Browsing by Author "Badul, Chantal Jacqueline."

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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.
Conscientious objection to termination of pregnancy in South Africa: analysing the legislative framework governing the rights of patients and healthcare providers.
(2024) Ganesh, Nivida.; Soni, Sheetal.; Badul, Chantal Jacqueline.
The termination of pregnancy (TOP), underpinned by international, constitutional and statutory laws, is an essential medical service available to girls and women in South Africa. Health practitioners involved in TOP provision possess the constitutional right to conscientiously object to such services, but this can conflict with the patient’s right to access reproductive healthcare. Therefore, this doctrinal study, through an examination of relevant legal doctrines and other contextual literature, aimed to scrutinise the legislative framework governing the rights of both patients and practitioners concerning TOP and conscientious objection (CO) within the public healthcare sector in South Africa. The findings show that CO primarily relies on the objecting provider's responsibility to refer patients to an alternative and willing provider. However, when considering this duty against the grim backdrop of a dysfunctional and critically under-resourced public healthcare system, undefined or non-existent referral pathways, public health laws incongruent with socio-economic realities, and a lack of policy monitoring structures, it becomes evident that this regulatory mechanism is inadequate to safeguard the rights of the patient. Since CO has the potential to undermine health rights, and social and reproductive justice, targeted advocacy is imperative at legislative, political, social, and health system levels to establish a realistic rights equilibrium within this normative gap. This is a critical starting point in ensuring that girls and women are not unreasonably impeded in their pursuit of TOP care.
A critical discussion of the 'pay now argue later’ rule in South African tax law.
Muyonjo, Amanda Elizabeth.; Badul, Chantal Jacqueline.; Subramanien, Darren Cavell.
The process of tax recovery is a significant and necessary one. However, it is also fraught with complexities and controversy. The State has enacted laws to facilitate the efficient collection of taxes. When it comes to the various stringent tax laws in the South African tax system aimed at ensuring the efficient collection of taxes, the ‘pay now, argue later’ rule is certainly a contender. The practical impact of the rule is that neither the noting of an objection nor an appeal suspends a taxpayer’s pre-existing obligation to pay tax. The provisions of the Tax Administration Act 28 of 2011 contain wide powers that are conferred upon the South African Revenue Service (SARS). These provisions in conjunction with the rule are the catalysts through which taxpayers’ co-operation with SARS is achieved. It is therefore not surprising that the State may enact and execute its laws in a manner so as to effectively achieve its tax collection mandate, whilst not having sufficient regard to the rights of taxpayers. The purpose of this mini dissertation is to engage in a critical discussion of the ‘pay now, argue later’ rule and to show the need to ameliorate the effect of the powers bestowed upon SARS in order to ensure better protection of taxpayers’ rights. There is a need to create better awareness of taxpayers’ rights and for tax legislation to be a lot more understandable and unambiguous in the interest of creating certainty for taxpayers, SARS and the courts.
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.
A discussion of the success and failures of business rescue as a remedy for ailing companies.
(2018) Sobantu, Vuyo.; Subramanien, Darren Cavell.; Badul, Chantal Jacqueline.
Companies are constantly facing risks, including financial constraints, which may contribute to companies being unable to trade in the manner desired. Unfortunately, companies that find themselves in this predicament have, in reality, been without a remedy from as early as statutory provisions regulating company law were promulgated in 1926. Judicial management, as a remedy, is notorious for being an outright failure, but the current Companies Act 71 of 2008 introduced the remedy of business rescue for financially distressed companies. The scrutiny and spotlight on the new remedy turns on whether it can be truly accessible for the companies in question and what significant changes it has made to favour financially distressed companies. This mini dissertation will aim to discuss whether the remedy of business rescue has been a success or failure.
The effects of business rescue on the companies’ stakeholders : a comparative analysis between business rescue and judicial management.
(2018) Xaba, Ntombikhona Thandeka.; Subramanien, Darren Cavell.; Badul, Chantal Jacqueline.
Upon the recognition that the implementation of the judicial management process would not be the success that it was anticipated it would be, it became apparent that there was need for a system of corporate rescue appropriate to the needs of a modern South African economy. The legislature then introduced a new business rescue regime when the Companies Act 71 of 20082 (the Act) came into effect in the South African law. This new Act remarkably changed corporate law. One of the central features of the Act is the introduction of business rescue- a procedure which provides for the rehabilitation of financially distressed companies in a manner that seeks to balance the rights of all stakeholders. These provisions are said to be the appropriate method for modern South African economy and they differently affect the stakeholders of a company. This thesis will be discussing the different rights given to affected persons in the new Companies Act and examine how the provisions of business rescue affect different stakeholders of the company and compare such effects with those experienced under judicial management, specifically in light of the improvements of the positions of the stakeholders. Although the new business rescue is a remarkable improvement from the old judicial management system, there is still room for improvement.
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.
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.