Helen Kruuse

A maturing manifesto: The constitutionalisation of children’s rights in South African jurisprudence 2007-2012

This article represents the next in a series of five-year overviews of children’s rights in the courts in South Africa. Using the Convention on the Rights of the Child and the African Charter on the Welfare of Children as a point of departure, the study suggests that it is in the public sphere that children’s rights have had their most impact in the period under review. The article highlights eight areas of distinction in this five-year period: these include judicial approval of resource mobilisation for the fulfilment of children’s rights, emphasis on the quality of and standards in education; the development of innovative remedies to deal with unreasonable state measures affecting children, and an increasing focus on the right to dignity of the child. The authors conclude that the scope of the cases cited points to the growing insertion of children’s rights considerations in increasingly diverse areas of legal interaction. Furthermore, the authors posit that the CRC and ACRWC – together with non-binding sources of international law – have substantively informed and enriched the jurisprudence of South African courts.

'Here's to you, Mrs Robinson' : peculiarities and paragraph 29 in determining the treatment of domestic partnerships

There is always need of persons not only to discover new truths, and point out when what were once truths are true no longer, but also to commence new practices, and set the example of more enlightened conduct. The law is one of the important architects of social norms. At times, it can be a tool to solve problems, eradicate inequalities, and advance the rights of the disadvantaged. At other times, the law is an anchor and a constraint upon social and ideological advances. With regards to equality and non-traditional partnerships, it seems that law falls into this latter category.

The thin edge of the wedge: ukuthwala, alienation and consent

Abstract Ukuthwala, a mock abduction of a girl for the purpose of a customary marriage, has been subject to debate at both local and national level. This debate culminated into a South African Law Reform Commission Report on the practice of ukuthwala. However, the case of Jezile v S brings theory into reality, putting in stark relief the issues that surround this custom in a constitutional democracy. The Jezile case highlights the disjuncture between communities’ lived realities and the constitutional imperatives of the right to practice one’s culture, as well as the rights to equality and dignity, specifically for women and the girl child in the context of ukuthwala. Based on field research conducted in September 2015 and April 2016 in Engcobo (where the ukuthwala was alleged to take place in Jezile), this article sets out the community’s views in the aftermath of the case. Highlighting the alienation of the community from the law, and the complexities in understanding consent, the article posits that much more needs to be done from the ‘bottom up’ to ensure gender equality and protection of the girl child from harm.

Legal ethics education in South Africa: possibilities,challenges and opportunities

Abstract The South African legal profession has been subject to harsh criticism in the last few years, leading to what some have called ‘an ethical crisis.’ Although this perception may or may not be warranted, there have been numerous calls for improved ethical legal practices by South African lawyers. This article seeks to contribute to a discussion about the importance of implementing legal ethics education in South African law schools. The authors (a) explore the meaning of ‘ethical legal practice’ by reference to the international literature; (b) examine the way in which legal ethics has so far been presented in the limited South African literature on the topic; (c) argue the need for a more thorough and critical literature on South African lawyers’ ethics, coupled with a commitment to developing a stronger legal ethics culture within the profession and the legal academia; and (d) suggest a possible approach for South African legal ethics education in the future, with reference to recent developments in other countries.

From the grave to the cradle : the possibility of post-mortem gamete retrieval and reproduction in South Africa?

Abstract The development of reproductive technologies in the last century, such as effective contraceptive methods, artificial insemination, pre-implantation genetic diagnosis, amongst others, has fundamentally reshaped traditional concepts of reproduction parenthood and has raised practical and ethical concerns. This article describes one such development, namely, post-mortem gamete retrieval (PMGR) for the purposes of posthumous reproduction. In exploring the particular concerns arising from this technology, I argue that South Africa lacks a coherent, considered approach to the issue. In considering models adopted in overseas jurisdictions, and the various bases for the legalisation of such a procedure, I adopt an interest theory of rights to argue for restricted access to such a technology in suitable circumstances.