Browsing by Author "Strode, Ann Elaine."

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Battered, dejected, ejected and rejected: the rights of HIV positive women to be protected from violence in Eswatini.
(2020) Mavundla, Simangele Daisy.; Strode, Ann Elaine.; Essack, Zaynab.
Eswatini has, as of 2018, the highest prevalence of HIV and AIDS in the world. The prevalence has continued to rise, climbing from 21 per cent of the population in 2016 to over 27 per cent in 2018. Violence against women (VAW) is also on the increase, attributed to the prevalence of gender inequality in the country. Research has shown a viable link between HIV and VAW. This is because women are most often powerless and have no voice, agency or control over their lives and bodies. Due to gender inequality, women may be unable to negotiate condom use with their husbands or partners. Women's refusal of males' sexual advances often leads to their violation, underscoring the link between VAW and HIV and AIDS. However, in Eswatini, the implications of this link have not been adequately investigated; hence, the need to investigate women's experiences of VAW to find out how well the legal and policy frameworks of Eswatini respond to VAW. The study answers the following essential questions: What are the experiences of women living with HIV (WLH) regarding violence? Is the Eswatini legal and policy framework cognisant of the nexus between VAW and HIV? How does the legal framework protect HIV positive women from VAW and its consequences in light of international law? This study found that violence against HIV positive women was multifaceted and involved a wide range of perpetrators. As such, WLH experienced many forms of violence, including stigma and discrimination. Perpetrators of violence against WLH originated from the home front – (private sphere) and then were found in the public sphere. Intimate partners, and family members, as well as community members and healthcare workers, were implicated in violating WLH in one way or another. The findings of this study confirmed that violence and HIV were inextricably interconnected at many levels and that legal remedies were inadequate, to the extent that women did not generally rely on them. Some of the inadequacies included the fact that the laws on marital and cohabiting relationships offered little protection in conflict with the provision in the Constitution provides that 'women have the right to equal treatment with men'. This study argues that Eswatini's social context provides fertile ground for HIV and VAW and their interaction to thrive. It further contends that violence against WLH is a public health concern requiring a public health response. It concludes that violence against WLH is indeed a human rights violation, which requires a human rights response.
The coerced and forced sterilisation of women living with HIV in South Africa: a critical review of existing legal remedies.
(2018) Badul, Chantal Jacqueline.; Strode, Ann Elaine.; Singh, Priya Pravesh.
No abstract available.
Consensual sexual offences : should we make our youth sexual offenders? A critical review of the Teddy Bear case.
(2017) Maharaj, Alisha.; Strode, Ann Elaine.
No abstract available.
Consent laws: sexual reproductive health rights for adolescents in South Africa.
(2019) Lukhele, Maamie Lesizwe.; Strode, Ann Elaine.
No abstract available.
Consent to medical treatment: To what extent does the post 1994 South African legal framework on consent protect patients: a critical review.
(2021) Bango-Rili, Nompumelelo.; Strode, Ann Elaine.
No abstract provided.
A critical evaluation of the laws pertaining to sterilisations and termination of pregnancies: exposing the gaps and threats.
(2021) Mthethwa, Mendy Nolwazi.; Strode, Ann Elaine.; Badul, Chantal Jacqueline.
The right to reproductive health, which is the primary focus of this dissertation, is a component of the right to health. This right has been protected for many years, notably in international human rights instruments, and has over time found recognition in the constitutions of various states, including South Africa. The South African Constitution protects the right to self-determination as well as the right to reproductive health care. In addition to the above, the protection of other Constitutional rights such as the right to dignity, the right to life, the right to equality and the right to access to information further strengthen the right to reproductive health care. The legislature has also given effect to these rights through the enactment of the Choice on Termination of Pregnancy Act (hereinafter referred to as the Choice Act), the Sterilisation Act, as well as the National Health Act. Notwithstanding the state’s efforts to comply with international standards, gaps continue to exist in, firstly, the South African legislative framework and, secondly, the implementation of existing reproductive health laws. These gaps have manifested, inter alia, in women having limited access to termination services; the continued threats and subversion of reproductive health rights; as well as the forceful sterilisation of HIV positive women in KwaZulu-Natal and Gauteng hospitals. These gaps, unfortunately, disadvantage the most vulnerable members of society who rely on public health facilities to enforce their constitutional and legislative rights to reproductive health. Persons affected by these gaps and threats often resort to illegal reproductive health services. It is argued, therefore, that the state has a duty to fulfil and protect reproductive health rights to prevent the inevitable consequence of indirect discrimination against poor women and girls caused by these gaps.
