RRLLB81 Assignment 3 FINAL PORTFOLIO (COMPLETE ANSWERS) Semester 2 2024

RRLLB81 Assignment 3 FINAL PORTFOLIO (COMPLETE ANSWERS) Semester 2 2024 RESEACH TOPICS INCLUDED ; 100% TRUSTED Complete, trusted solutions and explanations. For assistance, Whats-App 0.6.7-1.7.1-1.7.3.9. Ensure your success with us... TOPIC 1: INSURANCE LAW LIABILITY INSURANCE IN SOUTH AFRICAN LAW AS A COMPLEX FORM OF INDEMNITY INSURANCE Background There are several classifications of insurance; the most common is the distinction between indemnity insurance (also referred to as non-life insurance) and non-indemnity insurance (also referred to as life insurance). With indemnity insurance, the insurer indemnifies the insured for loss or damage suffered as a result of the happening of the uncertain event insured against. First-party insurance and third-party insurance are examples of indemnity insurance. The distinction between these two types of insurance centre on the nature of the object of the risk and the object of insurance. First-party insurance (such as property insurance) concerns assets in the insured’s estate. Third-party insurance (such as liability insurance) concerns the liabilities of the insured’s estate. Liability insurance concerns an insured’s insurance of its legal liability towards a third party for the latter’s loss. There is a lack of understanding of the intricacies of liability insurance and its unique challenges in South African insurance law. Legal issues arise in respect of the liability insurer’s duty to indemnify its insured, and in relation to the liability insurer’s conduct of the defence and settlement of third-party claims brought against the insured defendant. Liability insurance has a complex nature as third-party insurance, which involves legal obligations between multiple parties. There is also a lack of statutory regulation of the distinctive contractual aspects of liability insurance. Furthermore, limited authority exists on contentious legal aspects as a result of the relatively small number of judicial decisions in this field of law. It is evident that liability insurance constantly evolves as new grounds of liability emerge and new insurance products develop in response to the changing demands of society. RRLLB81/103/2/2024 43 Suggested reading material Cases Truck and General Insurance Co Ltd v Verulam Fuel Distributors CC 2007 (2) SA 26 (SCA) Van Immerzeel v Santam Ltd 2006 (3) SA 349 (SCA) Venfin Investments (Pty) Ltd v KZN Resins (Pty) Ltd t/a KZN Resins [2011] 4 All SA 369 (SCA) Legislation Insolvency Act 24 of 1936 Insurance Act 18 of 2017 (see Schedule 2 table 2 on the class and sub-classes of liability insurance) Books Reinecke MFB, Van Niekerk JP and Nienaber PM, South African Insurance Law (LexisNexis 2013) Nagel CJ and Kuschke B (eds), Commercial Law (6th edn, LexisNexis 2019) Journal Articles Jacobs W, ‘Liability Insurance in a Nutshell: Simplified Complexities or Complex Simplicities?’ (2009) 21 SA Merc LJ 202 Van Niekerk JP, ‘Successive but Overlapping “Claims-Made” Policies and a Question of Quantum’ (2006) 18 SA Merc LJ 383 Van Niekerk JP, ‘The Scope of Application of Section 156 of the Insolvency Act: Within or beyond the Realm of Indemnity (Liability) Insurance Contracts: Venfin (Pty) Ltd v KZN Resins (Pty) Ltd t/a KZN Resins’ (2010) 22 SA Merc LJ 453 TOPIC 2: INSOLVENCY LAW TRANSFORMATIVE CONSTITUTIONALISM AND REHABILITATION IN SOUTH AFRICAN INSOLVENCY LAW Background Initially, Insolvency Law did not recognise a discharge of unpaid debt of paramount importance. However, the discharge that provides the debtor with some kind of a fresh start has grown in importance in many modern insolvency regimes internationally. In South Africa rehabilitation, which can provide for a fresh start, may take anything from six months to ten years, and achieving it can be onerous for an insolvent debtor. Insolvency restricts the activities of a debtor in many ways economically