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25 Years of Constitutional Family Law
- Edited by Jens Scherpe, Aalborg University, Denmark, Stephen Gilmore, King's College London
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- Book:
- Family Matters
- Published by:
- Intersentia
- Published online:
- 20 April 2023
- Print publication:
- 22 September 2022, pp 349-366
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Summary
1. INTRODUCTION
In 2003, an article on the impact of the 1996 Constitution of South Africa on family law was published in the International Journal of Law, Policy and the Family. In particular, it reviewed the origins of the absence of a clause specifically dedicated to family rights in the constitutional drafting process, the definition of a family under the Domestic Violence Act, parental responsibilities and rights, the status of partners in same-sex unions, and Muslim and customary law marriages, and at various points, pending law reform was referred to. In one notable instance, this has come to fruition, namely in the adoption of the Children’s Act 38 of 2005 (in force since 1 April 2010).
The constitutional provisions that were largely implicated were (and are) the right to equality ; the right to dignity; the right to freedom of religion, belief and opinion; and children’s rights. This contribution updates that article some two decades later. While not purporting to be exhaustive of all of the family law-related constitutional avenues that have emerged in South Africa, it does cover some main themes, in particular the existing diversity of marriage forms and their constitutional compliance, the position of persons in non-formalised intimate partnerships, and some aspects of the proprietary consequences of relationship breakdown or dissolution. Constitutional developments in relation to parental responsibility and rights have, however, had to stand aside due to space constraints. At the outset, it is set against the background of a Discussion Paper 152 on a Single Marriage Statute that was issued by the South African Law Reform Commission (SALRC) in January 2021.
It appears that this investigation was triggered by an approach from the Ministry of Home Affairs, which is responsible for the births, marriage (civil and customary) and deaths registration. Their interest is less in the proprietary consequences of intimate relations, and more focused on maintaining an accurate population data roll, and the prevention of sham marriages. According to an explanatory memorandum provided to the SALRC, the State has a few vested interests, as it pertains to the institution of marriage in regard to its citizens primarily: some of these relate to the acquisition of citizenship, the establishment of consent and the marital age.
Africa The African Children’s Charter at 30: What Implications for Child and Family Law?
- Edited by Margaret Brinig
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- Book:
- International Survey of Family Law 2021
- Published by:
- Intersentia
- Published online:
- 22 February 2022
- Print publication:
- 28 September 2021, pp 1-16
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Summary
Résumé
Le présent chapitre examine le progrès réalisé et les difficultés rencontrées dans la mise en oeuvre de la Charte africaine des droits et du bien-être de l’enfant (ci-après la Charte) dans les domaines du droit de l’enfant et de la famille. Cette analyse couvrira quelques-uns des évolutions majeures intervenus en matière des droits de l’enfant et de la famille suivant les 30 premières années de la Charte, y compris des réformes législatives, le développement d’institutions spécialisées, la violence domestique et les autres formes de violence, le mariage des enfants, l’adoption internationale et la maternité de substitution, ainsi que le châtiment corporel infligé par les parents.
INTRODUCTION
This chapter reviews some progress made, and challenges experienced, in assessing the impact of the African Charter on the Rights and Welfare of the Child (hereinafter the Charter) in the child and family law domains. Adopted in 1990, and having entered into force in 1999, the thirtieth anniversary of the Charter was celebrated in 2020. While many provisions of the Charter mirror, or are substantially similar to, the United Nations Convention on the Rights of the Child 1989 (hereafter UN CRC), there are uniquely African variants, or additional provisions, that give the Charter its African cultural fingerprint. Added to this is the expansive mandate of its monitoring body, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC). The Charter provides that this Committee of Experts shall have the power to receive and consider State Party reports, but also to receive communications brought to it of alleged violations of childrens rights. It has also been given the mandate to commission interdisciplinary assessments of the situation of African problems in the fields of the rights and welfare of the child, the powers to formulate and lay down principles and rules aimed at protecting the rights and welfare of children in Africa; and powers to resort to any appropriate method if investigating any matter falling within the ambit of the Charter.
South Africa
- Edited by Wendy Schrama, Marilyn Freeman, Nicola Taylor, Marielle Bruning
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- Book:
- International Handbook on Child Participation in Family Law
- Published by:
- Intersentia
- Published online:
- 10 December 2021
- Print publication:
- 29 July 2021, pp 303-316
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INTRODUCTION
South Africa was characterised by formal apartheid (separation of races), which was enforced until 1994. This has deeply affected various aspects still associated with the family law system, including the court system, laws regulating marriage and divorce, and the societal organisation of family life. The fault lines of the past are in many respects reproduced today, 25 years after the formal ending of institutionalised racial segregation.
