Magistrate redefines common law on rape

An SABC News report says the Lydenberg Magistrates’ Court in Mpumalanga has made a ground-breaking judgment set to re-define SA common law on rape. Passing judgment after 44-year-old Faniel Masiya was found guilty of anal rape of a nine-year-old girl, Magistrate Andries Lamprecht said common law on s exual abuse cases was irrational and unconstitutional. According to common law, a person found guilty of anal rape can only be charged for indecent assault. Lamprecht forwarded the case to the High Court for sentencing. He hoped the judgment would put pressure on Parliament to pass the new Sexual Offences Bill, which lists forced anal penetration as rape.
Full SABC News report

 

Supplied courtesy of Legalbrief Today.

 

Rape ruling develops principles of vicarious liability

Writing in the Mail & Guardian Online, Women’s Legal Centre attorney, Hayley Galgut, comments that the recent Constitutional Court decision in the matter of a woman gang-r aped by on-duty policemen has emphasised the court’s view that ‘few things can be more important to women than freedom from the threat of sexual violence’. The court made this finding while holding that the Minister of Safety and Security was vicariously liable for damages arising from a lawsuit instituted by the r ape survivor. The court held further that the principles of vicarious liability and its application needed to be developed to accord more fully with the spirit, purport and objects of the Constitution. This conclusion implies that the courts will decide whether a case before it is of the kind that in principle should render the employer liable.
Full report in Mail & Guardian Online (subscribers only)

 

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Fathers-4-Justice forms SA chapter

A SA branch of the British founded Fathers-4-Justice (F4J), a civil rights organisation campaigning for children's rights to see both parents and grandparents after a divorce, has been formed. Dr Steven Pretorius the founder of F4J in SA, said the organisation's main goal was to raise awareness of the plight of many parents – mainly fathers who had restricted or no access to their children, reports the Pretoria News. F4J has a lawyer, a former criminal advocate, a social worker and a psychologist on its team. Pretorius said one of the SA chapter of F4J's main goals would be to try to have unfair, punitive laws revisited. In 1998, the Child Care Act was reviewed by judges, who recommended some changes, including shared parenting after divorce. These recommendations have largely been ignored in the drafting of the changes to the Children's Bill, which is before Parliament. ‘We are hoping to lobby a change in the law for the benefit of our children,’ Pretorius said.
Full report in Pretoria News

Supreme Court says foetuses have rights

The Supreme Court of Appeal has handed down a landmark ruling that will allow parents for the first time to claim compensation from the Road Accident Fund for their unborn babies hurt in car accidents. The court, reports The Mercury, made this ruling late last week as Judge Ian Farlam dismissed fears it was bound to open the floodgates on litigation. The case was brought by Mxolisi Richard Mtati on behalf of his baby daughter, Zukhanye. He claimed R1.3m from the Road Accident Fund, saying that an accident on December 20 1989 caused his daughter to be born brain damaged. The Road Accident Fund refused to pay. It said a foetus did not qualify under law to be ‘a person’. In his judgment, Judge Farlam said it ‘would be intolerable if our law did not grant such an action’.
Full report in The Mercury not available online

 

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THE ONE-YEAR ANNIVERSARY OF SAME-SEX MARRIAGE IN THE UNITED STATES

THE ONE-YEAR ANNIVERSARY OF SAME-SEX MARRIAGE IN THE UNITED STATES: SOME THOUGHTS ON RECENT DEVELOPMENTS, AND ON THE FUTURE
By Joanna Grossman

Hofstra law professor Joanna Grossman provides a retrospective on the anniversary of Massachusetts' decision to begin to grant same-sex-marriage licenses. Grossman surveys developments at both the federal and state levels, and notes the issues that still remain for the future. She also explains important decisions relating to the separate issues of whether a state will grant same-sex marriage licenses, and whether it will respect other states' same-sex marriages.

http://writ.news.findlaw.com/grossman/20050517.html