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Browsing Criminal and Medical Law by Author "Oosthuizen, H."
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Item Open Access Are the rights of the disabled a reality in South Africa? Part two(Faculty of Law, University of the Free State, 2004-06) Reyneke, J. M.; Oosthuizen, H.English: For a long time the rights of disabled persons have been ignored not only in South Africa, but also in the rest of the world. There are many disabled persons who can participate on an equal level with able-bodied persons, but on the other hand there are many disabled persons who are unable to do so due to the nature and severity of their disabilities. Discrimination against disabled persons lead to the exclusion of them to function in a normal way in the community and the denial of their rights and to function freely in society. Legislation can assist in the prevention of discrimination against such persons and also in their upliftment.Item Open Access Combating human trafficking: a South African legal perspective(University of the Free State, 2010-11) Kruger, Hester Beatrix; Oosthuizen, H.; Verschoor, T.; Stuurman, L.The transatlantic slave trade has been outlawed for more than 200 years. However, could it be that slavery still exists, but in a modern form, namely that of human trafficking for various exploitative purposes? Investigating the combating of human trafficking from a legal perspective is a relatively new research field in South Africa. Therefore, this study, having identified the gap in research on the current South African legal response to combating human trafficking, strives to make a contribution to the body of research on this issue. The aim of the study is threefold: first, to provide a better understanding of the multifaceted human trafficking crime; secondly, to clarify obligations to combat human trafficking contained in relevant international and African regional instruments; and, thirdly, to analyse the South African legal response for combating trafficking and to assess whether this response complies with the identified international and African regional obligations. The objectives of the research are designed to realise the threefold aim. As regards the first part of the aim, the objective is to describe and clarify important issues relating to human trafficking. This is in line with the reasoning of Gould1 that an in-depth knowledge of the human trafficking phenomenon is vital for the purpose of an effective response. To realise the second part of the aim, the objective is to review the historical development of relevant international and African regional instruments in order to identify, categorise and, as far as possible, synthesise obligations to combat human trafficking. Unlike many other studies, the present study draws obligations and recommended directives and guidelines for combating this crime from the broader framework of instruments relevant to human trafficking, and not only from the landmark treaty on human trafficking, namely the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol). As regards the last part of the aim, the objective is twofold. First, the current South African legal framework applicable to human trafficking is described and analysed. This framework comprises three components: existing general laws that may be applicable to some human trafficking activities; the first trafficking-specific legislative provisions as contained in the Children’s Act 38 of 2005 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007; and the comprehensive anti-trafficking legislation proposed in the Prevention and Combating of Trafficking in Persons Bill (B7-2010). While the first part of the last objective maps out the South Africa antitrafficking framework, the second part compares this framework with international and African regional obligations pertaining to domestic counter-trafficking responses. Finally, based on this comparison, To realise the second part of the aim, the objective is to review the historical development of relevant international and African regional instruments in order to identify, categorise and, as far as possible, synthesise obligations to combat human trafficking. Unlike many other studies, the present study draws obligations and recommended directives and guidelines for combating this crime from the broader framework of instruments relevant to human trafficking, and not only from the landmark treaty on human trafficking, namely the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol). As regards the last part of the aim, the objective is twofold. First, the current South African legal framework applicable to human trafficking is described and analysed. This framework comprises three components: existing general laws that may be applicable to some human trafficking activities; the first trafficking-specific legislative provisions as contained in the Children’s Act 38 of 2005 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007; and the comprehensive anti-trafficking legislation proposed in the Prevention and Combating of Trafficking in Persons Bill (B7-2010). While the first part of the last objective maps out the South Africa antitrafficking framework, the second part compares this framework with international and African