With a population touching 58 million people (and an unknown number of undocumented migrants), detailed information about family make-up and the incidence of divorce in South Africa has only recently become available. Data on registered marriages is held by the Department of Home Affairs. Registered marriages include civil marriages, customary marriages, and civil unions. In a report released in February 2019, a total of 135,458 civil marriages, 2,588 customary marriages and 1,357 civil unions were registered in 2017. In comparison with 2016 data, registration of civil marriages and customary marriages dropped by 2.9% and 34.9% respectively, whereas that of civil unions increased by 0.3%.
Information on divorces is derived from data held by the Department of Justice. In 2017, 25,390 completed divorce forms were processed, indicating an increase of 0.3% from the 25,326 processed in 2016. More plaintiffs were female (12,938, 51.0%) than male (8,878, 35.0%). The median ages at divorce in 2017 were 44 years for men and 40 years for women. Four in 10 divorces, 11,330 (44.6%) of the 25,390 in 2017, occurred in marriages that did not reach their tenth wedding anniversary. In 2017, there were 14,121 (55.6%) divorces with children aged less than 18 years affected – 44.5% of divorces were from the African population group, 23.6% from the white population, 17.5% from the coloured (mixed-race) population group, and 5.51% from the Asian group. In up to 80% of all family law disputes, one or more of the parties is unrepresented, and approximately only 6% of cases go to trial. The majority of divorces (55.6%) involve children younger than 18 years.
Part of the legacy of apartheid includes the extremely high number of children born out of wedlock, approximating 58% of all births in the country. In addition, partly reflective of the legacy of the migrant labour system of apartheid, only 34.9% of children lived with both biological parents in 2017 (with 21% living with neither biological parent, but often growing up in what are called skip-generation families, where the grandparents raise children either as a consequence of HIV/Aids or due to labour migration of working adults).
The Rights of Minor Siblings in Migration: Why Migration Policies should Stop Systematically Separating Siblings
- Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
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- Book:
- Safeguarding Children's Rights in Immigration Law
- Published by:
- Intersentia
- Published online:
- 30 April 2020
- Print publication:
- 01 January 2020, pp 67-84
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INTRODUCTION
While the peak in the number of asylum seekers was reached in 2015, recent years have continued to present high numbers of asylum requests. In 2016, UNICEF estimated that one in every 200 children in the world today is a refugee. In 2017, over 31,000 unaccompanied minors registered in the EU. The number of child refugees and beneficiaries of subsidiary protection is large, but an anticipated threat to states is that these numbers are bound to increase when children apply for family reunification. In order to ensure states are able to care for the children in their territory, they call for strict migration policies that ensure that no one is able to groundlessly reunify with third-country nationals (TCNs) seeking protection in the EU. By law, EU Member States are granted a wide margin of discretion to identify who falls within or outside the scope of family reunification of TCNs.
The Council of Europe Commissioner for Human Rights wrote in 2017 that
‘[i]n most states, the right to family reunification of unaccompanied minor refugees only extends to their parents. Where it does not extend to other family members, this often leads to great hardship and family separation, as parents must choose to leave behind other children if they wish to avail themselves of the right to reunification with an unaccompanied minor’.
While the Commissioner endorses the tough position that parents of multiple children are in, the fact that the bond between siblings is permanently disrupted as a result of migration policies, as described above, seems neglected or at the least overlooked. Currently, it is up to the discretion of states whether non-parental family relationships of the unaccompanied minor will be eligible for reunification in the host state. Also, it will be up to the discretion of states whether they will strive to keep siblings together and reunite siblings in cases of their separation as a result of migration.
