Department of Jurisprudence
https://hdl.handle.net/10500/2873
2024-03-28T15:26:32ZThe legal position regarding the best interests of the child in gender reassignment decisions in South Africa
https://hdl.handle.net/10500/30960
The legal position regarding the best interests of the child in gender reassignment decisions in South Africa
Mahlobogwane, Frans Mashilo
Although the recent concepts ‘gender dysphoria’ (according to the fifth edition of the
Diagnostic and Statistical Manual of Mental Disorders, 2022) and ‘gender
incongruence’ (as defined in the World Health Organization’s 2022 International
Classification of Diseases, ICD-11) may seem to refer to recent phenomena, research
has shown that gender diversity has affected individuals since the earliest times.
Recent years have seen a rapid increase in the number of adolescents and children
diagnosed with gender dysphoria. The prevalence of gender dysphoria is also
reflected in growing public attention and fierce debates regarding gender
reassignment procedures. Despite opposition to the procedures, an increased
acceptance of gender diversity in some parts of the world has been noted,
accompanied by the emergence of adolescent gender affirming health care and the
establishment of gender responsive health services. Not all adolescents affected by
gender dysphoria are able to express their gender incongruence from an early stage,
often leading to feelings of social alienation, anxiety and depression. Past medical
practices, as this thesis shows, have created unintended barriers to care for genderdiverse
adolescents. Adolescents and children were initially not incorporated in clinical
practice guidelines and standards of care issued by the World Professional
Association for Transgender Health (WPATH), an international body that sets the
standards of care for transgender medicine. In recent years, WPATH has
recommended medical interventions for adolescents and children with gender
incongruence. This is because delaying or minimising such medical interventions may
prolong the manifestation of gender dysphoria in adolescents and children. Early
intervention has been found to have a positive effect on the psychological well-being
and social functioning of these children, as well as establishing an external physical
appearance more closely aligned with their gender identity. Despite the
recommendation of early medical intervention, the optimal age of introducing genderaffirming
therapies remains a contested issue in this sensitive field of medicine and
law.
The thesis identifies several legal challenges obstructing adolescents’ access to
gender affirming health care in South Africa. Drawing on a comparative legal overview
of both proactive and restrictive approaches regarding the provision of gender
affirming care in Australia, the United Kingdom, New Zealand, Canada and Denmark, the thesis postulates that the current South African legal framework governing gender
affirming health care fails to meet the bests interests of children and adolescents
suffering from gender dysphoria. In order to address this, the thesis first explores,
through the lens of the best interests of children, different perspectives regarding
children and adolescents’ informed consent to gender affirming health care. Secondly,
the thesis concludes with sound recommendations informed by the legal comparative
analysis, which provides a firm foundation for the consideration of children and
adolescents’ access to gender affirming health care. This foundation will promote
ongoing civil discourse and deliberative dialogue toward better shared decisionmaking
in adolescent gender affirming health care and beyond. In the final instance,
the thesis demonstrates how access to gender affirming health care services must be
grounded in a human rights discourse, strengthened by the application of the yardstick
of the best interests of the child.
2023-11-01T00:00:00ZAn ethico-legal analysis of benefit sharing for health research in South Africa
https://hdl.handle.net/10500/30747
An ethico-legal analysis of benefit sharing for health research in South Africa
Chunda-Sinombe, Priscilla
Health care research conducted in LMICs, including South Africa, has exploded in the last few decades. Albeit a welcome development, there has emerged the fear of and actual exploitation of host communities. As health care research has become funded by private business and often in North-South collaborations at academic institutions by foreign government agencies, potential exploitation is a reality, as there is usually an unfair distribution of risks and benefits among the parties involved. While it stands true that the overall goal of health research is to attain global health and wellness for all, health research using HBMs cannot occur in an exploitative environment that takes unfair advantage of people’s vulnerabilities. Benefit sharing should be a tool for guarding against exploitation and not the basis of a strategy to address urgent global health needs or resolve inherent issues of global distributive justice.
In an attempt to identify the best benefit sharing model for health research for South Africa from an ethico-legal view perspective, one that tempers (not diminishes) commercial interests, redresses economic imbalance and gives research participants fairer and more active roles in influencing the sharing of benefits, this thesis canvasses the current legal framework for benefit sharing in South Africa, as well as other jurisdictions.
The thesis concludes that a benefit sharing framework, based on the charitable trust model, could be adopted in South Africa. This framework recognises the various stakeholders that are part of a research project at different levels of society, whilst simultaneously acknowledging that it is possible to have different types of fair benefits at each stakeholder level, even in the absence of a final, tangible benefit. In terms of this model, academic medical centres and/or research institutions would cease to be brokers of the HBMs and instead become custodians of the samples. This proposed framework will promote compliance with data privacy and informed consent requirements without compromising its value as an information-rich HBM supplier. It would also make the first recipients of HBMs the trustees of the HBMs instead of brokers having legal fiduciary duties over the HBMs, whilst permitting the use of the donated HBMs in a way that benefits the donor as a beneficiary of the trust. Moreover, this trust model will be in the ideal position to create and facilitate continuous communication channels with the donor community, researchers, policymakers and teaching hospitals for fostering trust in health research and its benefits for all stakeholders involved.
