Criminal and Medical Law

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Browsing Criminal and Medical Law by Author "Botha, Rinda"

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    'n Kritiese ondersoek na dronkenskap as verweer in die Suid- Afrikaanse strafreg
    (University of the Free State, 2013-12) Viljoen, Marina; Botha, Rinda
    English: A person commits an offense if there is behavior on his part that matches all the elements set out in the definition of the crime, such conduct is unlawful and accompanied by the necessary culpability. Thus a person's actions have to comply with the elements of a crime namely legality, conduct, causation, unlawfulness, criminal capacity and culpability. Alcohol can influence a person in different ways for example even excluding a person's criminal capacity or culpability. The problem now arises as to how criminal liability is affected by the intake of alcohol and how the defence of voluntary intoxication should be dealt with in our law. Before the case of Chretien it was not possible to raise the defense of voluntary intoxication. After the decision in Chretien the legal position regarding the defence was as follows: 1. If a person is so intoxicated that he can not act voluntarily then he can not be convicted of any crime; 2. It is possible in extreme circumstances that a person's criminal capacity can be excluded which leads to him also not being criminally liable for any crime; 3. Intoxication can even exclude general intent. The public was not satisfied with the outcome of the Chretien judgment and demanded that a less lenient approach be followed. The Legislature intervened and promulgated the Criminal Law Amendment Act 1 of 1988. The most important changes to the position regarding the defense of voluntary intoxication after the commencement of this Act can be summarized as follows: 1. When the accused is so intoxicated that he could not perform a voluntary act, in terms of the Chretien descission, he can not be found guilty on the main charge. He will however be guilty of contravening section 1 of Act 1 of 1988; 2. When the accused is so intoxicated that his criminal capacity is excluded he will also in terms of the Chretien decision not be found guilty on the main charge, but he will be guilty of contravening section 1 of Act 1 of 1988. 3. When the accused is intoxicated enough to exclude his intention but not his criminal capacity, he will in terms of the Chretien descision not be found guilty of the intent-crime. He will also not be guilty of contravening section 1 of Act 1 of 1988 because this situation is not covered in the wording of the Act. However, if he is accused of a crime that requires intent and his intoxication excludes such intent, he can still be found guilty on an alternative charge that only requires negligence. 4. An accused's intoxication will not exclude his culpability where the element required to prove is negligence. Instead an accused's intoxication can be used to prove his negligence. Even after commencement of Act 1 of 1988 there are still many loopholes in our law concerning the defence of voluntary intoxication. The approach of both Canada and Australia are studied in this research with the objective of comparing their respective positions with the approach to the defence followed in South-African law and making suggestions on how to improve our law.
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    Die ontwikkeling van en die regsproblematiek in verband met die wettiging van prostitusie in Suid-Afrika
    (University of the Free State, 2008-06-28) Botha, Rinda; Oosthuizen, H.; Verschoor, T.
    English: Prostitution, the exchange of sex for money, poses a problem all over the world. At present in South Africa prostitution, according to article 20(1)(aA) of the Sexual Offences Act 23 of 1957, is still described as a crime. The four cardinal problems relating to prostitution experienced in South Africa at the moment are the following: • The high occurrence of violence experienced by sex workers in their still illegal profession. • The lack of control over the spreading of HIV-infection by and to sex workers. • The ineffective measures against and prevention of child prostitution and trafficking in children and human beings. • The absence of labour rights in the sex worker’s profession, currently still illegal. The South African Law Commission is currently reconsidering the issue regarding the effectiveness of new regulative measures concerning prostitution. South Africa thus is currently faced with a choice regarding a new approach to address prostitution in this country. Having studied the various approaches towards prostitution in several countries, the author is convinced that, although a serious challenge, the solution is to be found in between the regulation and labour approaches. According to the regulation approach, the existence of prostitution is more or less accepted but simultaneously regarded as a risk to social health and social order. In order to safeguard society against the dangers related to prostitution, it is regulated by the promulgating of regulations. According to the labour approach sex work is acknowledged as a profession and thus by decriminalizing sex work the opportunity is given to regulate sex businesses by means of civil and labour legislation rather than by criminal law. The author is of the opinion that the decriminalization and related regulation of prostitution in itself may relieve the violence sex workers are currently subjected to. More effective control as to the spreading and prevention of HIV by sex workers will also be enhanced by this. Sex workers will also have access to labour legislation (applicable to any legal profession). The greatest challenge to the acceptance of the proposed approach is in the effective coping with and prevention of child prostitution and trafficking in children and other human beings. The necessity of the acceptance and implementation of legislation in order to combat this crime as a prerequisite for the decriminalization of prostitution in South Africa is therefore strongly emphasized by the author. In conclusion some measures are proposed concerning the implementation of the possible decriminalization and regulation of prostitution in the near future. Theses proposals relate to: • The addressing of criminal offences reported by sex workers. • Effective control as to the spreading of HIV by and to sex workers. • The prevention of child prostitution and trafficking in children and human beings. • The assurance of sex worker’s access to labour legislation. The author, however, emphasizes the fact that the success of the proposed approach depends not merely on thoroughly considered regulations, but also on the effective enforcement thereof. This poses a major challenge to South Africa as a developing country.