The (in)significance of the common law? Constitutional interpretation and the Mansingh judgments
- Authors: Krüger, Rósaan
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68900 , vital:29337 , https://hdl.handle.net/10520/EJC155168
- Description: Publisher version , The law reports abound with case law on the interpretation of the provisions in the Bill of Rights. Cases on the interpretation of constitutional provisions that fall outside of the Bill of Rights are, by contrast, few and far between. (A few prominent examples are S v Mhlungu 1995 (3) SA 867 (CC); President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) ('SARFU'); Matatiele Municipality v President of the Republic of South Africa 2006 (5) SA 47 (CC); Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC); Merafong Demarcation Forum v President of the Republic of South Africa 2008 (5) SA171 (CC); Chonco v President of the Republic of South Africa 2010 (6) BCLR 511 (CC); Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC).) Mansingh's April 2011 application to the North Gauteng High Court was one of these unusual cases.
- Full Text: false
- Date Issued: 2014
- Authors: Krüger, Rósaan
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68900 , vital:29337 , https://hdl.handle.net/10520/EJC155168
- Description: Publisher version , The law reports abound with case law on the interpretation of the provisions in the Bill of Rights. Cases on the interpretation of constitutional provisions that fall outside of the Bill of Rights are, by contrast, few and far between. (A few prominent examples are S v Mhlungu 1995 (3) SA 867 (CC); President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) ('SARFU'); Matatiele Municipality v President of the Republic of South Africa 2006 (5) SA 47 (CC); Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC); Merafong Demarcation Forum v President of the Republic of South Africa 2008 (5) SA171 (CC); Chonco v President of the Republic of South Africa 2010 (6) BCLR 511 (CC); Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC).) Mansingh's April 2011 application to the North Gauteng High Court was one of these unusual cases.
- Full Text: false
- Date Issued: 2014
From the grave to the cradle : the possibility of post-mortem gamete retrieval and reproduction in South Africa
- Authors: Kruuse, Helen
- Date: 2012
- Language: English
- Type: Article
- Identifier: vital:24533 , http://hdl.handle.net/10962/36254 , http://www.tandfonline.com/doi/abs/10.1080/19962126.2012.11865059
- Description: 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.
- Full Text:
- Date Issued: 2012
- Authors: Kruuse, Helen
- Date: 2012
- Language: English
- Type: Article
- Identifier: vital:24533 , http://hdl.handle.net/10962/36254 , http://www.tandfonline.com/doi/abs/10.1080/19962126.2012.11865059
- Description: 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.
- Full Text:
- Date Issued: 2012
Substantive second-level reasoning and experiential learning in legal ethics
- Authors: Kruuse, Helen
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68983 , vital:29345 , https://hdl.handle.net/10520/EJC127082
- Description: Publisher version , This article takes a critical look at law teaching in South Africa and seeks to consider how the application of experiential learning theory may assist law students in gaining a deeper understanding of the law in general, and the complexities of real life practice in particular. While clinical legal education is often seen as the locus of experiential learning in law, the author proposes that well-structured simulations in class can achieve similar goals. The article comprises a description of the nature of experiential learning and a further description of the application of the principles of experiential learning in a particular simulation exercise in a Legal Ethics course (using the US case of Wash St Phys Ins Exch v Fisons Corp 858 P2d 1054 (Wash 1993) as a basis). The author posits that the so-called experiential learning "cycle" or "process" enables a process of learning which draws out the students' beliefs and ideas about a topic so that it can be examined, tested and integrated with new, more refined ideas. This notion is then in keeping with the expectation that students who emerge from higher education institutions have developed meta-cognitive skills. Essentially then, it is hoped that, by using the methods proposed in this article, students can then manage their own development and learning throughout life.
- Full Text: false
- Date Issued: 2012
- Authors: Kruuse, Helen
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68983 , vital:29345 , https://hdl.handle.net/10520/EJC127082
- Description: Publisher version , This article takes a critical look at law teaching in South Africa and seeks to consider how the application of experiential learning theory may assist law students in gaining a deeper understanding of the law in general, and the complexities of real life practice in particular. While clinical legal education is often seen as the locus of experiential learning in law, the author proposes that well-structured simulations in class can achieve similar goals. The article comprises a description of the nature of experiential learning and a further description of the application of the principles of experiential learning in a particular simulation exercise in a Legal Ethics course (using the US case of Wash St Phys Ins Exch v Fisons Corp 858 P2d 1054 (Wash 1993) as a basis). The author posits that the so-called experiential learning "cycle" or "process" enables a process of learning which draws out the students' beliefs and ideas about a topic so that it can be examined, tested and integrated with new, more refined ideas. This notion is then in keeping with the expectation that students who emerge from higher education institutions have developed meta-cognitive skills. Essentially then, it is hoped that, by using the methods proposed in this article, students can then manage their own development and learning throughout life.
- Full Text: false
- Date Issued: 2012
Equality and unfair discrimination: refining the Harksen test
- Authors: Krüger, Rósaan
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68890 , vital:29336 , https://hdl.handle.net/10520/EJC53981
- Description: Publisher version , The 1997 formulation of the test in Harksen by Constitutional Court seemed to settle the constitutional standards in respect of equality and unfair discrimination. In this article this test is scrutinised closely with a view to clarify the different aspects of the right protected in s 9. Reliance is further placed on Canadian commentary which interrogates the dignity-centred analysis of the Canadian Supreme Court in relation to the Canadian Charter's prohibition of discrimination. The similar insistence on dignity as the interest protected by the right to equality opens up new possibilities in the South African context. Accordingly, specific 'wrongs' or 'indignities' of inequality are identified, which refines the Harksen test. The identification of the indignities, it is suggested, assists litigants and the court on a practical level when determining the fairness or otherwise of discrimination.
- Full Text: false
- Date Issued: 2011
- Authors: Krüger, Rósaan
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68890 , vital:29336 , https://hdl.handle.net/10520/EJC53981
- Description: Publisher version , The 1997 formulation of the test in Harksen by Constitutional Court seemed to settle the constitutional standards in respect of equality and unfair discrimination. In this article this test is scrutinised closely with a view to clarify the different aspects of the right protected in s 9. Reliance is further placed on Canadian commentary which interrogates the dignity-centred analysis of the Canadian Supreme Court in relation to the Canadian Charter's prohibition of discrimination. The similar insistence on dignity as the interest protected by the right to equality opens up new possibilities in the South African context. Accordingly, specific 'wrongs' or 'indignities' of inequality are identified, which refines the Harksen test. The identification of the indignities, it is suggested, assists litigants and the court on a practical level when determining the fairness or otherwise of discrimination.
- Full Text: false
- Date Issued: 2011
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