and in status between sequestration and rehabilitation. The rehabilitation provisions may be too burdensome in our modern era and in view of international developments. A further consideration is that it is only sequestration followed by rehabilitation that grants an overburdened debtor a discharge of pre-sequestration debt. No other debt relief measures provide for a discharge and consequently a fresh start. So central to the rehabilitation of the debtor is the concept of a fresh start for the insolvent, who is generally freed from his pre-sequestration debts and the restrictions on him that result from sequestration. 44 A constitutional question that may arise in connection with the rehabilitation of the insolvent concerns the time taken for rehabilitation of individuals (natural persons) to occur. On the one hand, in South African law automatic rehabilitation is generally provided after 10 years from the date of sequestration. On the other hand, rehabilitation may take place in periods of less than 10 years, depending on whether the particular requirements of the Insolvency Act are met. Therefore, rehabilitation may be applied for after a period of six months has elapsed since the sequestration date and no claims have been proved against the insolvent estate. These South African periods in what is a creditor-friendly system may be contrasted with the shorter periods which are to be found in some more debtor-friendly foreign jurisdictions. The constitutional challenge would be based on the argument that it is "unreasonably burdensome", as contrasted with foreign developments, for the South African insolvent individual to be required to continue to account to the trustee for economic activities during the sequestration period. However, this again will have to be weighed up against the limitation clause in the Constitution if the possible infringement of an insolvent debtor's rights is challenged in the courts. Suggested reading material Cases Grevler v Landsdown NNO 1991 (3) SA 175 (T) Ex Parte Le Roux 1996 (2) SA 419 (C) Ex Parte Oosthuizen [2012] 4 All SA 408 (NWM) Ex Parte Van Zyl 1991 (2) SA 313 (C) Books Smith A, Van der Linde K and Calitz J, Hockly’s Law of Insolvency, Winding-up and Business Rescue (10th edn, Juta 2022) Fletcher IF, The Law of Insolvency (4th edn, Sweet & Maxwell 2009) Boraine A and Evans R, ‘The Law of Insolvency and the Bill of Rights’ in The Bill of Rights Compendium (Lexis Nexis 2009) para 4A8 Journal Articles Roestoff M and Coetzee H, ‘Debt Relief for South African NINA Debtors and What Can be Learned from the European Approach’ (2017) 50 CILSA 251 Legislation Constitution of the Republic of South-Africa, 1996 Insolvency Act 24 of 1936 RRLLB81/103/2/2024 45 TOPIC 3: INTELLECTUAL PROPERTY LAW THE INTERRELATIONSHIP WITH ARTIFICIAL INTELLIGENCE AND INTELLECTUAL PROPERTY Background The recent rapid advancement of technology is slowly being recognised as a gamechanger in human history. Generative technology in the form of Artificial Intelligence (AI) can now be used to perform a myriad of human functions ranging in difficulty and complexity. AI can now be used to create inventions and works that not only mimic but also rival human creations. The seamless integration of AI across diverse industries has sparked a paradigm shift in business and creative work processes. While these technological advancements present opportunities for innovation, cost effectiveness and efficiency, they simultaneously pose complex challenges in the realm of Intellectual Property Law. The intersection between AI and Intellectual Property manifests several problems in all areas of Intellectual Property, namely: Copyright, Trademark, Design and Patent laws. AI technology is now being used to create inventions and works autonomously, with minimum human input or creativity. Intellectual Property law has always been known an umbrella term to describe products of the human