Research Articles (Private Law)

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Gaps in the rainbow nation : a critique of South Africa's tolerance of conversion therapy
Baird, Sophy B. (Routledge, 2026)
South Africa has not yet enacted a specific legislative ban on conversion practices. This is despite widespread international consensus that so-called conversion practices—aimed at changing an individual’s sexual orientation, gender identity, or gender expression—are harmful, unethical, and violate fundamental human rights. This omission is particularly striking given South Africa’s globally lauded Constitution, which enshrines the rights to equality, dignity, and bodily and psychological integrity, and is often celebrated for its progressive protection of LGBTQ+ persons. This article critically examines the dissonance between South Africa’s constitutional values and its legal silence on conversion practices, especially as they relate to vulnerable groups. Drawing on domestic jurisprudence, international human rights law, and comparative legislative developments from jurisdictions such as Australia and Germany, the article argues that the continued permissibility of conversion practices in South Africa constitutes a systemic failure to fulfil both constitutional obligations and international commitments. It also examines the professional stances adopted by organizations such as the Psychological Society of South Africa and critiques the limitations of relying solely on ethical guidelines in the absence of statutory or criminal sanctions. The article concludes with a call for urgent legal reform, proposing a rights-based legislative framework that expressly prohibits conversion practices and aligns South Africa’s domestic law with its constitutional ethos and global human rights standards.
The fair dealing/fair use landscape for artificial intelligence innovation and computational research in Africa
Okorie, Chijioke Ifeoma (Routledge, 2026)
This paper sets out the issues of copyright ownership and risk of copyright infringement liability raised by data science research use of data held by public bodies (in particular, public service broadcasters) in South Africa and Nigeria. Considering both the fair dealing exception in South Africa’s Copyright Act of 1978 and Nigeria’s Copyright Act, 2022 as well the proposed fair use provision in South Africa’s Copyright Amendment Bill B13F-2017, the paper discusses these issues elaborating on the reasons why data science researchers in public research institutions should not and do not require a copyright licence or be considered to be infringing copyright when they use copyright-protected materials held by public bodies for data science and artificial intelligence or machine learning research. The paper also suggests that where the outputs of data science research are copyright-protected, they should be made available in an open and accessible manner with reasonable safeguards.
Artificial intelligence in South African universities : curriculum transformation and decolonisation—aid or obstacle?
Maimela, Charles; Mbonde, Palesa (Frontiers Media, 2025-07-08)
The integration of Artificial Intelligence (AI) in South African universities presents both opportunities and challenges, particularly within the context of curriculum transformation and decolonisation. This paper critically examines the relevance of AI in relation to the #FeesMustFall movement, which advocates for equitable access to education, and explores how these themes intersect with decolonisation efforts in South Africa. Although AI technologies promise advantages like tailored learning experiences, improved administrative processes, and enhanced research capabilities, they also present issues related to epistemic bias, digital disparities, and the reinforcement of Western-centric knowledge systems. Grounded in empirical research, this study investigates whether AI serves as an aid or an obstacle in South African higher education, with a specific focus on Historically White Universities (HWUs) and Historically Black Universities (HBUs). Using the Diffusion of Innovation (DOI) theory as a framework, the research explores disparities in AI adoption across institutions, analysing infrastructural constraints, policy gaps, and the broader implications of AI for knowledge production. The findings reveal that while HWUs have made significant strides in AI integration due to better funding and international collaborations, HBUs continue to face systemic barriers that hinder equitable access to AI-driven learning tools. Moreover, AI’s reliance on Western datasets and epistemologies risks perpetuating digital colonialism, complicating ongoing efforts to decolonise the curriculum. This paper underlines the urgent need for Afrocentric AI models that align with local contexts and values, inclusive policy frameworks that address the needs highlighted by #FeesMustFall, and targeted investments in digital infrastructure. By doing so, it aims to ensure that AI contributes meaningfully to higher education curriculum transformation and decolonisation in South Africa.
The role of the Committee on the Rights of the Child in strengthening accountability for attacks on education in armed conflict
Skelton, Ann, 1961- (Frontiers Media, 2025-12-19)
Education is increasingly under attack in situations of armed conflict, with increasing incidence of schools bombed, repurposed for military use, education politicized, and children denied access to learning. This1 opinion piece examines how the UN Committee on the Rights of the Child (CRC Committee) is responding to these violations by integrating international humanitarian law (IHL), international human rights law (IHRL), international criminal law (ICL) and global accountability mechanisms into its recommendations. Drawing on recent concluding observations to the Russian Federation and Israel, the article highlights the Committee's evolving role in protecting children's right to education in conflict zones. It argues that the Committee is not only interpreting the Convention on the Rights of the Child (CRC) as a living instrument but also asserting its relevance within a broader legal and political context. The analysis concludes that the Committee remains a vital actor in the global effort to strengthen accountability in responding to attacks on education.
