The legal remedies to protect minors against cyberbullying in South Africa
- Authors: Hlazo, Nonhlanhla Irene
- Date: 2018
- Subjects: Cyberbullying -- South Africa , Child pornography -- Law and legislation -- South Africa , Child sexual abuse -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30271 , vital:30914
- Description: The aim of this research is to investigate the constitutional, common law and legislative remedies available to protect the rights of minors against cyberbullying in South Africa and whether these laws are in line with the relevant international instruments. The study focuses on the protection of the rights of minors online as the most vulnerable group in society. The internet was not originally created to be used by minors, therefore, children are subject to more risks on the internet like cyberbullying. Cyberbullying results in the infringement of the rights to privacy, dignity and reputation among others. There are several remedies available in South African private law to protect the rights of minors. However, the rights of the victim must be balanced against the perpetrator’s right to freedom of expression, taking into consideration the best interests of both children. The remedies available are in line with some international instruments safeguarding human rights but there are a number of weaknesses in relation to the application of these remedies to instances of cyberbullying. For example, an interdict cannot be issued in instances where the cyberbully is anonymous. The current legislative framework, although also in line with relevant international instruments, is not going far enough to protect children against cyberbullying. In addition, the term “cyberbullying” is not specifically defined in any of the Acts, which may create challenges in the prosecution of the crime. Fortunately, there are a number of Bills in the pipeline that aim to address the gaps in the current law. Several provisions of the Bills also correlate with relevant international instruments. However, there is a need to revise the proposed Bills in order to sufficiently protect minors against cyberbulling. This study also proposes recommendations relating to some of the inadequacies of the law in this regard.
- Full Text:
- Date Issued: 2018
- Authors: Hlazo, Nonhlanhla Irene
- Date: 2018
- Subjects: Cyberbullying -- South Africa , Child pornography -- Law and legislation -- South Africa , Child sexual abuse -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30271 , vital:30914
- Description: The aim of this research is to investigate the constitutional, common law and legislative remedies available to protect the rights of minors against cyberbullying in South Africa and whether these laws are in line with the relevant international instruments. The study focuses on the protection of the rights of minors online as the most vulnerable group in society. The internet was not originally created to be used by minors, therefore, children are subject to more risks on the internet like cyberbullying. Cyberbullying results in the infringement of the rights to privacy, dignity and reputation among others. There are several remedies available in South African private law to protect the rights of minors. However, the rights of the victim must be balanced against the perpetrator’s right to freedom of expression, taking into consideration the best interests of both children. The remedies available are in line with some international instruments safeguarding human rights but there are a number of weaknesses in relation to the application of these remedies to instances of cyberbullying. For example, an interdict cannot be issued in instances where the cyberbully is anonymous. The current legislative framework, although also in line with relevant international instruments, is not going far enough to protect children against cyberbullying. In addition, the term “cyberbullying” is not specifically defined in any of the Acts, which may create challenges in the prosecution of the crime. Fortunately, there are a number of Bills in the pipeline that aim to address the gaps in the current law. Several provisions of the Bills also correlate with relevant international instruments. However, there is a need to revise the proposed Bills in order to sufficiently protect minors against cyberbulling. This study also proposes recommendations relating to some of the inadequacies of the law in this regard.