intellect. Thus, it is debatable whether works created from AI, with minimal or no human intellect, are subject to Intellectual Property protection, and whether current Intellectual Property laws allow for inventions and works created by AI to acquire Intellectual Property rights. Suggested reading material Books Dean O and Dyer A (eds), Introduction to Intellectual Property Law (OUP 2014) Ncube CB and others (eds), Artificial Intelligence and the Law in Africa (LexisNexis 2023) Cases Haupt v Brewers Marketing Intelligence (Pty) Ltd 2006 (4) SA 458 (SCA) MoneyWeb (Pty) Ltd v Media 24 Ltd [2016] 3 All SA 193 (GJ); 2016 (4) SA 591 (GJ) Legislation Copyright Act 98 of 1978 Patents Act 57 of 1978 Trade Marks Act 194 of 1993 Journal Articles Khan R and Gotora N, ‘One (Innovation) Flew over the Law’s Head: The Intersection of Artificial Intelligence and Copyright’ (2023) 11 South African Intellectual Property Law Review 72 Ncube CB and Oriakhogba DO, ‘Monkey Selfie and Authorship in Copyright Law: The Nigerian and South African Perspective’ (2018) 21 PELJ 1 Ndlovu L, ‘Enhancing the Value of Patents as Corporate Assets in South Africa: How Can Artificial Intelligence (AI) Assist?’ (2021) 24 PELJ 1 46 Other Sources of Interest Naruto v Slater 2016 WL 362231 Telstra Corporation v Phone Directories Co Pty (2010) FCA 11 102 PRIVATE LAW TOPIC 1: FAMILY LAW THE PROTECTION OF THE RIGHTS OF WOMEN IN CUSTOMARY MARRIAGES IN SOUTH AFRICA THROUGH THE RECOGNITION OF CUSTOMARY MARRIAGES ACT 120 OF 1998 Background The Recognition of Customary Marriages Act 120 of 1998 (RCMA) was introduced on 15 November 2000. The RCMA was promulgated not only to provide full recognition to customary marriages but also to provide spouses in customary marriages with equal status and capacity. However, 24 years later it is evident that the interventions in the RCMA do not protect women in customary marriages adequately. Critically evaluate the protection of women’s rights in terms of the Recognition of Customary Marriages Act 120 of 1998 and explain whether the Act adequately protects the rights of women in customary marriages in South Africa. Relevant aspects include the requirements for a customary marriage; the uncertainty regarding the proof of the validity of customary marriages; the lack of registration of customary marriages; the patrimonial consequences of customary marriages; divorce and its consequences. Suggested reading material Journal Articles Bakker P, ‘Gender Equality in Customary Marriages: Is the Deregulation of Customary Marriages the Solution?’ [2023] Acta Juridica 152 Johnson E, ‘The Active Role of South Africa’s Constitutional Court in Advancing Women’s Rights and Proprietary Interests in the Customary Law of Marriage’ [2023] Acta Juridica 46 Kovacks RJ, Ndashe S and Williams J, ‘Twelve Years Later: How the Recognition of Customary Marriages Act of 1998 is Failing Women in South Africa’ [2013] Acta Juridica 273 Books Rautenbach C, Introduction to Legal Pluralism in South Africa (6th edn, LexisNexis 2021) Cases Ramuhovhi v President of the Republic of South Africa 2018 (2) BCLR 217 (CC); 2018 (2) SA 1 (CC Sithole v Sithole 2021 (6) BCLR 597 (CC); 2021 (5) SA 34 (CC) Tsambo v Sengadi [2020] ZASCA 46 RRLLB81/103/2/2024 47 Legislation Recognition of Customary Marriages Act 120 of 1998 TOPIC 2: LAW OF PERSONS THE HISTORICAL POSITION AND RECENT DEVELOPMENTS REGARDING THE ACQUISITION OF PARENTAL RESPONSIBILITIES AND RIGHTS BY SAME-SEX LIFE PARTNERS WHO HAVE CHILDREN VIA IN VITRO FERTILISATION Background Ayanda and Buhle are involved in a same-sex permanent life partnership. Ayanda and Buhle underwent in vitro fertilisation: Buhle’s ova (eggs) were fertilised with donor sperm, and the embryos were transferred to Ayanda’s uterus. A successful pregnancy resulted in the birth of twin boys, Zuko and Zukile. With reference to authority, discuss the historical position and recent developments regarding the acquisition