A case for enhanced collaboration between experts and diplomats in the United Nations to enhance girls’ rights
Swartz, Wendy; Skelton, Ann, 1961- (Routledge, 2026)
Women's and girls' sexual and reproductive health and rights (SRHR), including access to comprehensive sexual education (CSE), are fundamental human rights recognised under international law. However, these rights are frequently restricted or denied, despite international frameworks intended to protect them. This article examines the relationship between diplomats and child rights experts within UN bodies, focusing on how diplomatic engagement either supports or undermines the work of experts advocating for girls' SRHR and CSE. It explores the political tensions and polarisation that arise when girls' rights are embedded within broader, often contentious, issues. These tensions impact how rights are interpreted and implemented at the international level. The article finds that, while UN documents increasingly acknowledge these rights, challenges remain in achieving consistent definitions and shared understanding among stakeholders. It concludes by calling for improved collaboration between diplomats and experts to ensure diplomats are better informed about SRHR and CSE developments. Strengthening this relationship is crucial to advancing and safeguarding the rights of girls within global human rights frameworks.
General Comment 26 on 'Children's Rights and the Environment With a Special Focus on Climate Change' : its potential for human rights climate change litigation in South Africa
Veriava, Faranaaz; Brodie, Motheo (Routledge, 2025)
Climate change poses an unprecedented threat to human rights with children being among the most vulnerable. There have been significant developments in international human rights law in recent years to respond to the challenges of climate change, including, with respect to children. General Comment 26 on Children’s Rights and the Environment with a Special Focus on Climate Change from the Committee on the Rights of the Child is one such document. The Comment aims to provide authoritative guidance to the interpretation of several mutually reinforcing and interdependent children’s rights in the Convention on the Rights of the Child as well as in the lexicon of climate justice principles. This article critical analyses the Comment to assist climate justice activists and litigators in South Africa, who are increasingly turning to human rights climate change litigation in response to the climate crisis. Such a critical analysis aims to highlight where the Comment can aid more transformative interpretations of the rights in the Constitution of the Republic of South Africa, 1996, and the principles relevant to climate justice as well as indicate instances where the Comment may be insufficient to this task.
The influence of international and regional African law on the Constitutional Court’s jurisprudence concerning the child’s right to basic education
Strohwald, Annemarie (NISC (Pty) Ltd, 2025)
The right to education is viewed as an empowerment right and emphasises that education prepares and enables children to participate in their communities and to be active rights-holders. The right to education also enables the realisation of other human rights. The article examines the Constitutional Court’s jurisprudence and establishes how and to what extent the Court has engaged and relied on international and African regional law in interpreting and providing scope to the right to basic education as recognised in section 29(1)(a) of the Constitution. Central to this analysis will be the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. Not only is South Africa a party to both these instruments but, as seen from the Constitution itself, international law is recognised as a valuable interpretative source for the Bill of Rights. From the jurisprudence, it is clear that the courts have played a significant role in interpreting the right to basic education and, as a result, there has been an incremental approach utilised providing meaning and scope to the right to basic education. The article engages with how international and African regional law can advance the jurisprudence on the right to basic education. My analysis of the case law highlights a lack of a systematic methodology as to how to use international law and African regional law. International law, I demonstrate, is generally preferred over African regional law in the Court’s jurisprudence. In my view, this trend fails adequately to root the interpretation of the right to basic education within an African framework. I thus demonstrate the limited use of international and African regional law in the court’s jurisprudence and the opportunities such a usage can have to assist in developing the substantive content of the right as well as addressing practical implementation challenges.
'My child, my choice' : are parents dutybound to vaccinate their children?