- Full Text:
- Date Issued: 2018
The best interests of the child witness in disciplinary cases of educators
- Authors: Seshibe, Maropene Viniel
- Date: 2014
- Subjects: Child witnesses -- South Africa , Child sexual abuse -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10257 , http://hdl.handle.net/10948/d1021058
- Description: The South African Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. This principle emanates from the United Nations Declaration on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). Accordingly the State and its various departments have adopted and are enforcing legislation and policies in defence of the child’s best interest. The principle of the best interest of the child is seldom observed in most of our schools. Incidents of child abuse are on the increase, especially by educators. This unfortunate situation prevails against the backdrop of legislation which condemns these atrocities. Section 17 of the Employment of Educators Act1 provides that educators must be discharged if they are found guilty of, inter alia, sexual abuse, intimate relationship with a learner and assault with grievous bodily harm. These measures have been taken to combat the vicious cycle of child abuse in schools and to advance children’s-rights agenda and the universal principle of the child’s best interests. For the department to successfully prosecute educator cases against child abuse, the testimony of a child witness is crucial. However, it is shocking to discover that the interests of the child witness are not always served in these disciplinary hearings. Officials are prone to be biased towards their fellow professionals at the expense of the interest of the child witness. This situation normally arises probably as a result of a lack of professional capacity because most of these officials tasked with disciplining educators have a teaching, human-resource or legal qualification. Others may have been recruited from the ranks of the trade-union movement without any formal qualification. Secondly, they may be specialists in the field of labour law which is essentially concerned with the regulating the employer and employee relationship. Thirdly, the disciplinary code and procedures that are used during educator-disciplinary processes are premised on the principles and values of the Labour 1 Act 76 of 1998. Relations Act Code of Good Practice: Dismissal2 and Schedule 2 of the Employment of Educators Act3 which addresses the interest of the child witness to a very limited extend. Finally, the policies regulating workplace discipline are generally biased towards employee rights as espoused in the Labour Relations Act4 and CCMA guidelines on misconduct arbitrations. This study has identified a number of challenges confronting the child witness and also areas of capacity improvement on the side of officials officiating over the disciplinary cases of educators. These challenges form the basis for a comprehensive and consolidated list of aspects in which officials need to be trained to effectively promote and defend the interest of the child witness in a professional manner. The role of the departmental representative in becoming the champions of the democratic Constitution and the vanguard of the child’s best interest cannot be over-emphasised. The question of how best to serve the best interest of the child witness has been addressed. The child witness can be a credible witness provided officials win over his or her confidence to speak out against abuse. The 16 days of activism against women and children abuse has to resonate consciously with departmental officials.
- Full Text:
- Date Issued: 2014
- Authors: Seshibe, Maropene Viniel
- Date: 2014
- Subjects: Child witnesses -- South Africa , Child sexual abuse -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10257 , http://hdl.handle.net/10948/d1021058
- Description: The South African Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. This principle emanates from the United Nations Declaration on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). Accordingly the State and its various departments have adopted and are enforcing legislation and policies in defence of the child’s best interest. The principle of the best interest of the child is seldom observed in most of our schools. Incidents of child abuse are on the increase, especially by educators. This unfortunate situation prevails against the backdrop of legislation which condemns these atrocities. Section 17 of the Employment of Educators Act1 provides that educators must be discharged if they are found guilty of, inter alia, sexual abuse, intimate relationship with a learner and assault with grievous bodily harm. These measures have been taken to combat the vicious cycle of child abuse in schools and to advance children’s-rights agenda and the universal principle of the child’s best interests. For the department to successfully prosecute educator cases against child abuse, the testimony of a child witness is crucial. However, it is shocking to discover that the interests of the child witness are not always served in these disciplinary hearings. Officials are prone to be biased towards their fellow professionals at the expense of the interest of the child witness. This situation normally arises probably as a result of a lack of professional capacity because most of these officials tasked with disciplining educators have a teaching, human-resource or legal qualification. Others may have been recruited from the ranks of the trade-union movement without any formal qualification. Secondly, they may be specialists in the field of labour law which is essentially concerned with the regulating the employer and employee relationship. Thirdly, the disciplinary code and procedures that are used during educator-disciplinary processes are premised on the principles and values of the Labour 1 Act 76 of 1998. Relations Act Code of Good Practice: Dismissal2 and Schedule 2 of the Employment of Educators Act3 which addresses the interest of the child witness to a very limited extend. Finally, the policies regulating workplace discipline are generally biased towards employee rights as espoused in the Labour Relations Act4 and CCMA guidelines on misconduct arbitrations. This study has identified a number of challenges confronting the child witness and also areas of capacity improvement on the side of officials officiating over the disciplinary cases of educators. These challenges form the basis for a comprehensive and consolidated list of aspects in which officials need to be trained to effectively promote and defend the interest of the child witness in a professional manner. The role of the departmental representative in becoming the champions of the democratic Constitution and the vanguard of the child’s best interest cannot be over-emphasised. The question of how best to serve the best interest of the child witness has been addressed. The child witness can be a credible witness provided officials win over his or her confidence to speak out against abuse. The 16 days of activism against women and children abuse has to resonate consciously with departmental officials.