Developing a legal framework that protects and promotes the sexual and reproductive rights of children as described in international law: what can Nigeria learn from South Africa.
(2017) Ehimaun, Benedicta.; Sarumi, Rofiah Ololade.; Strode, Ann Elaine.
No abstract provided.
Do the children act provisions which legalize virginity testing violate any of the constitutional rights of girls?
(2020) Ndebele, Nobuhle.; Strode, Ann Elaine.
No abstract available.
Does the South African law and policy framework facilitate adolescent access to HIV prevention tools?
(2017) Toohey, Jacintha Deleane.; Strode, Ann Elaine.
No abstract provided.
Has the LM and Others v Government of the Republic of Namibia case closed the door on the claim of unfair discrimination by HIV positive women alleging to have been coerced or forced into being sterilised because of their HIV status?: A critical analysis of a possibility of a class action or a public interest action on behalf of South African women living with HIV who have been sterilised without their informed consent.
Khumalo, Lindiwe Rosetta.; Badul, Chantal Jacqueline.; Strode, Ann Elaine.
No abstract provided.
An investigation into critical legal issues surrounding dental botox.
(2020) Pillay, Mathievanan Swamivel.; Strode, Ann Elaine.; Soni, Sheetal Jacqueline.
An unnaturally expressionless, vapid face with skin that appears to be drawn way too tight, is often the image that flashes to mind when we hear the word “Botox”. Yet when done correctly, this aesthetic procedure guarantees to soften wrinkles and brighten the skin, hence it is a popularity among celebrities looking to maintain a youthful appearance. From the ceaseless stream of smooth jawlines and chiselled cheekbones to celebrity plastic surgeons posting images of their work, the age of continuous self-documentation has impelled a unique set of beauty ideals and an intense increase in cosmetic procedures. Whilst most doctors suggest focusing on skin integrity by advising on appropriate beauty regimens, there are exceptions. ‘Botox’ is the exception. Botox (onabotulinumtoxinA), also called botulinum toxin type A, is made from the bacteria that causes botulism. Botox treatments are becoming more extensive and recognised and to some it seems to be an acceptable way to elude the signs of aging. Botox works by relaxing the contraction of muscles by blocking nerve impulses which results in muscle relaxation and softening of wrinkles. According to the American Society of Plastic Surgeons, in 2015, more than 6.7 million Botox procedures were executed, making it the most popular minimally invasive cosmetic procedure. In South Africa Botox is recognised as a prescription-only drug which requires that it should be prescribed by a doctor and administered by a suitably trained and qualified clinician. It is therefore illegal for a person who does not have the requisite qualification, skills and knowledge to administer Botox is a neurotoxin which can cause serious adverse effects if used incorrectly. Before 2007, controversy existed regarding the suitability of Botox in dentistry. Dentists were accused of abandoning their conventional roles of fixing gums and teeth and venturing into administering Botox. There are circumstances when the use of Botox and similar treatments can be deemed to be related to the practice and scope of dentistry. Thus the aim of this thesis is to investigate the critical, legal issues surrounding Dental Botox.
Is section 71 of the National Health Act 61 of 2003 inconsistent with a child’s constitutional rights to bodily integrity and equality?
(2021) Ngcobo, Gcinokwakhe Dan.; Strode, Ann Elaine.
The South African Constitution entitles children to all the basic human rights. In addition, the concept of ‘[a] child's best interests’ (section 28(2)) has been significant in the realisation of other rights contained in the Bill. This concept becomes more meaningful as the child grows older, where it is used to determine the range and limitations of all other competing rights. Maturing children then derive their partial to full self-determination from the rights to dignity, privacy, and freedom of religion, expression, and association. In this study I submitted that the constriction of section 71 into ‘nurturance’ over a broad class of children violates the constitutional right to equality, human dignity, privacy, freedom, and safety of the person when read together with the ratified international and regional treaties relating to the rights of children. Section 71 provisions are deemed unfair because the direct differentiation is linked to the categorisation of a socially vulnerable group [children] by age. Moreover, section 71 failed to confer the equal protection and benefit of the law and to set other measures designed to protect or benefit persons, or groups of persons who are disadvantaged as a result of unfair discrimination. Section 71 lacks a proper set of provisions or rules applying to research involving children, and the power grants and restrictions are not properly balanced to fit the protection and self-determination of children’s rights. Moreover, the general principles that form the basis of children's rights were not fully considered. Principles relating to age, maturity, and stage of development are generally provided to make any law or conduct meaningful to children. The section 71 infringement of the right to equality and bodily integrity cannot be justified through analysis in terms of section 36. The limitations imposed are highly restrictive, unreasonable, and unjustifiable in a democracy based on human dignity, equality, and freedom. There are no less restrictive provisions that allow independent consent for, particularly, maturing children. This is inconsistent with the principle of the child’s best interest contained in the Constitution and the UNCRC. Children have not been treated as individual rights bearers since the parent still stands as the final decisional maker and encroaches on the right of the child to control its body and its uses. In conclusion, section 71 of the National Health Act is unconstitutional.