regional obligations pertaining to domestic counter-trafficking responses. Finally, based on this comparison,recommendations are made for enhancing the South African legal response designed to combat human trafficking. By realising the threefold aim of the study, the study can, it is submitted, make a valuable contribution to research on combating human trafficking in South Africa from a legal perspective. By making the research available to the legal fraternity, such research may prove useful in litigation, in the training of lawyers, and in future law reform. The study may also be valuable in informing multidisciplinary stakeholders and service providers dedicated to combating human trafficking by contributing to a better understanding of the human trafficking phenomenon. Lastly, the study may be of practical value to other African countries that are in the process of drafting anti-trafficking legislation conducive to the African context. These countries may find some guidance in considering the road travelled by South Africa in the search for comprehensive anti-trafficking legislation.Item Open Access Die Wet op Getuiebeskerming 112 van 1998: enkele aspekte oor die praktiese werking daarvan(Faculty of Law, University of the Free State, 2001) Kruger, H. B.; Oosthuizen, H.English: To combat crime and especially serious crime by gangs, racketeers, syndicates and druglords, witnesses who are willing to testify against these criminals, must be protected efficiently. To address this problem the South African legislature amended the Criminal Procedure Act 51 of 1977 and enacted the Witness Protection Act 112 of 1998 to create a witness protection program. This program aims at protecting witnesses whose lives are endangered because of their willingness to give evidence in criminal court cases and other specified proceedings. Certain aspects concerning the practical functioning of the Witness Protection Act 112 of 1998 are discussed as well as the obstacles encountered and the positive contribution of the Act.Item Open Access Dying to starve: a comparative analysis of legal aspects relating to consent in force-feeding of both minor and adult anorexic patients(Faculty of Law, University of the Free State, 2010-12) Karels, M. G.; Oosthuizen, H.English: The authors explore the legal complexities surrounding the force-feeding of anorexic patients. Due to the myriad of difficulties relating to anorexia nervosa, treatment is intricate. The aim of this exposition is to clarify legal issues of consent and self-determination, with regard to both adult and minor patients. In addition, the distinction between 'irrational' and 'incompetent' refusal will be discussed, with the authors maintaining that the 'irrational' refusal of an adult patient should be respected by the law. To come to an informed conclusion, the authors will first analyse the medical and psychological aspects of anorexia nervosa. Secondly, the South African position as shaped by the Mental Health Care Act, the Children's Act and the National Health Act will be contrasted with the position in Great Britain in order to determine the international perspective and its contrast, or not, to South African law.Item Open Access First generation forensic evidence and its influence on legal decision-making: a South African perspective(University of the Free State, 2013) Visser, Jo-Marí; Oosthuizen, H.; Verschoor, T.English: Interactions between science and law can be dated back as far as 9000 B.C. to 3000 B.C., to a time known as the Neolithic age. By the seventeenth century, great scientific contributions by, amongst others, Copernicus, Galileo, Newton, and Boyle affected the way the world was viewed and what methods were most appropriate for finding the truth and, specifically, altered the thought processes of the entire literate English society, including English jurists. During the seventeenth century in England, the fields of law and science enjoyed increased awareness of the probability of truth, not the certainty of it. The search for absolute truth was thus replaced by probabilistic hypotheses and assessment of evidence to achieve truth beyond a reasonable doubt. The interconnectedness of science and law has diminished over time as contemporary thinking demanded not only greater specialisation in the profession and its subdivisions, but also a greater autonomy of legal thought and reasoning. Practitioners, scholars and authors held the view that legal reasoning is, and should remain, separate from scientific reasoning. Modes of reasoning employed in criminal investigation and judicial decision-making are communal in both science and law. Additionally, investigating officers frequently employ forensic science and scientific evidence to assist and direct them in criminal investigations. In the same manner, prosecutors apply forensic evidence in order to assist the court in finding the truth, and to ultimately prove its version of criminal events. In South Africa, police investigators and state prosecutors typically rely on eyewitness testimony in both the detection of crime and to achieve successful conviction of guilty offenders. In addition, DNA evidence has emerged as the golden standard of forensic evidence and much reliance is placed on the results of DNA profiling. However, eyewitness