Hager, Liesl (Pretoria University Law Press, 2025)
In this article I explore if parents are dutybound to vaccinate their children with specific reference to section 28 of the Constitution and the relevant provisions of the Children’s Act that give effect to section 28. To determine if parents are duty-bound to vaccinate their children, I first briefly inspect if there are any laws in South Africa expressly mandating childhood vaccination. The focus of this article centres around the question of whether parents have a duty to vaccinate their children, as inferred or implied from the body of existing and legally recognised children’s rights and in conjunction with parental rights (and correlating duties). I investigate whether vaccination is a basic health care service, and if parents are then dutybound to realise the child’s right to basic health care services; if non-vaccination possibly amounts to child abuse and/or neglect; and the best interests of the child in the context of vaccination. The article also considers the cultural and religious rights and freedoms of parents and how these interplay with a possible parental duty to vaccinate. It further offer avenues for further research and the need for legislative reform on this issue.
Humans v machine : The AFSA-UP moot court experiment with ChatGPT 4.0 (April 2024)
Baboolal-Frank, Rashri; Papadopoulos, Sylvia; Schoeman, Elsabe (Pretoria University Law Press, 2025)
The legal profession is being challenged to harness the predictive capabilities of AI as a fundamental tool reshaping the future of law. New technologies require a reimagining of the essence of legal services. Against this background, the University of Pretoria, Faculty of Law was invited to use ChatGPT to generate an arbitration award for the 2024 Johannesburg Arbitration Week (JAW) Young AFSA Moot. The AI-generated award was then juxtaposed with an award produced by a panel of expert human arbitrators. The primary objective of this experiment was to gauge the effectiveness and reliability of AI in producing legal judgments, a domain traditionally dominated by human expertise. This article discusses the findings and implications of this experiment, illuminating the evolving legal landscape and AI’s profound impact on the future of legal practice. It discusses the concept of generative AI and its application in law. It then explains and reflects on the arbitration award experiment. It goes on to analyse key issues as produced by ChatGPT and the human arbitrators. The article suggests several aspects that must be considered in the context of generative AI and legal practice and education. It concludes by emphasising that the integration of AI in legal practice promises to revolutionise the field, offering unprecedented efficiency and accuracy. However, for this transformation to be effective and ethically sound, both legal education and practice must evolve substantially.
Legal pedagogy, practice and curriculum transformation : what does the future hold and look like?
Maimela, Charles (Pretoria University Law Press, 2025)
In an era marked by rapid technological innovation and complex socio-political shifts, legal education stands at a critical crossroads. This timely publication explores the imperative for a curriculum that is both responsive and resilient – capable of adapting to the evolving needs of students, institutions, and society at large. Blending theoretical analysis with practical insight, the book offers forward-thinking strategies to navigate the multifaceted challenges of curriculum transformation. Drawing on the lived experiences and reflections of law educators across diverse institutions, it provides a unique lens into how curriculum innovation can enhance teaching, learning, and research in the legal academy. More than a commentary, this book is a call to action – a vital resource for educators, academic leaders, and policymakers committed to ensuring the continued relevance, excellence, and social responsiveness of legal education in the 21st century.
Road works ahead : the on-going discourse regarding the use of puberty blockers for transgender children
Baird, Sophy B. (Brill Academic, 2025-03)
This article examines the intersection of transgender children’s rights and gender-affirming care. The Dutch Protocol, renowned for its comprehensive and patient-centred approach, serves as a pivotal framework for providing gender-affirming care to transgender youth. However, amidst the growing discourse on transgender rights and ethical considerations in health care, questions arise regarding the child’s right to explore their gender identity. There is an emphasis on respecting the right of the child to preserve their identity as well as the right of the child to the enjoyment of the highest attainable standard of health in terms of Articles 8 and 24 of the United Nations Convention of the Child. In the recent uptake of issues regarding gender-affirming care for transgender children, there are jurisdictions which we will explore to determine the prevailing perspectives and standard of care. Namely, the Netherlands in light of the Dutch Protocol, the United Kingdom in the wake of the Cass Report and the United States of America amidst the current political climate which has seen its “affirmative” model for gender-affirmative care being called into question. Drawing on interdisciplinary perspectives, this article explores key themes and dilemmas at the nexus of transgender children’s rights and gender-affirming care.