The protection of the rights of children affected by HIV/AIDS in South Africa and Botswana : a critical analysis of the legal and policy responses.
(2013) Sarumi, Rofiah Ololade.; Strode, Ann Elaine.; Carnelley, Marita.
Abstract not available.
Religion and the law: exploring the boundaries between the right to equality based on sexual orientation and religious freedom.
(2023) Easthorpe, Juanitha Anne.; Strode, Ann Elaine.; Freedman, David Warren.
The intersection of religion and law remains complex. It is not simple to find a solution to an issue that falls within the realm of this area. The right to freedom of religion and equality are constitutionally protected and sometimes these two constitutional rights become competing fundamental human rights. The religious injunction against same-sex marriage is an issue which falls squarely within the complexity of religion and law. With both equality and freedom of religion at odds with each other, it becomes important to balance these rights. This cannot be done without acknowledging the fact that religion has always featured predominantly in our past and influenced many aspects of our lives. However, our history of past discrimination directed at vulnerable groups must also be acknowledged. It is for this reason that this thesis examined the legal soundness of the injunction against samesex marriage in some Christian denominations. With our constitutional objective being to bring about a cohesive society, a strong presumption in favour of equality must be considered. On this basis the thesis found that the religious injunction against same-sex marriage was unconstitutional and therefore legally unsound. In dealing with these matters our courts need to approach the issue sensitively by considering transformative remedies without criminal sanctions. It is for this reason that the thesis also attempted to identify the most appropriate litigation strategy that affected parties can rely on when challenging the injunction against same-sex marriage. The Equality court was deemed the most appropriate forum for resolving disputes between religious denominations and their LGBTQI+ congregants. The transformative remedies which the court will consider are potentially available in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Transformative remedies are in principle more acceptable to religious denominations as they refrain from interfering with the core doctrinal beliefs of the church but also allow these religious denominations the time to review their policies and motivate for change. It also minimises the possibility of a split in the church and adheres to the doctrine of constitutional subsidiarity. Iqoqa Ukuxhumana kwenkolo nomthetho kuseyinto enzima ukuyixazulula. Kunzima ukufumana isixazululo odabeni olungena kulezi zinto ezimbili. Inkululeko yenkolo kanye nokulingana yinto evikelwe ngokoMthethosisekelo kanti kwesinye isikhathi lawa malungelo amabili angcina ashayisana namalungelo oluntu. Indlela inkolo ephethe ngayo udaba lwabantu bobulili obufanayo abashadile igcizelela ubunzima bokuhlanganisa inkolo nomthetho. Ukungqubuzana phakathi kokulingana kanye nenkululeko yenkolo kwenza kube nesidingo esikhulu sokucubungulisisa lawa malungelo. Lokhu akusho ukuthi kumele sikhohlwe ukuthi inkolo yinto esikhule ikhona futhi ilawula imvelaphi yethu kanye nokuningi okuthinta izimpilo zethu. Nokho, umlando othinta ukucwaswa nokucindezelwa kwalabo abangenamandla okuzivikela kumele ungalitshalwa. Kungalesi sizathu-ke lolu cwaningo lwacubungula ukuthi kusemthethweni kanjani okushiwo ngabezenkolo namabandla ahlukene mayelana nomshado wabantu bobulili obufanayo. Ngenxa yokuthi uMthethosisekelo ugqugquzela ukubumbana kwemiphakathi eyahlukene, kufanele ukuba ngaso sonke isikhathi kuvikelwe ukulingana kwabantu. Ngenxa yale nkolelo, lo mqingo wocwaningo wathola ukuthi ukucwasa abantu bobulili obufanayo abashadile kuphambene noMthethosisekelo futhi akukho emthethweni wezwe. Ukubhekana nalezi zinkinga, izinkantolo zethu kumele lolu daba zilubuke ngeso elivulekile futhi zilethe izinguquko ezingancikile kuphela emthethweni. Kungalesi sizathu-ke lo mqingo wocwaningo uphakamise izindlela zokungenelela kulolu daba ngokuthi labo abathintekayo bazilandele uma belwa nalokhu kucwaswa nokubukelwa phansi kwamalungelo abantu bobulili obufanayo abashadile. INkantolo yoKulingana iphakanyiswe