Browsing by Author "Mesthrie, Sapna"

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    Gender-based discrimination and underrepresentation of female judges in the superior courts in South Africa – a critical analysis of international and domestic laws and policies on the protection of women's rights
    (2024) Stoilova, Rada; Mesthrie, Sapna
    Gender stereotypes, patriarchal ideologies and discriminatory cultural beliefs have resulted in continuous discrimination against women in all spheres of life. Throughout the years, women around the globe were denied basic human rights such as the rights to equality, safety, dignity, education, equal economic opportunities, and the right to vote among others. Today, despite the robust efforts under international, regional and domestic law to eliminate discrimination against women in all its forms, gender stereotypes remain the primary factor contributing to the disparity in the representation of women judges in the Superior Courts in South Africa. This dissertation examines the issues of gender-based discrimination in the appointment of female judges to the Superior Courts in South Africa and the underrepresentation of women in senior positions in the post-apartheid independent judiciary. It addresses the question of whether women in the judiciary in South Africa are adequately protected by the laws and policies enacted on an international, regional, and domestic level on the protection of women's rights and the promotion of gender equality. It argues that while significant progress has been made over the years to ensure gender diversity on the bench, women in South Africa continue to face gender based discrimination before and during judicial appointment processes in the Superior Courts and remain highly unrepresented in senior judicial positions. While the current international and regional human rights instruments provide a relatively extensive protection of women's right to equality in various spheres of life, they have omitted to address crucial factors in the achievement of gender equality in the workplace. Furthermore, South Africa has failed to fully implement de facto equality between women and men and to eliminate the key factors contributing to gender inequality on the Bench – namely, the harmful gender stereotypes and patriarchal attitudes deeply entrenched in the South African society.
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    Rethinking the meaning of a politically exposed person to promote substantive compliance of the financial action task force standards
    (2025) Mashale, Nthabiseng Evenecias; Mesthrie, Sapna; Louw, Michelle
    This dissertation explores whether there is a need for a broader definition of Politically Exposed Persons (PEPs). It aims to enhance the understanding of PEPs to improve countries' abilities to substantially comply with the Financial Action Task Force (FATF) standards. The dissertation observes that the current definition of PEPs is deemed too narrow, thereby hindering substantial compliance with the FATF standards. It highlights the need to broaden the scope of PEPs beyond natural persons to encompass legal entities, similar to the EU model implemented in the UK. The paper presents a brief comparative analysis of the Anti-Money Laundering, Counter-Terrorism Financing, and financing of proliferation of weapons of mass destruction (AML/CTF) regimes of the FATF, South Africa, the EU, and the UK in relation to PEPs. It considers Recommendation 12 of the FATF, Mutual Evaluation Reports, domestic legislation of the respective jurisdictions, financial intelligence units' guidelines and international standard-setting bodies like Wolfsberg Group and Basel Committee on Banking Supervision and international instruments. The comparison reveals that the fundamental element of a PEP being a natural person is too restrictive, and thus ineffective in combatting ML/TF and hinders national efforts by countries like South Africa to promote substantive compliance with the FATF standards. Therefore, this paper suggests ways to respond to this and other challenges. It suggests that a broader definition of PEPs be adopted by the FATF on an international level and by South Africa, incorporating legal entities in the definition of PEPs to better comply with FATF AML/CTF standards.
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    Rethinking the sexual offenses exception to previous consistent statements: An evaluation of sections of 58 and 59 of SORMA.
    (2023) Mesthrie, Sapna; Schwikkard, Pamela-Jane
    This dissertation examined whether the rules contained in sections 58 and 59 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA) could be reconciled with the aims and objectives of the legislation. It also considered whether these rules improved the position that previously existed under the common law. These provisions enable the first report made by a complainant in a sexual offence matter to be admitted into evidence at trial and constitute a statutory exception to the general rule that previous consistent statements are inadmissible. The methodology adopted in this investigation was a desktop review of secondary literature and reported cases. This dissertation analysed case law relating to the common law exception which existed prior to the enactment of SORMA and case law following the implementation of SORMA. This analysis makes it clear that the common law sexual offences exception was based on antiquated and misogynistic thinking about sexual offences and the behaviour of women. This dissertation ultimately determined that SORMA has not had the desired impact of reforming the common law on prior complaints as envisioned by the drafters. Instead, the analysis indicates that the undesirable common law position has been codified. It is argued that this can be attributed, in part, to the ambiguous drafting of sections 58 and 59 which do not clarify whether the prior complaint must have been made at the first reasonable opportunity, as was required under the common law. The analysis of case law demonstrates that this uncertainty has led to the timing of a complaint often being a central issue in sexual offence cases. This further perpetuates the anomaly which existed under the common law. This dissertation concludes that the failure by the legislature to expressly abolish the common law requirement that a prior complaint be made at the first reasonable opportunity is not congruent with the aims and objectives of SORMA. It is recommended that SORMA be amended to include an express provision that prior complaints in sexual offence cases are admissible regardless of the timing of the complaint. This would ensure that legal reform corresponds with social science evidence on the psychology of rape and the difficulties of disclosure.