testimony is notoriously unreliable and DNA evidence is not the infallible assurance of certainty it was once thought to be. It is trite that presiding officers must be provided with all relevant and admissible evidence in criminal trials. This includes traditional forensic sciences like bloodstain pattern analysis, trace evidence, fingerprint evidence and many more. Recent research has revealed the questionable scientific foundations of these traditional forensic sciences. While the scientific community is working towards stabilising these knowledge bases, provisions of the law of evidence must provide adequate instruments to prevent the admission of ‘junk’ science into evidence. Yet an examination of a variety of rules of admissibility reveals a deficiency in the law to competently exclude fallible and unreliable forensic evidence. In the South African criminal justice system presiding officers invest great reliance on the opinion and explanation of expert witnesses without critically assessing the scientific validity of the testimony. This has resulted in the admission of faulty evidence. To mend this problem presiding officers, as well as investigating police and legal practitioners must obtain a solid scientific knowledge base to enable these role-players to accurately assess forensic evidence.Item Open Access Mother's of Africa: crimes against women - a medico-legal guide(University of the Free State, 2006-05) Karels, Michelle Gail; Oosthuizen, H.English: The women of South Africa continue to labour under the yoke of sexual violence and misuse. 1. The constitutional development of the rights of women is examined in chapter one. 2. The crimes of rape, domestic violence and sexual abuse continue to be a pervasive factor in our society despite laws to the contrary. The current law relating to such acts are clarified in chapter two. 3. A victim of the aforementioned crimes will usually undergo a medical examination which is used as evidence at trial. This work clarifies the procedure involved in such examination as well as the current law relating to such acts of violence. 4. The Criminal Law (Sexual Offences) Amendment Act as well as the Bill on Compulsory HIV testing is explored. 5. The statutory and common law position is examined with regard the crime of rape as well as the legislation applicable to sentencing of such offenders. 6. The use and presentation of medical evidence and the role of expert witnesse’s is examined and well as the legislation so applicable. This work contains criminological elements in that it examines rapist profiles and the propensity towards the commission of such crimes.Item Open Access 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.Item Open Access The organised crime of organ trafficking(University of the Free State, 2006-11) Watson, Calinka; Oosthuizen, H.Across the world today people are selling their bodily organs to organ trafficking syndicates in order to make money for necessities and to pay off loans used in order to survive. Modern medical technology has vastly improved the outcome of organ transplants and survival rates of human organ recipients. This in turn means that as a survival option many more potential recipients are being placed on waiting lists in order to receive organ transplants. What therefore contributes to the organised crime of black markets in human organs is the great shortages in the numbers of donated organ necessary for organ transplantations. This is due to increased numbers of patients on transplant waiting lists. Poor donors are therefore willing, in the nonregulated system of organ trade, to sell their organs to increase their fortunes and rich ill recipients are willing to pay any price for any organ. Organised crime legislation and medical policies today make this activity illegal and this can be said to be half the problem in increased organ markets and organ trafficking syndicates. The traditional system of organ donation, namely altruistic organ donation without compensation, is no longer effective enough in ensuring that sufficient numbers of human organs are donated yearly to meet the demand. Hospitals and other non-governmental organisations or institutions dealing with organ donation, procurement and human organ transplantation are in desperate need of such organs for organ transplants. For this reason various solutions have been illustrated as methods in eliminating the organised crime of organ trafficking and increasing available organs needed for transplantation. Some of these options include national organ donor registries to track current organ donors, presumed consent laws which require donors to specifically opt out of an organ donor registry, conscription or state owned organs as well as future’s markets or donation contracts and other forms of compensation to donors such as tax deductions, preference for future organ transplants above other recipients and remuneration for all expenses incurred and lost during the organ donation period. Educational and public media programmes have also been suggested to educate average citizens on the issue of organ transplantation and to make them aware of organ trafficking and the need for donated organs, whether such human organs are donated while the donor is alive or if the donor only consent to such removal