njengefanele ukubhekana nokuqhamuka nezisombululo zengxabano phakathi kwamabandla ezenkolo kanye namalungu esonto aqhamuka emphakathi we-LGBTQI+. Izindlela zokungenelela eziza nezinguquko inkantolo engazilandela zikhona emthethweni ogqugquzela ukulingana nokunqanda ukuphathwa ngendlela engafanele, iPromotion of Equality and Prevention of Unfair Discrimination Act 4, ka-2000. Ukungenelela okuza nezinguquko kufanele kwamukeleke emabandleni ezenkolo ngoba kunganqanda ukuba inkolo igxambukele ezinkolweni zabantu mayelana nendlela abaphila ngayo futhi kunganikeza amabandla ezenkolo ithuba lokuba abuyekeze imigomo yamasonto ukuze kube khona izinguquko. Lokhu kungaphinde kugweme uqhekeko emabandleni, kuqinisekise nokulandelwa kwezimfundiso zoMthethosisekelo.
Righting laws: An appraisal of human rights in the context of HIV and their applicability to the normative content and implementation of HIV-specific laws in sub-Saharan Africa.
(2017) Eba, Patrick Michael.; Strode, Ann Elaine.
Check the Thesis for abstract.
The rights and regulation of saviour siblings in South Africa: an ethical and jurisdictional comparative.
(2020) Gumede, Nonduduzo Penelope.; Strode, Ann Elaine.; Singh, Jerome Amir.
The creation of saviour siblings is contentious; therefore, the dissertation determines whether it is ethically justifiable to create saviour siblings and analyses the associated conflicting interests. It is crucial to do this as the child's best interests are of international, regional and national importance. Moreover, the dissertation explores the regulation of the creation of saviour siblings in other jurisdictions and compares it with that of South Africa. The purpose of this is to determine if there are any lessons that South Africa can learn, especially as the procedure of saviour siblings has potential harms. Lastly, the purpose of the dissertation is to assist the lawmakers in the sphere of medical law and children’s rights to look at the existing legislation to ensure that there are no gaps to avoid the violation of rights.
Scaling up HIV testing in resource-constrained settings: debates on the role of VCT and routine ‘opt-in or opt-out’ HIV testing.
(South African Medical Association., 2005) Strode, Ann Elaine.; Van Rooyen, Heidi.; Heywood, Mark.; Abdool Karim, Quarraisha.
Scaling up of the numbers of people voluntarily undergoing HIV testing has become vital, especially in resource-constrained settings, where the need for knowledge of HIV status for both prevention and care is critical. The reality is that for most people in Africa, access to HIV testing and to voluntary counselling and testing (VCT) has been very limited, and this has human rights implications – missing the opportunity to be diagnosed with a disease that is now well understood, manageable and treatable means certain death. The key challenge in our current context is how scaling up of HIV testing should be done. In responding to this challenge, we are guided by Gruskin and Loff,1 who state that ‘A human rights approach mandates that any public strategy, whether or not rights are to be restricted, be informed by evidence and widely debated. This approach protects against unproved and potentially counterproductive strategies, even those motivated by the genuine despair in the face of overwhelming public health challenges.’ This article describes the arguments and discussion raised during a session on models for increasing access to HIV testing at the 2nd National Conference on HIV/AIDS held in Durban in June 2005. It describes the legal framework for HIV testing in South Africa, frames the issues at the heart of the debate, and describes and discusses the various models of HIV testing, routine HIV testing, VCT and mandatory or compulsory HIV testing, within the context of HIV prevention and care. It concludes with recommendations.
Tackling obstetric violence in South Africa through legal reform: exploring an integrated rights-based approach.
(2020) Reheman, Zakiyya.; Strode, Ann Elaine.; Badul, Chantal Jacqueline.
Abstract available in PDF.
The organic development of a legal writing and tutoring programme at the University of KwaZulu-Natal School of Law: reflections on a sustainable, structured approach to teaching and tutoring legal writing in South African law schools.
(2022) Crocker, Angela Diane.; Strode, Ann Elaine.; Freedman, David Warren.