2023-06-27T00:00:00ZThe independence of the prosecutorial authority : a comparative study of Zimbabwe, South Africa, and Namibia
https://hdl.handle.net/10500/29597
The independence of the prosecutorial authority : a comparative study of Zimbabwe, South Africa, and Namibia
Mungwari, Lucie-Annie Chipo
In 2014 in the case of Telecel Zimbabwe(Private) Limited v Attorney-General of Zimbabwe1 the Prosecutor-General of Zimbabwe2 challenged the issuing of private prosecution certificates to private parties on the basis that they were unlawful and grossly irrational.3 The Prosecutor-General argued that private prosecutions would interfere with the authority and independence of the Prosecutor-General to prosecute criminal matters on behalf of the state.4 However, the establishment of an independent prosecuting authority is an important or special feature of the Zimbabwean Constitution.5
The importance of the Independence of the prosecution authority is that it has the effect of promoting the separation of powers – a very important doctrine in a democratic state as it promotes accountability. In the Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Republic of South Africa, 1996,6 the Constitutional Court held that there was no fixed or rigid doctrine of separation of powers. The court held that what was important was the separation of powers created by the constitutional text.
The doctrine is to be found in the structure and functions of the different organs of state and their respective interdependence or dependence. The separation serves to prevent too much power vesting in one institution and so promotes the rule of law.7 The court in the Telecel case held that private prosecutions do not interfere with the authority and independence of the Prosecutor-General as sufficient checks were provided in legislation.8 Following this judgment, Zimbabwe saw its first successful private prosecution case when legislator, Munyaradzi Kereke, was convicted on rape charges.9
However, this did not put to rest the debate on the independence of the prosecuting authority and the Prosecutor-General. The debate on independence in prosecution does not centre on private prosecutions only, but goes further to cover the appointment of the Prosecutor-General, a quasi-judicial-political process in Zimbabwe.10 This, together with private prosecutions, has raised a number of questions as to the independence of the prosecuting authority. This debate is not limited to Zimbabwe but has also been raging in South Africa and Namibia.
Zimbabwe and these jurisdictions share the same legal heritage rooted in Roman-Dutch and common-law principles. Apart from their shared legal history, these jurisdictions also share a political and cultural heritage . Then again, the approach to the challenges that surround independence in prosecution might differ due to the different approaches in these jurisdictions in their attempts to resolve existing challenges. As a result, there is a need for a comparative study of Zimbabwe, Namibia, and South Africa directed specifically at discussing and analysing the legal position concerning the independence of the prosecutorial authority.
2022-07-09T00:00:00ZSustainable development and the rights of the indigenous peoples of the Niger Delta : towards a legal framework
https://hdl.handle.net/10500/28638
Sustainable development and the rights of the indigenous peoples of the Niger Delta : towards a legal framework
Abolarin, Elizabeth Ebunoluwa
This research sets to unravel the root cause of the conflict in the Niger Delta with the aim of finding a legal solution as a durable remedy. Grave violations of the indigenous peoples’ human rights and irreparable environmental abuse are identified. Nigeria has no specific law for the protection of the rights of indigenous peoples and there are also no provisions for collective rights in the Constitution. With need to protect their indigenous status, Chapter two establishes the indigenous characterisation of the Ogoni and Ijaw peoples as representative of all the indigenous peoples in the Niger Delta so that they may benefit from any international indigenous peoples’ rights that may accrue to them. International law forms the bedrock of indigenous peoples’ rights. The two international covenants on civil, political, economic, social and cultural rights and the African Charter are the most important, incorporating the rights to self-determination, property, development and environment that provide the basic sustenance for indigenous peoples. As analysed in Chapter three, the African Commission jurisprudence on property rights established in its two dynamic decisions - Ogoni and Endorois, provide extensive precedent for all African indigenous peoples.
The conflict is grounded in issues of ‘development’ and ‘sustainability’ arising from the unsustainable exploitation of oil and gas. The thesis consequently explores the most relevant international sustainable development instruments – the Rio Declaration and the Convention on Biological Diversity together with the Agenda 21 – to support its environmental and sustainable development propositions in both Chapters two and three. Intuitively, a human development-based theory, Sen’s ‘capabilities’ approach becomes inevitable for the enhancement of the sustainable development ideals. This approach provides choices and values for human development and poverty eradication as the primary solution for the well-being of the indigenous peoples. Chapter five proposes a legal framework on sustainable development of natural resources that could augment the existing framework in Nigeria or be factored in as a new initiative in the absence of any extant framework. The proposed framework provides a solution to recognition of indigenous peoples for the actualisation of their capabilities and values, including how they can participate meaningfully in sustainable development, with the emphasis falling on the role of the state as duty-bearer in sustainable development.
2021-09-29T00:00:00Z