In contrast to strict family reunification policies on a national or regional level, international children's rights law puts its focus on the best interests of children. This general principle is put forth in Article 3 of the UN Convention on the Rights of the Child (UNCRC) and states that in all actions concerning a child, the best interests of the child (BIC) should be a primary consideration.4
Namibia: Towards a New Juvenile Justice System in Namibia
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- By Julia Sloth-Nielsen, Professor, Department of Public Law and Jurisprudence, Faculty of Law, University of the Western Cape, South Africa
- Edited by Margaret Brinig
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- Book:
- International Survey of Family Law 2019
- Published by:
- Intersentia
- Published online:
- 09 November 2019
- Print publication:
- 16 September 2019, pp 205-218
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INTRODUCTION
Namibia's moves towards developing a new juvenile justice system for children in conflict commenced a quarter of a century ago. A country which emerged from the ravages of apartheid colonisation and a bloody civil war to gain independence in 1990, Namibia was an early signatory of the UN Convention on the Rights of the Child (CRC) (1989), and received the advice that juvenile justice system reform was required upon submission of the initial report in 1994. However, bringing the law reform process to a conclusion has been halting. The first draft of a Child Justice Bill was prepared as early as 1994. In 1999, the Juvenile Justice Interministerial Committee (IMC) commissioned a Discussion Document on Juvenile Justice in Namibia. This did not result in the adoption of a separate juvenile justice statute either. Nevertheless, some gains were made in developing restorative justice and diversion programmes, and slowly the involvement of social workers (acting as probation officers) in the nascent juvenile justice system began to take root. The IMC coordinated substantial activities pertaining to the transformation of criminal justice in steering efforts towards compliance with the CRC. A detailed plan of action was crafted and set in motion. The programme description towards a structured and holistic juvenile justice system contained a number of project interventions, namely: Law Reform, Training, Structures, Service Delivery System, Evaluation and Monitoring and Advocacy and Child Crime Prevention.
The principle of restorative justice was deeply written into the programme description. Progress was made in a short time regarding all project interventions. There was a common understanding that the system envisaged a preventative and remedial tool, that came with limitations, in that it would be deeply dependant on an effective service delivery system. The first version of a draft Child Justice Bill was presented to the IMC in 2002. However, this did not result in law reform efforts coming to fruition.
In 2012, a multisectoral and interdisciplinary workshop was held in the capital city Windhoek, to try to build momentum for enhanced efforts at reigniting the reform process.
South Africa
- from THE REGULATORY APPROACH
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- By Julia Sloth-Nielsen, University of the Western Cape, South Africa; University of Leiden, the Netherlands
- Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
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- Book:
- Eastern and Western Perspectives on Surrogacy
- Published by:
- Intersentia
- Published online:
- 26 June 2019
- Print publication:
- 01 May 2019, pp 185-202
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Summary
GENERAL LEGAL FRAMEWORK
Steps to regulate surrogacy in South Africa predate the advent of democracy. In 1987, in a much publicised case, Karen Ferreira Jorge gave birth to triplets, born of the gametes of her daughter (she was the gestational mother and the biological grandmother). At the time there was no legal regulation for this unprecedented state of events, leading to a project committee of the South African Law Commission (now the South African Law Reform Commission (hereafter ‘SALRC’) being appointed to investigate the issue. Although this Committee had completed its work in the 1990s, there was no further legislative action (notwithstanding a post-1994 Ad Hoc Parliamentary Committee being convened to conduct public hearings on surrogacy) to finalise new laws. Ultimately surrogacy was added as a final chapter to the Children ‘s Act 38 of 2005, which came fully into force in April 2010. The project committee which had deliberated upon the development of the omnibus Children’ s Act had not considered surrogacy during its lifespan, so the impetus to add surrogacy to the Children ‘s Act came from within the SALRC. The initial work of the SALRC has survived, and many of the current provisions can be traced to the original report. The location of regulations on surrogacy within the overarching tenets of the Children’ s Act has, however, shaped the current interpretation of the provisions, as will be shown below. By way of a preliminary point, the Act allows only altruistic surrogacy: commercial surrogacy is barred.
South Africa stands out for its progressive constitution, with two particular clauses worthy of discussion. First, s. 28 provides a mini charter of children ‘s rights, including the injunction that the best interests of the child are of paramount concern in all matters affecting the child. As a justiciable constitutional right, the best interests provision has provided an important standard which has at times been overriding. Second, South Africa’ s equality clause (s. 9) prohibits discrimination on a wide range of bases, including gender, marital status and sexual orientation. All have proved to be relevant in the context of surrogacy, which is equally available to hetero and same-sex couples.