of parental responsibilities and rights by same-sex life partners who have children via in vitro fertilisation. Also advise Ayanda and Buhle on the issue of their parental responsibilities and rights in respect of Zuko and Zukile. Additional Information Students should note that Heaton J, The South African Law of Persons (6th edn, LexisNexis 2021) refers to the position before the Constitutional Court decision in VJV v Minister of Social Development 2023 (10) BCLR 1250 (CC), 2023 (6) SA 87 (CC). However, as students are expected to discuss the historical position, it is important that they consult the textbook, as well as the repealed Children’s Status Act 82 of 1987. They should then indicate how the decision in VJV v Minister of Social Development 2023 (10) BCLR 1250 (CC), 2023 (6) SA 87 (CC) has affected the legal position. Suggested reading material Books Heaton J, The South African Law of Persons (6th edn, LexisNexis 2021) Journal Articles Louw A, ‘Lesbian Parentage and Known Donors: Where in the World are We?’ 2016 (133) SALJ 1 Legislation Children’s Act 38 of 2005 Children’s Status Act 82 of 1987 (repealed) Constitution of the Republic of South Africa, 1996 Cases J v Director-General, Department of Home Affairs 2003 (5) BCLR 463 (CC) VJV v Minister of Social Development 2023 (10) BCLR 1250 (CC); 2023 (6) SA 87 (CC) 48 TOPIC 3: LAW OF DELICT LITIGATION PERTAINING TO MINING: A DELICTUAL PERSPECTIVE Background Read the fictitious scenario below and answer the research question that follows: Scenario A mining site began operations in Kloof near Carletonville with the purpose of extracting and producing gold. The process of extraction concerns digging out large quantities of rock to access gold deposits. As part of the mining process, ore is mined and chemically processed to separate gold from unwanted materials. The processes involved in extracting gold deposits and chemically treating ore have resulted in airborne respirable dust and gases being released into the atmosphere, which encompasses the Kloof community, affecting its residents. Kloof community members were not forewarned of the plumes of smoke, dust and gases that would be polluting the air. Community members with underlying illnesses became severely ill with a lung disease called pneumoconiosis because of their exposure to airborne respirable dust. As a result, these community members cannot work and provide for their dependants. In addition, miners employed by the mining company have also fallen severely ill with pneumoconiosis despite wearing the necessary personal protection equipment for mining and following mining health and safety protocols. Similarly, to the affected Kloof residents, these ill miners are unable to work and provide for their families. REQUIRED: As a legal researcher, discuss how the Law of Delict may be applied to address human rights violations experienced by residents in mining communities, focusing on health risks from environmental pollution, physical hazards, and the socio-economic challenges associated with mining operations. In your research, refer to the relevant authority. NOTE TO STUDENTS: • In your research, you must identify the applicable human rights potentially violated. • Identify and apply the relevant common law remedy to the facts of the scenario. • Refer to relevant case law. • Lastly, you should give an opinion whether the community members of Kloof and the miners will be successful with the identified common law remedy. Suggested reading material Books Neethling J and Potgieter JM, Law of Delict (8th edn, LexisNexis 2020) Journal Articles Chauhan R, ‘Social Justice for Miners and Mining-Affected Communities: The Present and The Future’ (2018) Obiter 345 RRLLB81/103/2/2024 49 Legislation Constitution of the Republic of South Africa, 1996 Mine Health and Safety Act 29 of 1996 National Environmental Management Act 107 of 1998 Occupational Health and Safety Act 85 of 1993 Cases