Doctoral Degrees (Public Law)
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Item Open Access Mediation as an alternative to litigation with special reference to medical negligence claims(University of the Free State, 2021) Muller, Errol Cedric; Swanepoel, C. F.In the recent past, healthcare in South Africa faced, and continues to face, considerable challenges related to an increase in medical negligence claims. The consequences of this increase in claims affect both the public and the private healthcare sectors. Primary healthcare at public hospitals and clinics suffers, because money is spent on legal fees and claim pay-outs, instead of its intended purpose of providing healthcare. Private hospitals and medical professionals are confronted with ever-increasing indemnity insurance premiums, doctors practice defensive medicine to avoid claims, and private healthcare users pay more for private healthcare. The conventional method of resolving medical negligence disputes is through adversarial court litigation. The parties enter into a trial by battle, they present their evidence and a presiding officer renders a win–lose judgment. Litigation, and the litigation of medical negligence claims, in particular, is expensive, time consuming, complex, and emotionally taxing, and the eventual outcome often fails to satisfy the needs of the litigants. Moreover, attempting to resolve medical negligence issues through adversarial processes does not promote normative constitutional values, such as dignity and equality and, importantly, access to justice. This necessitates legal reform and the adoption of alternative and transformative practices to dispute resolution. It is argued in this study that mediation offers a viable alternative to litigation generally, and for medical negligence claims, specifically. Mediation, in its barest essence, is third-party (mediator) -facilitated dispute resolution through negotiation. The process is less expensive, less time consuming, and uncomplicated, and party oriented. Mediators assist participants to create their own solution based on their needs and interests, and the mediation process is not aimed at finding a winner or a loser. Medical negligence claims are often traumatic for both the injured patient and the medical professional/s who treated the patient. Having the opportunity to resolve their dispute in a dignified, non-threatening environment, on a level playing field, is something litigation simply cannot provide. Significantly, the process of mediation enhances the constitutional imperative of access to justice in the context of medical negligence claims on more than one level. The parties have access to a process that provides them with the opportunity to create their own solution to a dispute, using a process that is party oriented, quick, and less expensive than litigation. The cost and time savings enhance social justice by decongesting court roles, freeing up funds for primary healthcare, reducing the cost of private healthcare and increasing confidence in the rule of law. The judiciary and the legislature, through various judgements and statutory enactments, have demonstrated their support for the use of mediation as an alternative to litigation. The previous minister of Health and several other commentators, academics and practicing mediators have voiced their support for using mediation. The prevailing adversarial culture amongst legal practitioners and the public, in particular, is an obstacle to the more generalised use of mediation. However, and conversely, transforming adversarial thinking and practices could be the ultimate solution to institutionalising mediation. The main drivers behind an effort to radically change legal culture, away from litigation, towards more facilitative dispute resolution mechanisms, will necessarily have to come from the legal profession. Education is the vehicle for transformation, starting from basic education, and moving on to tertiary education and continued professional education. Confidence in the mediator and trust in the process are indispensable requirements for parties when they elect to mediate a dispute. A properly trained mediator is, therefore, crucial for facilitating the process, particularly in medical negligence claims. Mediators in medical negligence matters must, in addition to conventional training, receive specialised training in aspects related to facilitating these types of claims.Item Open Access The creation of an ombud office to improve access to justice and cooperation among education stakeholders(University of the Free State, 2022) Alexander, Nadia; Reyneke, J. M.This dissertation argues the appropriateness of the creation of an Ombudsman office as a suitable dispute resolution mechanism to improve access to administrative justice, and cooperation among education role-players. The main focus of the dissertation is to determine alternatives to litigation for education role-players, including school governing bodies (SGBs) and provincial departments of education (PDEs) to ensure that cooperative governance principles are realised and to improve access to administrative justice.Item Open Access The impact of customary law and its constitutional protection on the social status and political participation of women in Lesotho(University of the Free State, 2022) Ramakhula, Thabang; Brand, J. F. D.; Van Marle, K.Lesotho has been experiencing a progressive decline in women’s political participation, despite the existence of numerous interventions that have been aimed towards combating this status quo. With a goal towards understanding the causes for this progressive decline as well as why interventions fail to yield positive results, I examine the possible relationship between custom, customary law, the Constitution and women’s social status and political participation in Lesotho. Towards this objective, I adopt a postcolonial and African feminist perspective to examine custom, customary law and the Constitutional protection afforded customary law in Lesotho. As a starting point, I explore the meaning and origins of custom from a general stance, and then go on to investigate the particular meaning of custom to the people who practice customs. This exploration affords a better understanding of not only custom, but also the value attributed to it by those who practice it, which value in turn enables it to exercise a form of authority over the overall being of such people. This authority, I find, makes custom instrumental in the formation and sustenance of social and political stereotypes as well as personal and communal beliefs and perspectives. I move on to customary law, particularly Lesotho’s customary law. I trace the history of Basotho’s customary law pre-colonialism into its codification during the colonial era. I argue in this discussion that the laws were instrumental in the formation and sustenance of women’s subordination under men as well as in the modelling of the hegemony, episteme and power dynamics in men’s favour, which have proven to negatively impact both women’s social status and political participation. In discussing the Constitution of Lesotho, from its inception and its final state following a number of amendments, I highlight how it contains a number of issues that signal a lack of desire to promote women’s empowerment or equality with men. I analyse the negative impact that the Constitution’s adoption of a dual legal system, the inclusion of claw back clauses, as well as the umbrella protection it affords customary law have on Basotho women’s social status and political participation. In centring women in the discussion, it becomes clear that there exists a link between custom, customary law, the Constitution of Lesotho and women’s social status and political participation. For one, I find that patriarchy is so deeply entrenched in the fabric of Lesotho, that all spheres of society exude it - whether this is evidenced through the stereotypical shaping of the social view of women, their exclusion from the public sphere and relegation to the domestic sphere, or even the denial of women’s access to the economic space of activity. The instrumental role played by law in the establishment of hegemony and episteme, which perpetuated women’s marginalization vis-à-vis power relations, citizenship and political participation is also brought to the fore. I underscore how custom and law then jointly shaped and portrayed man as the standard, while simultaneously ‘othering’ women. This then reveals how custom and law were, and still are, weaponised against women. My conclusion in this thesis is then that custom, customary law and the Constitution of Lesotho negatively impact both Basotho women’s social status and their political participation.Item Open Access Criminal capacity of and criminal justice for offenders with bipolar disorder(University of the Free State, 2023) Bredenkamp, Lucy Scarlett Lessing; Botha, Rinda; Slabbert, MagdaAccording to the World Health Organisation, bipolar disorder is the sixth most prevalent disability in the world.¹ Despite this, bipolar disorder remains largely unchartered within the South African juridical landscape. Therefore, the thesis investigates whether sufficient provision is made, both in the context of criminal justice and criminal capacity, for offenders who suffer from bipolar disorder within the South African criminal justice system. In doing so, the criminal justice systems of South Africa, the Netherlands, and the United States of America (USA) are examined, with specific reference to the tests for criminal capacity, relevant legislation, case law, and what constitutes both expert evidence and expert witnesses, respectively. Sentencing options and alternative sentencing options, as they relate to mentally ill offenders, are also examined. Particular consideration is given to terbeschikkingstelling in the Netherlands and mental health courts in the United States. In addition, the advantages and disadvantages of both systems are thoroughly analysed. A proposal for a uniquely South African mental health court model is subsequently put forward, in the hope that this will pave the way in ultimately providing an improved alternative to conventional sentencing for offenders suffering from bipolar disorder.