Stellenbosch Law Review

vLex
Publisher:
Juta Journals
Publication date:
2021-07-05
ISBN:
1016-4359

Description:

The Stellenbosch Law Review is a forum for the discussion of topical legal issues in various fields. As a law review the emphasis is on providing insight rather than just an overview. It maintains a balance between a wide variety of specialist fields and legal subjects of general interest.

Issue Number

Latest documents

  • The Normative Dilemma(s) in the African Human Rights System and its Effects on the Development of Human Rights Jurisprudence: A Focus on the African Court on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child

    The butterfly effect illustrates how a small oversight, if left unchecked, can have significant consequences over time. A pertinent example of this principle is found in the Protocol establishing the African Court of Human and Peoples’ Rights, which notably does not grant the African Committee of Experts on the Rights and Welfare of the Child direct access to this court. This omission is particularly striking when compared to the limited access afforded to the African Commission on Human and Peoples’ Rights. To address this impasse, the Committee sought an advisory opinion from the African Court regarding its access. This contribution critically analyses the Court’s advisory opinion in relation to the submissions made by the Committee. The analysis is reflective and proffers some insights worthy of future consideration. It attempts to analyse some of the premises used by the Court to arrive at the final decision in its advisory opinion. The reasons provided, while mostly procedural, cannot shy away from some of the substantive child rights principles that informed, and should have informed the advisory opinion. The sources used for this reflection include submissions by the African Committee, the advisory opinion, the procedural rules of the African Court, the experiences of other regional courts and the jurisprudence of the Court.

  • A Reflection on the Intersection between the Role of State and Non-State Actors in Providing Alternative Care for Children in Tanzania

    The interplay between the role of state and non-state actors in providing alternative care services for children in Tanzania is a phenomenon requiring closer examination. The legal and institutional framework regulating alternative care services vests the care and discharge of services for children deprived of their family environment primarily in the state. The law, however, acknowledges that the state cannot fully and effectively discharge this duty without the support and cooperation of non-state actors and the community. Thus, the state can enter into agreements with various non-state actors (NSAs) to provide selected alternative care services. It is apparent that alternative care services for children in Tanzania are predominantly led by non-state actors, who appear to have adequate resources to facilitate the provision of various services. The main argument of this contribution is that imbalanced power relations between state and non-state actors affect the creation of a clear national vision towards quality alternative care services for children and jeopardise the realisation of the right to alternative care.

  • Trapped in a State of Oblivion: A Quest for Durable Legal Status for Unaccompanied Children in South Africa

    Unaccompanied children seeking international protection face significant legal challenges, often trapped in a state of uncertainty due to their precarious legal status. This uncertainty stems from time-limited permits, prolonged delays in adjudication and insufficient legal and policy frameworks. The lack of secure legal status frequently impedes their access to essential services, such as education, healthcare and gainful employment, as they transition into adulthood. It also leaves them vulnerable to exploitation, abuse, neglect and statelessness. In South Africa, unaccompanied minors often find themselves caught between national security concerns and the protection of children’s rights, as the state attempts to balance safeguarding its citizens and resources while ensuring the protection of vulnerable foreign children. This contribution argues that legislative and administrative gaps, compounded by a rigid migration control discourse, trap unaccompanied minors in a legal limbo, preventing them from accessing the protection they require. Through the lens of South Africa’s constitutional commitment to children’s rights under section 28 of the Constitution, the contribution advocates a child-rights-based approach, urging the adoption of expedited, child-sensitive procedures and the creation of secure pathways to a durable legal status for unaccompanied children living in the country.

  • Navigating the Complexity around Securing Parental Consent for Children to Testify in Child Sexual Abuse Misconduct Cases against Educators

    This contribution investigates the procedural and legal challenges associated with securing child participation in disciplinary proceedings against educators accused of sexual misconduct. While such offences are ordinarily prosecuted under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, they also trigger internal disciplinary processes within the education sector, particularly those administered by employers, the Education Labour Relations Council (“ELRC”), and the South African Council for Educators (“SACE”). These forums frequently rely on child testimony to establish misconduct, yet parental refusal, trauma-related withdrawal and fragmented multi-forum procedures often obstruct accountability. This contribution identifies a critical gap in the legal framework: the absence of mechanisms to ethically compel child participation when parental consent is withheld. Drawing on statutory analysis, case law and comparative international perspectives, the contribution argues for legislative reform grounded in the parens patriae doctrine and constitutional protections. Key recommendations include codifying state intervention, streamlining testimony across forums, and establishing specialised support for child witnesses. These reforms are essential to safeguarding children and strengthening professional accountability in the education sector.

  • Prelims

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  • Destroying Ukrainian Identity through Russification – The Abduction of Ukrainian Children during the Russo-Ukrainian War

    This article examines the legal and humanitarian implications of Russia’s policy of abducting, forcibly transferring, and deporting Ukrainian children during its armed conflict with Ukraine. Russia’s actions have resulted in the systematic separation of children from their families, their transfer within occupied Ukrainian regions, and deportation to Russia and Belarus. Russia has further attempted to erase the Ukrainian identity through Russification and the denial of language and cultural rights. The article evaluates the international legal framework, including the Geneva Conventions, the Convention on the Rights of the Child, and the Genocide Convention, and assesses Russia’s conduct against these standards. The article also analyses the challenges of legal accountability, with reference to the limitations of domestic and international mechanisms for holding perpetrators of these offences to account. The article further considers relevant recent reports on the scale and organisation of the abductions, as well as the international response thereto. The article concludes that, despite widespread condemnation and some positive developments, the prospects for effective accountability remain limited. The continued impunity for crimes against Ukrainian children undermines international law and poses significant risks for future peace and security. The article calls for strengthened international cooperation, improved legal frameworks, and sustained advocacy to protect children in conflict zones and ensure justice for victims.