- Full Text:
- Date Issued: 2014
The grooming process and the defence of consent in child sexual abuse cases
- Authors: Minnie, Deon
- Date: 2009
- Subjects: Child sexual abuse -- South Africa , Sexually abused children -- Family relationships -- South Africa , Sexual consent -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10172 , http://hdl.handle.net/10948/1036 , Child sexual abuse -- South Africa , Sexually abused children -- Family relationships -- South Africa , Sexual consent -- South Africa
- Description: Child sexual abuse in its various guises is a phenomenon that has been part and parcel of society for centuries. It is only in the last few decades, however, that professional and societal interest in this social tragedy has been triggered, and continues to increase. The consequences and impact of child sexual abuse are far-reaching. Not only are individual victims marred by its consequences, but so too does it profoundly affect family systems and societies. As a result of professional interest in this field which has been fuelled by the popular media, the cloak of social secrecy which has covered this previously taboo subject has been shed. Although still hugely under-reported, sometimes even denied and buried by some individuals and societies, it is now widely acknowledged that child sexual abuse is a stark reality. Definitions of this phenomenon abound, with some definitions being more descriptive than others. The grooming process often forms an integral part of child sexual abuse. Through purposefully constructed relationships with their victims, sex offenders make their victims feel responsible for, complicit in and guilty about the abuse. The child is therefore tricked into keeping the abuse a secret. Often the child may not realise that what is happening is in fact abusive. Through grooming the abusive behaviour is normalised and the child may believe that it is part of an affectionate and caring relationship with the offender. The victim often gets lost in the labyrinth of confusion created by a web of deceit, which may result in consensual sexual activities between the child and the sex offender, a fact which is widely acknowledged. Consent is often raised as a defence when sex offenders are charged with and prosecuted for their crimes, more specifically in relation to victims who are over the age of twelve years and more frequently in relation to victims who are sixteen years and older. This consent, however, ought not to be valid for purposes of any sexual activities between such adults and children. Consent is often given as a consequence of the unique dynamics of the grooming process and the imbalance of power and authority. Furthermore, the child’s level of understanding and life experience, as shaped by the grooming process, may also have an important impact on ostensible consent given. South African courts, in accordance with international trends, have apparently started acknowledging the impact of the grooming process on consent given by children in sexual abuse cases. Some courts, as of late, are prepared to more readily reject the defence of consent in such cases. It is noteworthy that this trend has started to develop in South Africa even prior to the commencement of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. This act defines consent for purposes of the newly created offences, and also stipulates the circumstances in which ostensible consent does not comply with the definition. This definition does not differ materially from the “traditional” approach to consent that was applied prior to the commencement of this act. Furthermore, a number of new offences were created, amongst them the offence of sexual grooming of children. Courts can therefore no longer ignore the existence of the grooming phenomenon and the impact thereof in child sexual abuse cases.