Africa Children and Informal Justice Systems in Africa
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- By Julia Sloth-Nielsen, Professor, Faculty of Law, University of the Western Cape (UWC), South Africa; Professor of Children's Rights in the Developing World, University of Leiden, The Netherlands
- Edited by Margaret Brinig
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- Book:
- International Survey of Family Law 2018
- Published by:
- Intersentia
- Published online:
- 31 January 2019
- Print publication:
- 28 September 2018, pp 1-22
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Summary
This chapter draws from a larger study titled ‘Achieving child-friendly justice’ in Africa. The study aimed to assess the state of child friendly justice in Africa. Part of the work sought to explore the extent to which children encounter informal justice systems in juvenile justice, child protection, family law matters, and as victims of criminal offences. Although reflecting mostly on the paucity of literature available, the work was bolstered by seven country studies which were undertaken in parallel with the preparation of the main work, which contribute to the understanding of children's contact with informal justice systems. The characteristics of informal justice processes are discussed, as well as the reasons for communities’ continued reliance on them, in preference to formal justice systems. The challenges facing the implementation of children's rights principles in informal justice processes is scrutinised. Finally conclusions and recommendations for strengthening the linkages between formal and informal justice systems, and for infusing a more child rights orientation, are put forward.
INTRODUCTION
Africans perceive conflict as the motor and engine of relationships. This is because it is impossible to speak of a relationship without conflict and it is impossible to speak of conflict without a relationship. Being a social phenomenon, the general intention of conflict resolution … is to mend broken or damaged relationships, rectify wrongs, and restore justice and harmony between individuals, families and the community at large. The traditional concept of conflict resolution is to reconcile and make peace between disputing parties, ensure the reintegration of the disputing parties into the society and to promote co-operation and harmony between them that may help improve their relationship.
The continued use of informal justice mechanisms must be seen in both historical and contemporary contexts. Sidelined and regarded as backward during the colonial era, informal justice systems were regarded as an impediment to development. Upon liberation from colonial rule, it was thought that they would simply die out. However, for reasons set out below, this did not occur and they continued to form the backbone of access to justice for citizens in an estimated 70 per cent to 90 per cent of instances, according to some sources.
6 - The Protection of Children’s Economic, Social and Cultural Rights under the African Children’s Charter
- from Part III - African Regional and Sub-Regional Protection
- Edited by Danwood Mzikenge Chirwa, University of Cape Town, Lilian Chenwi, University of the Witwatersrand, Johannesburg
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- Book:
- The Protection of Economic, Social and Cultural Rights in Africa
- Published online:
- 03 November 2016
- Print publication:
- 20 October 2016, pp 155-179
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Does the Differential Criterion for Vesting Parental Rights and Responsibilities of Unmarried Parents Violate International Law? A Legislative and Social Study of Three African Countries
- Julia Sloth-Nielsen, Lorenzo Wakefield, Nkatha L Murungi
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- Journal:
- Journal of African Law / Volume 55 / Issue 2 / October 2011
- Published online by Cambridge University Press:
- 14 September 2011, pp. 203-229
- Print publication:
- October 2011
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The right to non-discrimination for all children is established in international human rights law. International children's rights law further provides for the common responsibility of parents for the maintenance of their children. African customary law and common law have always made a distinction between children born in and out of wedlock so far as the duty to maintain them is concerned. The resilience of this customary and common law approach is evident in statutory provisions of the countries discussed in this article. This is despite international obligations under children's rights treaties ratified by these countries. On the face of it, the distinction of responsibility based on marital status seems harmless. However, in view of gender inequities and resource distribution between men and women in society, such a distinction has serious implications for the rights of affected children.
8 - The Ballot as a Bulwark: Prisoners' Right to Vote in South Africa
- Edited by Alec C. Ewald, University of Vermont, Brandon Rottinghaus, University of Houston
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- Book:
- Criminal Disenfranchisement in an International Perspective
- Published online:
- 03 July 2009
- Print publication:
- 13 April 2009, pp 221-243
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Summary
INTRODUCTION
The political and social transformation of South Africa started in 1990 with a sense of trepidation but with a general conviction that there was no other way but transition to a constitutional democracy, and the nation held its first democratic elections in 1994. Even South Africans in prison have been part of the achievement of a relatively peaceful transition: South Africa is one of a select group of countries in the world where both sentenced and unsentenced prisoners vote in elections. However, prisoners' participation in the 1994 elections as well as in subsequent elections has not been uncontested, and as this chapter shows, that participation has been and remains the subject of intense constitutional and political scrutiny. That South African prisoners can now vote should not be regarded as the end of the story because history has shown that prisoners' rights are very much a function of broader sociopolitical trends. The current government is faced with a persistent violent crime problem that is leaving the South African population frustrated, victimized, and traumatized. The euphoria of the 1994 transition to democracy is a distant memory for many South Africans, and prisoners' rights are finding fewer sympathetic ears. Moreover, both of the landmark Constitutional Court decisions protecting prisoners' right to vote may be read more narrowly than they are sometimes perceived outside South Africa.