Somewhere over the rainbow : an analysis of intersex gender-normalising surgery in Kenya, Uganda and India
Baird, Sophy B. (Brill Academic, 2025-12)
This research pertains to the rights of intersex children in the Global South. Kenya presents an interesting comparison as there has been litigation concerning intersex children. The 2014 case of Baby ‘A’ presents a wealth of knowledge. The jurisprudence developed in this regard touches on some of the provisions in the United Nations Convention on the Rights of the Child i.e. the four important general principles identified therein. These general principles are crucial in protecting the rights of vulnerable children and issues of gender, gender identity and sex – in particular, intersex children. In Uganda, the situation is quite dire. There are interesting questions regarding the right to health care, bodily autonomy, possible over-reach of medical professionals and legislative over-reach amongst many other issues. A comparison is made with India. In 2019 the state of Tamil Nadu, a court banned such unnecessary gender-normalising surgeries. While not an African country, it provides a comparative nuance in understanding sogiesc issues in the Global South.
Underlying policy considerations for assigning the applicable substantive law in international commercial arbitration
Peprah, Lawrencia Oppong (EDITORA FORUM LTDA, 2024-12)
In international commercial arbitration, when the parties do not choose any law to govern the substance of their disputes, arbitrators are responsible for doing so. The inherent flexibility of the arbitrator’s discretion makes this task critical, as their decision can significantly impact the outcome of the arbitration. This article aims, to examine relevant policies that underlie an arbitrator’s choice of the applicable substantive law in the absence of the parties’ choice. It employs a comprehensive blend of secondary research and analytical methodologies, to identify and evaluate the nature of these policies, highlighting their possible extremes and, or irreconcilable elements. This article highlights the distinction between the direct and indirect methods used to assign the applicable substantive law and questions the practical application of these methods by arbitrators. It also explores relevant policies from three perspectives – a transnational perspective, a party perspective and a jurisprudential perspective. The findings suggest that specific, policy considerations influence the arbitrator’s decision-making process, regardless of the method employed to assign the applicable substantive. By understanding and assessing these policy considerations, arbitrators can make informed decisions when assigning the applicable substantive law in international commercial arbitration.
The rights of transgender children in South Africa to gender-affirming care in the form of puberty blockers
Baird, Sophy B. (Juta Law Journals, 2024)
The provision of gender-affirming care to transgender children has sparked significant discourse within medical, ethical, and legal realms. This contribution examines the evolving conceptualisations of children’s autonomy and decision-making capacity within the context of paediatric health care, with particular attention devoted to the unique challenges posed by gender dysphoria. It also investigates the legal landscape surrounding the rights of transgender children to access gender-affirming care. This contribution advocates for a rights-based approach that prioritises the autonomy and well-being of transgender children in the provision of gender-affirming care, while also acknowledging the complexities and ethical dilemmas inherent in navigating this terrain.
Constitutional rights of women in Ghana : an expansion of the legal framework
Fiattor, Ethel (Unisa Press, 2024-10)
The research paper elucidates the expansion of the legal framework of women’s rights in Ghana to address all forms of discrimination against them. The article considers a three-fold reform process, including a constitutional reform to influence the enactment of an extensive parliamentary Act either domesticating the Maputo Protocol or incorporating its principles. The article acknowledges the existence of some legislation on specific forms of discrimination against women and advocates that these may support the proposed comprehensive Parliamentary Act. The third reform process considers strategic litigation as a means of implementation and compliance.
Addressing inequitable openness in licences for sharing African data and datasets through the Nwulite Obodo Open Data Licence
Okorie, Chijioke Ifeoma; Omino, Melissa (Queensland University of Technology, Faculty of Law, 2025-11)
This article examines the relationship between Standard Public Open Licences (SPOLs) and inequity in the artificial intelligence (AI) innovation ecosystem, focusing on how these licences affect access to and use of African datasets. While SPOLs are widely promoted as tools for democratising data access, they often apply uniform conditions to all users, disregarding disparities in infrastructure, capacity and socioeconomic context. As a result, SPOLs may unintentionally reinforce exclusion and enable extractive data practices that disadvantage communities contributing valuable datasets that they have preserved and curated through historically challenging conditions. The study employs a desktop literature review of primary and secondary sources, complemented by analysis of specific case studies from the Masakhane Research Collective in Natural Language Processing and qualitative vignettes based on real-world experiences to identify inherent and systemic limitations of current SPOLs. The research shows how existing SPOLs, particularly those founded on copyright law, fail to accommodate the positionality of African and similarly situated users in the global data economy. In response, the article introduces the Nwulite Obodo Open Data Licence (NOODL Licence), a novel, tiered SPOL designed to foster equitable openness. NOODL differentiates conditions of use based on users’ geography and development context, incorporating benefit-sharing obligations and context-sensitive terms. It maintains the simplicity and legal clarity of existing SPOLs while addressing their inequities. By critically analysing the overlooked relationship between SPOLs and inequity, this article contributes a practical, context-aware licensing alternative that centres communities. While grounded in the African experience, the NOODL framework offers a replicable model for promoting fairness and inclusivity in global data governance and AI innovation.