- Full Text:
- Date Issued: 2009
- Authors: Minnie, Deon
- Date: 2009
- Subjects: Child sexual abuse -- South Africa , Sexually abused children -- Family relationships -- South Africa , Sexual consent -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10172 , http://hdl.handle.net/10948/1036 , Child sexual abuse -- South Africa , Sexually abused children -- Family relationships -- South Africa , Sexual consent -- South Africa
- Description: Child sexual abuse in its various guises is a phenomenon that has been part and parcel of society for centuries. It is only in the last few decades, however, that professional and societal interest in this social tragedy has been triggered, and continues to increase. The consequences and impact of child sexual abuse are far-reaching. Not only are individual victims marred by its consequences, but so too does it profoundly affect family systems and societies. As a result of professional interest in this field which has been fuelled by the popular media, the cloak of social secrecy which has covered this previously taboo subject has been shed. Although still hugely under-reported, sometimes even denied and buried by some individuals and societies, it is now widely acknowledged that child sexual abuse is a stark reality. Definitions of this phenomenon abound, with some definitions being more descriptive than others. The grooming process often forms an integral part of child sexual abuse. Through purposefully constructed relationships with their victims, sex offenders make their victims feel responsible for, complicit in and guilty about the abuse. The child is therefore tricked into keeping the abuse a secret. Often the child may not realise that what is happening is in fact abusive. Through grooming the abusive behaviour is normalised and the child may believe that it is part of an affectionate and caring relationship with the offender. The victim often gets lost in the labyrinth of confusion created by a web of deceit, which may result in consensual sexual activities between the child and the sex offender, a fact which is widely acknowledged. Consent is often raised as a defence when sex offenders are charged with and prosecuted for their crimes, more specifically in relation to victims who are over the age of twelve years and more frequently in relation to victims who are sixteen years and older. This consent, however, ought not to be valid for purposes of any sexual activities between such adults and children. Consent is often given as a consequence of the unique dynamics of the grooming process and the imbalance of power and authority. Furthermore, the child’s level of understanding and life experience, as shaped by the grooming process, may also have an important impact on ostensible consent given. South African courts, in accordance with international trends, have apparently started acknowledging the impact of the grooming process on consent given by children in sexual abuse cases. Some courts, as of late, are prepared to more readily reject the defence of consent in such cases. It is noteworthy that this trend has started to develop in South Africa even prior to the commencement of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. This act defines consent for purposes of the newly created offences, and also stipulates the circumstances in which ostensible consent does not comply with the definition. This definition does not differ materially from the “traditional” approach to consent that was applied prior to the commencement of this act. Furthermore, a number of new offences were created, amongst them the offence of sexual grooming of children. Courts can therefore no longer ignore the existence of the grooming phenomenon and the impact thereof in child sexual abuse cases.
- Full Text:
- Date Issued: 2009
Child sex tourism in South African law
- Authors: Chetty, Kasturi
- Date: 2007
- Subjects: Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10276 , http://hdl.handle.net/10948/485 , Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Description: Child sex tourism is tourism organised with the primary purpose of facilitating a commercial sexual relationship with a child. It involves a segment of the local child sex industry that is directly connected to both an international and domestic tourist market. The increase of tourism has brought with it complications in that tourism is being used as a means for sex tourists to initiate contact with children. Aside from child sex tourists who are paedophiles, there are those who engage in the opportunistic exploitation of children while travelling on business or for other reasons. There are a number of social and economic factors leading to child sex tourism and the effect is that child victims are exposed to immediate harm, irreversible damage and even death. As South Africa's tourism industry expands into one of the country’s top earners of foreign currency, it is unfortunate to note that its child sex tourist trade is also on the increase. Reports show that sex tours are as easily organised as wine route tours in Cape Town. Commercial sexual exploitation of children is prevalent in South Africa and has become more organised in recent years. A comprehensive response to the problem is essential to ensure that South Africa does not become a “safe haven” for child sex tourists. Effective laws at home and the extraterritorial application of these laws to prosecute South African nationals for crimes committed abroad are imperative. Significant steps are being taken both nationally and internationally to target child sex tourism. South Africa has ratified several international instruments on children’s rights, trafficking in persons, child labour, and discrimination against women and young girls, all of which relate to child sex tourism. In doing so, South Africa has made an international commitment to uphold the provisions of these instruments and give effect to them. South Africa is therefore under an international obligation to create the necessary structures and apply mechanisms and resources to combat child sex tourism.
