently declared that it is a threefold concept existing as a substantive right, a fundamental interpretative legal principle, and as a rule of procedure. The best interests of the child should be considered, at least, in all matters concerning children. Yet, in the matter of Le Roux v Dey, where three boys were defending a delictual claim of defaming their school vice-principal, the judges of the High Court and the Supreme Court of Appeal, and eight of the ten presiding judges of the Constitutional Court did not even mention the best interests of the child. The article explores some of the possible reasons for this failure and offers some recommendations as to what a more preferable approach would have been in the circumstances.
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    The immeasurable wrongfulness of being : the denial of the claim for wrongful life
    (Juta Law Publishing, 2010-02) Human, Sonia; Mills, Lize
    In Friedman v Glicksman 1996 1 SA 1134 (W) the claim for wrongful life was denied. Eleven years later the Cape High Court again denied the existence of the claim in Stewart v Botha 2007 6 SA 247 (C); 2007 9 BCLR 1012; 2007 3 All SA 440 albeit for different reasons than those used by the Court in Friedman. The Supreme Court of Appeal had the opportunity to provide well-reasoned answers to the many questions resulting from the two conflicting decisions and to finally put to rest the matter of whether the action should be recognised in South African law or not. Unfortunately it failed to do so. This article discusses the recent South African and international case law which considered the action, placing emphasis on the policy issues underlying the claim. In light of the constitutional dispensation and the promulgation of the Children's Act 38 of 2005, it is argued that the opportunity now exists to reconcile the principles of delict with the constitutionally enshrined rights of the child to ensure that the best interests of the child are served.
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    The regulations relating to foodstuffs for infants and young children (R 991) : a formula for the promotion of breastfeeding or censorship of commercial speech?
    (North-West University, Faculty of Law, 2014) Mills, Lize
    The regulation of commercial speech in the interests of public health is an issue which recently has become the topic of numerous debates. Two examples of such governmental regulation are the subjects of discussion in this article, namely the prohibition on the advertising and promotion of tobacco products, as well as the proposed prohibition on the advertising and promotion of infant formulae and other foods and products marketed as being suitable for infants or young children. The article seek to evaluate the recently proposed regulations published in terms of the Foodstuffs, Cosmetics and Disinfectants Act in the light of the reasoning by the Supreme Court of Appeal in the British American Tobacco South Africa (Pty) Limited v Minister of Health 463/2011) [2012] ZASCA 107 (20 June 2012) decision, and in particular in terms of the section 36 test of reasonableness and proportionality found in the Constitution of the Republic of South Africa, 1996. It argues that, although the South African Department of Health must be applauded for its attempt at improving public health in the country, some of the provisions of the proposed regulations are not constitutionally sound. It will be contended that, despite the fact that the promotion of breastfeeding is a laudable goal, the introduction only of measures which restrict the right to advertise these types of products will not necessarily achieve this objective.