of organs once deceased. Many ethical dilemmas exist regarding these various ideas to increase donated organs. People feel that by selling human organs for example, poor donors will be exploited and altruistic donations will no longer be willing to donate their organs because of feelings of disgust for newly designed organ donation legislation.Beyond this fear lies the fear that if organ markets were legalised only richer members of society would be able to afford organ transplantations and that thereby poorer people would not have access to organ transplants. The situation without such a legalised market in place, however, already exploits the poor members of society and bad health risks for both the organ donor and organ recipient ensue due to shocking medical surroundings and incorrect procedures used in illegal organ transplantations. What is recommended therefore is that such legalised systems of compensated organ donation are to work in conjunction with the traditional altruistic system of organ donation and other methods used to increase organ donation and that legislation be correctly drafted and implemented to benefit both organ donor and organ recipient. It is deemed that such a legalised system of organ sales will eventually eliminate the organised crime of organ trafficking as the illegal demand for such organs will no longer exist. This will occur because of increased organ donations due to, amongst other methods of organ procurement, educational programmes and organ donors receiving some form of compensation for their donation.Item Open Access A proposed framework for the legal protection of premature and critically-ill neonates in the context of South African child law(University of the Free State, 2012-07) Van der Westhuizen, Catharina Susanna; Oosthuizen, H.; Verschoor, T.; Kruger, J. M.English: Until relatively recently extremely premature babies and critically-ill neonates would not have survived because medical science was insufficiently advanced to save them. Infanticide was a common practice among the Greeks and Romans as a form of birth control and a means of disposing of malformed offspring. Certain indigenous South African tribes also committed infanticide to rid society of deformed infants. Gradually the law came to take a stricter view of infanticide, and with the rise of Christianity it was regarded as murder. The advancement in medical technology, skills and expertise increased the need to take account of biomedical ethics, since this is the framework within which critical care decisions should be made. The principal ethical theories, namely deontology, utilitarianism and virtue ethics, are discussed, as well as the principles of biomedical ethics, namely beneficence, non-maleficence, autonomy and justice. Since actions for wrongful life and wrongful birth also touch on the sanctity of life and quality of life principle, these aspects are briefly discussed. Various international human rights instruments not only guarantee the right to life, but also prescribe a high standard of health care to member states. The right of access to health care, the right to emergency medical treatment and the best interests of the child are entrenched in the Constitution of the Republic of South Africa, 1996. The best interests of the child are of paramount importance in all matters concerning the child and this concept runs like a golden thread through all cases in which children’s rights are considered. In terms of the National Health Act 61 of 2003, free health services are offered to children below the age of six years. Section 129 of the Children’s Act 38 of 2005 specifically deals with medical treatment of children, while section 11 deals with children with disabilities and chronic illnesses. A legal comparative study was undertaken in which the legal position in England and Wales, as well as that of the Netherlands, was considered in order to formulate a framework of legislation for the protection of premature babies and critically-ill neonates. The position in England and Wales can best be determined by studying the judgments delivered in court cases. A comprehensive report, “Critical care decisions in fetal and neonatal medicine: ethical issues”, was compiled by the Nuffield Council on Bioethics. This report was drafted by a multi-disciplinary working party and provides guidelines regarding the medical treatment of neonates. In the Netherlands euthanasia is legal, but then the person requesting it must be above the age of sixteen years. Since neonates cannot request euthanasia, the preferred term is “end-of-life decisions”. The Groningen Protocol was drafted by paediatricians assisted by the public prosecutor coroner to prevent a physician from being criminally prosecuted if the guidelines in the Protocol are adhered to in the case of end-of-life decisions. In the thesis three recommendations are made: Guidelines that would be suitable for South African conditions should be drafted by a multidisciplinary team along the lines of the Nuffield Council on Bioethics. When cases concerning whether treatment should be withheld or withdrawn reach a South African court, it is recommended that the cases adjudicated in England and Wales be used as a precedent. It is recommended that mediation be considered as an option when there