  • Artificial Intelligence and Children’s Right to Privacy: An Evaluation of South Africa’s Legislative Framework

    The rise of artificial intelligence and technology use has accelerated to such an extent that it has become embedded in everyday life. Children have not been left unaffected by these developments as they increasingly rely on technology in their daily lives. Through their interaction with digital technology, children are part of a vast global system in which huge amounts of their personal data are collected and processed. This data can be easily accessed and used for a variety of purposes, thereby giving rise to a plethora of dangers, including serious privacy concerns for children. Young children and children lacking digital literacy are particularly vulnerable to these privacy violations. The safety risks created by this drastically changing environment necessitate deeper reflection on the impact of AI on children. Such reflection should include the implementation of child-centred policies and more stringent measures to protect children’s privacy rights. One way to accomplish this is through regular review of privacy and data protection legislation, as well as through the establishment of new or amended national and international legislation and policies when necessary. This contribution evaluates South Africa’s data protection legislation, regulations and policies in relation to children’s online privacy rights. This is done against the backdrop of international law and good practices. Where necessary, recommendations for improvement are proposed.

  • The SADC Model Law on Data Protection of Children’s Personal Information in SADC Countries

    This contribution provides an overview of the legal framework governing the processing of children’s personal information in Southern African Development Community (“SADC”) countries, with a focus on the SADC Model Law on Data Protection. With the proliferation of digital technologies and online platforms, children are increasingly engaged in the digital space, raising concerns about the protection of their personal data. The legal landscape in the SADC region is evolving, driven by international norms and regional initiatives. This contribution examines the key principles and provisions of the Model Law relevant to safeguarding children’s personal information and further explores national legislation to assess its alignment with the Model Law. It highlights definitions of personal and sensitive data concerning children, the rights of child data subjects, and the obligations of data controllers, such as obtaining parental consent, implementing security measures, and adopting age-appropriate data practices.The discussion includes the role of supervisory authorities in enforcing compliance and promoting accountability. Challenges such as weak enforcement mechanisms and cross-border data transfers are examined, emphasising the need for harmonised data protection laws across the region. This contribution highlights the significance of a robust legal framework and the role of the SADC Model Law on Data Protection in safeguarding children’s personal information in the digital age. By adhering to principles of data minimisation, purpose limitation and accountability, SADC countries can foster a safe and conducive environment for children to engage in online activities while respecting their privacy rights and best interests.

  • The Proposed Prohibition on Child Marriage in South Africa: Exploring the Implications and Imagining a Retroactive Legal Position for the Married Child

    South Africa (SA) still legally permits child marriages. A consistent call has been made by the Committee on the Rights of the Child (CRC) as well as the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) to SA to abandon this practice. Recent legislative developments indicate that SA might heed such a call. The draft Marriage Bill of 2023 restricts the marriageable age to anyone 18 years or older. Should this law become operational, it will effectively prevent anyone from entering into marriage as a child. Although this law reform would be a victory against child marriage, it will come with one notable limitation – prospective legal application. In recent discussions between the CRC and the South African delegation on the latest country report, a committee expert asked a pertinent question: ‘What was being done to help children already married?’ The position and vulnerability of the South African child in relation to private law, public law and international law sources emphasise the significance and importance of the prospective prohibition on child marriage in South Africa, but fail to account for children already married. In imagining a legal position where South Africa has already banned child marriage, what must be questioned is whether the prohibition will impact the rights and status of the already-married child and whether a retroactive operation should be included when enacting the change to the legislative framework. Potential retroactivity would have a drastic impact on the complex nature of rights, duties and entitlements of children in existing child marriages. Our research intends to examine whether the potential negative impacts of retroactivity when ending child marriage can and should be justified in the best interest of married children.

  • Addressing the Escalation of Child Pornography: Strengthening Child Protection Measures in Sub-Saharan Africa

    In 2022, over 32 million child sexual abuse claims were filed globally. Reports to a global child sexual abuse materials clearinghouse increased by 15% from 2005 to 2020 and by 35% between 2020 and 2021, largely due to a rise in the use of digital technology that facilitates the distribution of exploitative content. The rapid growth of social media and internet connectivity has facilitated the spread of child pornography, heightening risks for children. The safety of children in Sub-Saharan Africa is under serious threat due to the increase in child pornography. Immediate action is necessary to enhance protection measures. Using a doctrinal analysis and review of secondary data, this contribution examines the issues related to child pornography and proposes improvements to child safety protocols in this region. In Sub-Saharan Africa, several factors, including poverty, insufficient funding, ignorance and displacements as a result of war or conflict, lax enforcement of the law, cultural taboos, and stigma around talking about sexuality and child abuse, obstruct initiatives to increase awareness and offer assistance to victims, making children more susceptible to exploitation and abuse. A comprehensive strategy is needed to enhance child safety, including strengthening laws against the creation and distribution of child pornography and improving law enforcement’s ability to investigate and prosecute offenders. To empower children, it is essential to fund education and awareness campaigns, establish child-friendly reporting systems, provide victim support services and promote safe internet usage habits. In conclusion, combatting child pornography in Sub-Saharan Africa requires a concerted effort that includes legal reforms, capacity-building initiatives and community engagement. By prioritising the protection of children and addressing the root causes of exploitation, stakeholders can work towards creating a safer environment for all children in the region.

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