City of Johannesburg Metropolitan Municipality v Hlophe 2011 (6) SA 134 (CC); 2011 (12) BCLR 1225 (CC) Mankayi v AngloGold Ashanti Ltd 2011 (5) BCLR 453 (CC) Transnet Ltd t/a Metrorail v Witter 2008 (6) SA 549 (SCA); [2009] 1 All SA 164 (SCA) Criminal and Procedural Law TOPIC 1: CRIMINAL LAW A CRITICAL LEGAL PERSPECTICE ON UKUTHWALA AS A GENDER-BASED VIOLENT CRIME IN SOUTH AFRICA Background Section 9(1) of the Constitution guarantees everyone equality before the law and the right to equal protection and benefit of the law. Section 9(3) of the Constitution prohibits the state from unfairly discriminating against anybody on the ground of, inter alia, race, gender religion and culture. Crimes have often been condoned in the past under the guise of culture. Physical violence is perpetrated daily between various individuals in different scenarios, including parental chastisement, gender-based violence and ukuthwala. The courts were granted the opportunity to adjudicate on various forms of physical violence before. Parental chastisement was declared unconstitutional in Freedom of Religion South Africa v Minister of Justice and Constitutional Development 2020 (1) SACR 113 (CC) and gender-based violence was again recently condemned in AK v Minister of Police 2022 (11) BCLR 1307 (CC). Ukuthwala as a traditional practice under customary law has, however, not yet had the same extent of exposure from a criminal law point of view. The incorrect practice of ukuthwala reinforces gender inequality and constitutes serious gender-based crimes such as rape, kidnapping and child trafficking. The commission of these crimes violates various constitutional rights. South Africa’s constitutional dispensation continuously demands a re-evaluation of defences in criminal law. The concept of ‘consent’ should be evaluated against the constitutional rights to equality before the law and not be subjected to unfair discrimination on the ground of culture. The evaluation of the cultural defence of ukuthwala by the court in S v Jezile 2015 (2) SACR 452 (WCC), S v Osabiya (CC47/2019) [2021] ZAGPPHC 716 (21 October 2021) and, most recently, Mbhamali v S [2022] 1 All SA 488 (KZD) is a huge judicial advance in the fight against gender-based violence in South Africa. The Constitutional Court held in Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938; 2001 (10) BCLR 995 (CC) [62] that ‘few things can be more important to women than freedom from the threat of sexual violence’ and in Tshabalala v 50 S; Ntuli v S [2019] ZACC 48; 2020 (5) SA 1 (CC); 2020 (3) BCLR 307 (CC) [61] that ‘[h]ardly a day passes without any incident of gender-based violence being reported. This scourge has reached alarming proportions.’ These statements validate a critical analysis of the recent judgments on ukuthwala. Suggested reading material Cases Mbhamali v S 2021 (2) SACR 627 (KZD); [2022] 1 All SA 488 (KZD) S v Jezile 2015 (2) SACR 452 (WCC); 2016 (2) SA 62 (WCC); [2015] 3 All SA 201 (WCC) S v Osabiya (CC47/2019) [2021] ZAGPPHC 716 (21 October 2021) Books Burchell J, Principles of Criminal Law (5th edn, Juta 2016) Snyman CR, Snyman’s Criminal Law (updated by Hoctor SV, 7th edn, LexisNexis 2020) Journal Articles Mkhize G and Vilakazi F, ‘Rethinking Gender and Conduits of Control: A Feminist Review’ (2021) 35 Image & Text 1 Mwambene L and Mgidlana RH, ‘Should South Africa Criminalise Ukuthwala Leading to Forced Marriages and Child Marriages?’ (2021) 24 PELJ 1 Mwambene L and Sloth-Nielsen J, ‘Benign Accommodation? Ukuthwala, “Forced Marriage” and the South African Children's Act’ (2011) 11 AHRLJ 1 Legislation Children’s Act 38 of 2005 Constitution of the Republic of South Africa, 1996 Criminal Law (Sexual Offences and Related Matters Amendment Act) 32 of 2007 Online sources ‘Gender-Based Violence’ (UNHCR – The UN Refugee Agency) < accessed 16 August 2024 ‘What is Gender-Based Violence?’ (European Institute for Gender Equality, 17 May 2023) < accessed 16 August 2024 TOPIC 2: CRIMINAL LAW MINIMUM SENTENCES AND THE CRIME OF RAPE Background South African criminal courts are inundated with rape trials. In reaction to the high rate of serious crime, the legislature implemented sections 51 to 53 of the Criminal Law Amendment Act 105 of 1997 in terms of which minimum sentences are prescribed for RRLLB81/103/2/2024 51 various crimes. Since its passing, this so-called ‘minimum sentencing legislation’ has been the subject of academic debate. The Gauteng High Court in Sithole v S (A105/2021) [2024] ZAGPPHC 39 (18 January 2024), Masango v S (A175/2021) [2024] ZAGPPHC 64 (5 February 2024) and Nyathi v S (A133/2020) [2024] ZAGPPHC 121 (6 February 2024) has recently considered the sentence of life imprisonment where the rape involved grievous bodily harm, the complainant was 14 years old at the time of the rape and the complainant was raped by an accused and a co-perpetrator. As part of the ongoing academic debate, these recent decisions implore critical academic analysis. Suggested reading material Legislation Constitution of the Republic of South Africa, 1996 Criminal Law Amendment Act 105 of 1997 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 Books Burchell J, Principles of Criminal Law (5th edn, Juta 2016) Snyman CR, Snyman’s Criminal Law (updated by Hoctor SV, 7th edn, LexisNexis 2020) Journal Articles Schoeman M, ‘Recidivism: A Conceptual and Operational Conundrum’ (2010) Acta Criminologica 81 Terblanche SS, ‘Mandatory and Minimum Sentences: Considering s 51 of the Criminal Law Amendment Act 1997’ [2003] Acta Juridica 194 Terblanche SS, ‘Twenty Years of Constitutional Court Judgments: What Lessons are there about Sentencing?’ (2017) 20 PELJ 1 Cases Sithole v S (A105/2021) [2024] ZAGPPHC 39 (18 January 2024) Masango v S (A175/2021) [2024] ZAGPPHC 64 (5 February 2024) Nyathi v S (A133/2020) [2024] ZAGPPHC 121 (6 February 2024) 52 TOPIC 3: LAW OF EVIDENCE THE ADMISSIBILITY OF PHOTOGRAPHS AS EVIDENCE Background Photographs can either be seen as documentary or real evidence, depending on the purpose why they stand to be admitted as evidence in court and whether they are digital in nature. If they are viewed as real evidence, there are no special requirements for admissibility, but if they are seen as documentary evidence, legislation and possibly the common law determine their admissibility. Suggested reading material Cases Motata v Nair 2009 (1) SACR 263 (T) S v Brown 2016 (1) SACR 206 (WCC) S v Ndiki [2007] 2 All SA 185 (CK) Legislation Electronic Communications and Transactions Act 25 of 2002, Chapter III Books Schwikkard PJ and Mosaka TB, Principles of Evidence (5th edn, Juta 2023) Ch 21 Van der Merwe DP (managing ed), Information and Communications Technology Law (3rd edn, LexisNexis 2021) Ch 5 Journal Articles De Villiers DS, ‘Old “Documents”, “Video Tapes” and New “Data Messages” – A Functional Approach to the Law of Evidence’ (part 1) [2010] (3) TSAR 558 De Villiers DS, ‘Old “Documents”, “Video Tapes” and New “Data Messages” – A Functional Approach to the Law of Evidence’ (part 2) [2010] (4) TSAR 720 Hofman J, ‘Electronic Evidence in Criminal Cases’ (2006) SACJ 257 RRLLB81/103/2/2024 53 Public, Constitutional and International Law TOPIC 1: FUNDAMENTAL LAW THE PRINCIPLE OF LEGALITY IN THE SOUTH AFRICAN CONSTITUTION Background The Constitution of the Republic of South Africa, 1996 obliges all organs of state to act based on the enabling authority they possess deriving from the Constitution and/or piece of legislation. In other words, any act or conduct must be in terms of the empowering authority or legislation. Any act or conduct that is made without authority is deemed illegal and irrational. This principle of the Constitution is also supported by administrative law to ultimately, ensure the protection of human rights. Institutions supporting democracy such as the Public Protector, South African Human Rights