is disagreement regarding the treatment of critically-ill neonates between health care professionals and parents, or between parents. Since the High Court is the upper guardian of all minors, the outcome of the mediation should be made an order of court.Item Open Access 'n Regsvergelykende studie van deskundige getuienis in straf- en siviele verhore(University of the Free State, 2007-11) Knoetze, Izette; Oosthuizen, H.; Van der Merwe Fick, C. P.English: Progress in the field of science requires more and more the use of experts as witnesses during legal proceedings. It is due to the complex nature of some scientific principles that legal practitioners make use of expert witnesses to answer their questions and to supply them with reasons for their answers as well. Due to their expertise and/or experience, expert witnesses are in a position to explain to the courts complex concepts and to help the courts in their understanding and interpretation of scientific principles. Courts, however, have a discretion to reject evidence by expert witnesses should the court be of the opinion that such evidence is irrelevant and unreliable or if the witness failed to substantiate, to the satisfaction of the court, the reason for his or her opinion. The report of the expert witness contains an exposition of the reasons on which he or she basis his or her opinion. The report has the further use that it affords the court a chance to subject it to cross-examination. Aspects on which expert witnesses may testify is legion. Examples discussed above include among other things evidence regarding deoxyribonucleic acid testing on blood samples taken from a victim of crime, evidence extracted by means of a polygraph test, evidence regarding fingerprints, earprints, brain fingerprinting and thermal imaging. Evidence by psychologists and psychiatrists is an important aid should a court, for example, have to decide on the custody and access of minors after divorce. Interception and/or tapping of cellular and/or telephone conversations is a relatively simple and fast way to obtain evidence during the investigation of an alleged offence. In this regard, the Bill of Rights calls for a weighing of interests of the right to privacy (of the accused) and the public interest (the maintaining of law and order). Legislation regulates most matters concerning expert evidence. Case law should provide guidelines to the courts in their evaluation of expert evidence. If an expert witness presents evidence regarding an unknown scientific technique to the court, the courts should look to international case law for guidance. American case law laid down principles that should be met before evidence regarding an unknown scientific technique is presented in court and may serve as guidelines to South African courts. Factors such as the reliability and acceptance of a technique in scientific circles both play a role in the adjudication of the question concerning the admission and/or rejection of evidence as far as that technique is concerned.Item Open Access Straf- en geneeskundigregtelike ondersoek na die statutêre oortredings verbandhoudend met sekere reproduktiewe mediese prosedures(University of the Free State, 2013-06) Daffue, Belinda A.; Oosthuizen, H.; Verschoor, T.English: The different statutory offences applicable to surrogacy and the termination of pregnancies are identified in order to contribute to the efficient lecturing of medical law as independant field of study to law and medical students. In the light of the challenges facing the criminal justice system and the health care system in South Africa, inter alia due to a lack of means, the question is posed whether the criminilization of acts applicable to reproductive medical procedures should or could be meaningfully dealt with within the present criminal justice system. The composition of the health care system in South Africa and the medical ethical obligations as contained in the National Health Act 61 of 2003 are explained with the Constitution of South Africa in mind. Together herewith the role of the Health Professions Council of South Africa in its dealing of contraventions by its members is enunciated. The medical ethical principles are discussed with reference to the well-known four pillars of medical ethics in order to ascertain their applicability in evaluating the lawfulness of the conduct of the health care worker. The practical application of the ethical rules in the execution of surrogate agreements and termination of pregnancies are discussed with reference to the legal position in countries inter alia such as the United States of America and England. The applicable legislation is evaluated against the backdrop of the principle of legality. In view of the failure of the legislature to apply the principle of legality in several sections of the Children‟s Act 38 of 2005, the National Health Act 61 of 2003 and the Choice of Termination of Pregnancy Act 92 of 1996, the purpose of the legislature is discussed and recommendations are made for the amendment thereof.Item Open Access Die Suid-Afrikaanse strafreg en die noodsaaklikheid van voortdurende vernuwende interpretasie - ’n kritiese evaluering(University of the Free State, 2015-01-24) Gertenbach-Fowler, Henriette; Oosthuizen, H.; Verschoor, T.Abstract not available