- Full Text:
- Date Issued: 2007
- Authors: Chetty, Kasturi
- Date: 2007
- Subjects: Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10276 , http://hdl.handle.net/10948/485 , Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Description: Child sex tourism is tourism organised with the primary purpose of facilitating a commercial sexual relationship with a child. It involves a segment of the local child sex industry that is directly connected to both an international and domestic tourist market. The increase of tourism has brought with it complications in that tourism is being used as a means for sex tourists to initiate contact with children. Aside from child sex tourists who are paedophiles, there are those who engage in the opportunistic exploitation of children while travelling on business or for other reasons. There are a number of social and economic factors leading to child sex tourism and the effect is that child victims are exposed to immediate harm, irreversible damage and even death. As South Africa's tourism industry expands into one of the country’s top earners of foreign currency, it is unfortunate to note that its child sex tourist trade is also on the increase. Reports show that sex tours are as easily organised as wine route tours in Cape Town. Commercial sexual exploitation of children is prevalent in South Africa and has become more organised in recent years. A comprehensive response to the problem is essential to ensure that South Africa does not become a “safe haven” for child sex tourists. Effective laws at home and the extraterritorial application of these laws to prosecute South African nationals for crimes committed abroad are imperative. Significant steps are being taken both nationally and internationally to target child sex tourism. South Africa has ratified several international instruments on children’s rights, trafficking in persons, child labour, and discrimination against women and young girls, all of which relate to child sex tourism. In doing so, South Africa has made an international commitment to uphold the provisions of these instruments and give effect to them. South Africa is therefore under an international obligation to create the necessary structures and apply mechanisms and resources to combat child sex tourism.
- Full Text:
- Date Issued: 2007
Aspects of the sentencing process in child sexual abuse cases
- Authors: Van der Merwe, Annette
- Date: 2006
- Subjects: Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3696 , http://hdl.handle.net/10962/d1003211 , Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Description: This thesis investigates current sentencing practices relating to the diverse, complex and emotionally laden phenomenon of child sexual abuse. It focuses on relevant legislative provisions, on case law and on an empirical study conducted amongst regional court magistrates. Trends, developments and problems are analysed and possible solutions to the main problems identified are investigated. The thesis concludes with proposed guidelines regarding the sentencing process in child sexual abuse cases. Such guidelines address general and specific principles, the use of victim impact statements, the increased recognition and use of behavioural science in the sentencing phase with regard to both the victim and the offender, and relevant aggravating and mitigating factors. The guidelines are an attempt to give some structure to the current haphazard approach adopted by the courts with regard to harm experienced by the victim. They are also aimed at assisting experts to provide more effective and reliable pre-sentence reports. Further, the thesis attempts to provide clarity concerning the factors that are considered to be aggravating or mitigating in the offence category, child sexual abuse, as well as with regard to the weight that should be attached to them. In addition, recommendations are made for the purpose of possible law reform and further research in relation to the regulation of judicial discretion through the introduction of formal sentencing guidelines, victim impact statements and the accommodation of behavioural science in the sentencing process pertaining to sexual offenders. This proposal is based on current South African sentencing practices as reflected in the consolidation of local judgments scattered over many years in different law reports and, to some extent, on English, Canadian, Australian and American sentencing practices as researched in this study.
- Full Text:
- Date Issued: 2006
- Authors: Van der Merwe, Annette
- Date: 2006
- Subjects: Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3696 , http://hdl.handle.net/10962/d1003211 , Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Description: This thesis investigates current sentencing practices relating to the diverse, complex and emotionally laden phenomenon of child sexual abuse. It focuses on relevant legislative provisions, on case law and on an empirical study conducted amongst regional court magistrates. Trends, developments and problems are analysed and possible solutions to the main problems identified are investigated. The thesis concludes with proposed guidelines regarding the sentencing process in child sexual abuse cases. Such guidelines address general and specific principles, the use of victim impact statements, the increased recognition and use of behavioural science in the sentencing phase with regard to both the victim and the offender, and relevant aggravating and mitigating factors. The guidelines are an attempt to give some structure to the current haphazard approach adopted by the courts with regard to harm experienced by the victim. They are also aimed at assisting experts to provide more effective and reliable pre-sentence reports. Further, the thesis attempts to provide clarity concerning the factors that are considered to be aggravating or mitigating in the offence category, child sexual abuse, as well as with regard to the weight that should be attached to them. In addition, recommendations are made for the purpose of possible law reform and further research in relation to the regulation of judicial discretion through the introduction of formal sentencing guidelines, victim impact statements and the accommodation of behavioural science in the sentencing process pertaining to sexual offenders. This proposal is based on current South African sentencing practices as reflected in the consolidation of local judgments scattered over many years in different law reports and, to some extent, on English, Canadian, Australian and American sentencing practices as researched in this study.
- Full Text:
- Date Issued: 2006
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