Commission and the Auditor General must also act in terms of the powers establishing them as well as the Constitution. The importance of the principle of legality to the South African democracy underscores the rule of law and protection of human rights. In recent times, some conduct of government officials has been outside of the law, thus violating the principle of legality. Suggested reading material Books Currie I and De Waal J, The Bill of Rights Handbook (6th edn, Juta 2016) Hoexter C, Administrative Law in South Africa (Juta 2007) Woolman S and others, The Constitutional Law of South Africa, Vol 1 (2nd edn, Juta 2006) Legislation Constitution of the Republic of South Africa ,1996 Promotion of Administrative Justice Act 3 of 2000 Journal Articles Freedman W and Mzolo N, ‘The Principle of Legality and the Requirements of Lawfulness and Procedural Rationality: Law Society of South Africa v President of the RSA (2019 (3) SA 30 (CC))’ (2021) 42 Obiter 421 Konstant A, ‘Administrative Action, the Principle of Legality and Deference – The Case of Minister of Defence and Military Veterans v Motau’ (2015) 7 Constitutional Court Review 68 54 Jurisprudence TOPIC 1: LEGAL PHILOSOPHY THE SOUTH AFRICAN JUDICIAL JURISPRUDENCE OF GENDER EQUALITY IN RAPE Background South Africa has adopted a gender-centred approach in its rape judgments, since becoming a constitutional democracy in 1994. The recognition of unequal power relations in rape adjudication illustrates a gender-responsive judiciary towards equality, dignity, and privacy of persons. The common law definition of rape was understood as the unlawful and intentional sexual intercourse with a woman without her consent. This legal position was in effect for a long time in South Africa, even after 1994 when the Constitution took effect as the supreme law of the country. Even though there had been efforts to reform laws on rape, it was not until the Masiya decision that the law on rape conceptualised rape beyond vaginal penetration to also include anal rape. When the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 took effect, the scope of rape adopted a wider definition. Courts, in the furtherance of the purport and the spirit of the rights enshrined in the Constitution have since interpreted rape within its constitutional prescripts. This means giving effect to the various rights enshrined in the Constitution, including the right to equality, security, dignity and privacy of a person in the conceptualisation of rape. In light of this, rape is viewed as an instrument to exert control, infringing on the various rights of individuals. It is also a hate crime, particularly when it is committed against gender/sexual minorities. This demonstrates the complexity of rape and how gender relations function to create inequality in society. Suggested reading material Books Bonthuys E and Albertyn C, Gender, Law and Justice (2nd edn, Juta 2023) Snyman CR, Criminal Law (6th edn, LexisNexis 2014) Contribution to Book Naylor N, ‘The Politics of a Definition’ in Artz L and Smythe D (eds), Should we Consent? Rape Law Reform in South Africa (Juta 2007) Journal Articles Andrews P, ‘Violence Against Women in South Africa: The Role of Culture and the Limitations of the Law’ (1999) 8 Temple Political & Civil Rights L Rev 425 Bonthuys, E ‘Women’s Sexuality in the South African Constitutional Court Jordan v S 2002 (6) SA 642 (CC) also reported as 2002 (11) BCLR 1117 (CC)’ (2006) 14 Feminist Legal Studies 391 Spies A, ‘Perpetuating Harm: The Sentencing of Rape Offenders Under South African Law’ (2016) 133 SALJ 389 RRLLB81/103/2/2024 55 Legislation Constitution of the Republic of South Africa, 1996 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 Cases Carmichele v Minister of Safety and Security [2001] 10 BCLR 995 (CC) Masiya v Director of Public Prosecutions Pretoria (The State) [2007] 8 BCLR 827 Tshabalala v The State; Ntuli v The State [2019] 2 SACR 38 (CC)