Die formeelregtelike grondslag van die ex contractueis vir skadevergoeding weens kontrakbreuk
Cornelius, Steve J. (Juta Law Journals, 2024)
Parties generally enter into contractual relations with the sincere intention to fulfil all the obligations created in terms of their contract. However, for various reasons, parties sometimes do not comply with the terms of their contract. Where a party fails or refuses to perform their obligations as specified in their contract, that party commits breach of contract and the normal consequences for breach then ensue. One of these consequences is that the injured party may institute a claim for damages. The nature of this remedy has been called into question. Is a claim for damages due to breach of contract derived from the contractual relationship between the parties, or is it no more than a delictual claim presented under the guise of contract? The fundamental values underlying the law of contract are consensus and reliance, as well as freedom of contract, sanctity of contract (pacta sunt servanda), good faith and privity of contract. Freedom of contract and sanctity of contract demand that contracts that are freely entered into must be honoured and enforced. From this arises the principle that breach of contract occurs even if the failure or refusal to abide by the contract cannot be attributed to fault in the sense of a wilful disregard of the contract or a negligent failure to abide by the contract. This is in stark contrast with delict, where fault is generally required for liability. Furthermore, reliance and good faith also demand that the parties should honour their obligations in terms of the contract. This relationship based on reliance and good faith is broken when breach occurs, with the result that there is a need to provide redress to the injured party that can be derived from the contractual relationship. Lastly, privity of contract generally limits the effects of the contract, as well as the resultant rights and duties in terms of the contract, to the parties who contracted with each other. There is no such closed notion of privity in delict. The article aims to explore the law of contract from a historical perspective and from a comparative analysis of various jurisdictions today to determine the nature of the claim for damages due to breach of contract. It concludes that there are fundamental differences between a claim for damages due to breach and a claim for damages due to the wrongful and culpable conduct of a third party. As a result, it is clear that the claim for damages due to breach of contract is a claim ex contractu that must be distinguished from delictual claims.
Is the open-ended nature of the common law duty to disclose by an applicant or employee fair and just?
Maimela, Charles; Lepele, Seipati; Mahumela, Tshilidzi (University of Fort Hare, 2024-07-31)
The common law duty to disclose past transgressions could lead to a miscarriage of justice in the form of double jeopardy for the affected individual, resulting in the employee or applicant being without employment for a lifetime. The focus of this paper is not on what was supposed to be disclosed; rather, it is to interrogate the application of the open-ended nature of this responsibility in the context of an employee or applicant seeking new employment. It is argued that the lack of development of this common law duty is not aligned with the constitutional mandate of reconciliation and rehabilitation for past transgressions, which is dominant in the criminal justice system and consumer law, among others. There is no justification for labour law to be an exception. The vacuum in labour law needs to be addressed in order to assist in realising this constitutional mandate and in ensuring that employees and applicants are not held perpetually responsible for past wrongs, with no avenue for reform and re-integration into the workplace. It could be argued that this is in violation of section 22, which stipulates the right to choose trade and profession as protected by the Constitution of South Africa, 1996. Furthermore, the open-ended nature of this duty is also a contributing factor to the high unemployment rate in South Africa and must be addressed urgently.
The extra-judicial ejectment of land intruders : an evaluation of the relation between the possession and home concepts
Marais, Ernst; Muller, Gustav (LexisNexis, 2025-02)
Please read abstract in the article.
Interrogating the right to basic education of undocumented children in the context of the call for their exclusion from public schools in South Africa
Mutu, Perekeme (Nelson Mandela University, 2024-07-07)
The right to basic education is recognised as a fundamental human right that is guaranteed to everyone, including undocumented children under international and domestic law. However, the question needs to be asked whether this right extends to undocumented children living in South Africa when, at the start of every academic calendar, tales of children being denied enrolment in public schools owing to a lack of required identification or birth certificates dominate the media space. Apparent legal contradictions, a lack of proper understanding of extant laws protecting the right to basic education, and a lack of effective cooperation among stakeholders in the education section have continued to affect access to basic education for undocumented children in South Africa. This article reflects on the right to basic education of undocumented children in the context of the legality of the lingering call for the exclusion of undocumented children from public schools in South Africa.

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