Browsing by Author "Mills, Lize"
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- ItemCertainty about surrogacy(Juta Law Publishing, 2010-09) Mills, LizeSummary: 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.
- ItemComputer Says No : enforcing divorce upon persons who changed their sex in Europe and South Africa(Northumbria University Library, 2020) Mills, LizeAs 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.
- ItemConsidering the best interests of the child when marketing food to children: an analysis of the South African regulatory framework(Stellenbosch : Stellenbosch University, 2016-12) Mills, Lize; Human, C. S.; Stellenbosch University. Faculty of Law. Dept. of Private LawENGLISH ABSTRACT : This thesis seeks to establish whether the South African government fulfils its international and constitutional obligations by applying the standard of the best interests of the child when food-marketing practices to children are employed. According to the World Health Organisation, overweight and obesity ranks as the fifth leading risk for death globally. It is therefore of particular concern to note that the WHO reports that in 2013 more than 42 million children under the age of five were overweight or obese. Although the reasons for the tremendous increase in global obesity rates can be complex and a number of factors contribute to the associated rise in noncommunicable diseases, research has shown that the heavy marketing of fast food and energy-dense, micronutrient-poor foods and beverages is a probable causal factor in weight gain and obesity. It has been established and accepted that there is a relationship between the marketing of food and children’s dietary choices and consumption. Moreover, studies from all over the world show that the foods which are most often marketed to children, are foods which are nutritionally poor and which contain high levels of salt, sugar and fat. Consequently, the WHO and other bodies have called for a restriction to be placed on the marketing of nutritionally poor foods to children. This thesis entails a discussion and an analysis of South Africa’s response to this call. It describes and assesses this country’s regulatory efforts regarding the marketing of food to children, comparing it to standards set by both international law and methods of regulation in other jurisdictions. The aim of the thesis is to assess the implementation of South Africa’s international and constitutional obligations in this respect, focussing in particular on the duty to regard the best interests of children as a matter of paramount importance and primary concern. The concept of the best interests of the child has been firmly entrenched in international law, the South African Constitution and South African legislation and jurisprudence. Since the Committee on the Rights of the Child has confirmed that the best interests of the child is a substantive right of itself, while also being a rule of procedure and a method of interpretation, it is also true that the implementation of this right may have an effect on other fundamental rights and freedoms. The thesis provides some suggestions as to how to achieve a proportional balance between the best interests of the child and the rights of the food and media industries, and of parents in South Africa, whilst bearing in mind that children’s interests are more important than anything else.
- ItemFailing children : the courts disregard of the best interests of the child in Le Roux v Dey(Juta Law, 2014-01) Mills, LizeThe 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.
- ItemThe immeasurable wrongfulness of being : the denial of the claim for wrongful life(Juta Law Publishing, 2010-02) Human, Sonia; Mills, LizeIn 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.
- ItemThe 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, LizeThe 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.
- ItemThat time of the month : discrimination against girl children who cannot afford sanitary health care(2019) Mills, Lize; Howe, ComineThe majority of women, and only women, experience a biological reality approximately every 28 days. Menstruation is a nightmare for some, but particularly for the group of indigent women and adolescent girls who cannot afford sanitary health care products that will enable them to manage their period effectively. These monthly necessities for women are also subject to Value Added Tax in South Africa, adding an additional 15 percent to the price. This lack of access to adequate sanitary wear affects only females, and it affects their rights significantly. Not only does it violate girl children’s dignity and self-worth, but exacerbates the feminisation of poverty by infringing their right to education and health and negatively affects the realisation of gender equality. This chapter examines this instance of discrimination against girls by describing the failure of the South African government to consider the best interests of girl children in this specific respect.