Abstract Although much advocacy work takes place in courts, a considerable amount of the background work and day-to-day tasks of lawyers is writing and clearly articulating various legal positions. Thus, the ability to write like a lawyer is very important. However, legal academics as well as the law profession have consistently made the point that there is a real issue with the quality of legal writing of law students. This is a problem that many South African Universities are grappling with, and which must be addressed urgently. An examination of the literature, through the lens of four iterations of legal writing programmes implemented at the University of KwaZulu-Natal School of Law, Howard College, shows that the key drivers of good legal writing are critical thinking and student motivation. If these principles are incorporated into the structure of the programme, it will help students to be motivated to think critically, which will enable them to engage on a sufficiently deep level with the material being studied. This in turn should help to produce written work that is persuasive. Thus, it is submitted that the design of a legal writing programme should include four teaching principles: the constructive alignment of the programme; a commitment to learner participation; the implementation of conversations in feedback; and the transformative contextualisation of programme materials. However, the real question is how can a sustainable, structured approach to teaching and tutoring legal writing in South African law schools be achieved with large classes of novice legal writers and legal lecturers sometimes having overwhelming teaching loads and competing academic commitments? It may seem like an impossible task, but it is not if the legal writing programme is pedagogically well-designed and administratively well-structured. This thesis submits that the answer lies in training senior law student peer tutors to assist in a legal writing programme. Iqoqa Nakuba umsebenzi wokushushisa wenzeka enkantolo, umsebenzi omningi wenzeka usuku nosuku emahhovisi kuvaliwe lapho abameli bechitha isikhathi esiningi bebhala futhi behumusha imithetho eminingi elandelwayo. Ngakho-ke, ikhono lokubhala njengommeli libaluleke kakhulu. Kodwa-ke, izifundiswa zomthetho kanye nendima yezomthetho ihlale ikhala njalo ngekhono lokubhala elivezwa ngabafundi beziqu eziphansi kwezomthetho. Lena yinkinga amanyuvesi amaningi aseNingizimu-Afrika abhekene nayo futhi okumele ilungiswe ngokushesha. Ukubuyekezwa kwemibhalo, kusetshenziswa indlelakubuka yezinhlelo zomthetho eqalwe eSikoleni seZomthetho eNyuvesi yaKwaZulu-Natali, eHoward College, kuveze ukuthi izinto ezibalulekile ekugqugquzeleni indlela enhle yokubhala kwezomthetho ukukwazi ukucabangasakuhlaziya kanye nokuzimisela. Uma lawa makhonsepthi ethathwa njengaqavile ekubunjweni kohlelo lokufunda umthetho, angalekelela abafundi ukuba bakwazi ukuba yingxenye yokufunda ngendlela esezingeni eliphezulu kulokho okufundwayo. Ukugxila ekucabangeni njengommeli kungalekelela ekukhiqizeni imibhalo enohlonze futhi kungakhuthazi ukugxila kakhulu emaphutheni olimi nohlelo kodwa engqikithini yomsebenzi. Ngakho-ke, kuphakanyiswa ukuba izinhlelo zokufundwa komthetho zifake lezi zinsika ezine: indlela eya phambili yokuhlelwa kwezinhlelo zokufunda; ukuzibophezela kwabafundayo ukuba bafunde; ukukhuthaza izingxoxo; nokuvumela inguquko ekuhlanganisweni kwezinsizakufunda. Nokho, umbuzo omile ukuthi le ndlela ebalulwe ngenhla ingasebenza kanjani ezikoleni zomthetho eNingizimu-Afrika ngenxa yokugcwala kwamaklasi abafundi abasafufusa bokubhalwa komthetho futhi uma abafundisi bebhekene nomthwalo wokufundisa ongaphezu kwamandla abo kanye nenggcindezi yomsebenzi abawenzayo? Kuzwakala njengento okungelula ukuba yenzeke, kodwa akunjalo, inqobo nje uma izinhlelo zokufunda umthetho zilandela indlela okuyiyona yokufundisa futhi zihlanganiswe ngobunyoninco. Lolu cwaningo luphakamisa ukuthi kuqeqeshwe abafundi bezomthetho asebemnkantshubomvu ukuba babe ngabasizi noma abalekeleli balabo abasafufusa kwezokubhalwa komthetho.
The use of the criminal law in responding to the exposure or transmission of HIV to others: a comparative analysis of the laws in Botswana, South Africa and Zimbabwe.
(2021) Singh, Nesira.; Strode, Ann Elaine.
No abstract provided.