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Item Open Access The symbiotic integration of theory and practice: a sui generis approach(University of the Free State, 2009) Bezuidenhout, I. J.; Swanepoel, C. F.𝑬𝒏𝒈𝒍𝒊𝒔𝒉 The teaching of a substantive law subject and the teaching of a practical skills course have the potential for integration. Students should leave institutions of higher learning with theoretical knowledge, practical skills and the ability to integrate both in pursuit of a career. In order to produce well qualified graduates, more attention ought to be paid to practical legal training in the initial years of study. This study intends to recommend possible solutions towards the integration of legal theory and skills. This study advocates the full integration of theory and practice in the law curriculum and will further argue that clinical legal education is the best vehicle to achieve this. The study will conclude that clinical legal education should be viewed as the culmination point of other skills training options. The South African solution to legal education may lie in an approach which combines different methodologies in all four years of the LL. B degree. ___________________________________________________________________Item Open Access Exploring the criminalisation of rape in modern times: A comparative study(University of the Free State, 2021) Peens, Janine; Botha, RSouth Africa’s rape statistics are extensively reported on, familiar to all, and shock not only South Africans, but people across the globe. These rape statistics are alarming and emphasise the seriousness of the rate at which the crime of ‘rape’ is committed in South Africa. Below is a brief summary of reported rape statistics since 1988. During 1988, there were 19 308 cases of rape reported to the South African Police Service.¹ Before the end of the apartheid era in 1994, the rape of a black woman was not taken that seriously.² At the end of 1994, when the rape of black women was considered more serious, there were 44 751 reported cases of rape.³ During 2018/2019, the South African Police Service recorded 41 583 cases of rape, which amounted to approximately 114 cases of rape each day.⁴ A Gallup survey done in collaboration with Interpol during 2009 stated the following when the results were released: “A woman is raped every 17 seconds in South Africa”.⁵ This amounts to 5 000 women being raped per day; 35 000 women per week; 150 000 women per month; and 1 800 000 women being raped per year.⁶ Thus, when looking at the statistics mentioned above, it is understandable that South Africa has been labelled as the “Rape Capital of the World”.⁷ Traditionally, according to South Africa’s Common Law, women were seen as less important than men. During the late Middle Ages, from the 13th to the 15th century, the sentence for rape was a fine payable to the father of the victim.⁹ In 1841, rape was defined in South African law as the unlawful and intentional intercourse with a woman by a man.¹º After this development, sentencing developed in such a way that in 1887 the only sentence deemed fit for raping a woman was the death sentence.¹¹ Since 1994, there have been many developments in South Africa regarding the legal position of rape, especially concerning legislation dealing with the sentencing of rapists. The Common Law position concerning the sentencing of rape was repealed and the Criminal Law Amendment Act 105 of 1997 took effect in 1998. The Act abolished the death penalty in accordance with Constitutional Court ruling, and mandatory minimum sentences were set out for rape.¹²Item Open Access A critical analysis of the inefficacy of court - Annexed Mediation (CAM) in South Africa – Lessons from Nigeria(University of the Free State, 2021) Muller, E. C.; Nel, C. L.As a result of defects in the South African civil justice system, the Department of Justice and Constitutional Development introduced voluntary court-annexed mediation (CAM) in the magistrates’ courts in 2014. CAM was chosen under the broader need for greater access to justice because it has the potential to make dispute resolution efficient, amicable, and affordable. It can, therefore, contribute to access to justice for all members of society. Since the amendment of the Magistrates’ Court Rules to provide for CAM, the uptake of mediation in terms of the CAM system has unfortunately been inadequate. The aim of this article is to identify reasons for the inefficacy of CAM since its implementation. We use normative research to critically analyse existing court rules and authority. We conclude that there are several reasons for CAM’s inefficacy which are elucidated in the main text. It is important to understand these reasons, as the legislature presents CAM as a mechanism to improve access to justice. From this platform, we evaluate the mechanisms for court-connected alternative dispute resolutions provided by the Nigerian Multi-Door Courthouse (MDC) system. This reveals policies and practices that could potentially improve the efficacy of CAM in South Africa, as these relate to the factors identified as impediments to the optimal functioning of CAM in our civil justice system. As such, we identify valuable lessons that can be learned from this comparison. Building hereon, and on the conclusions reached elsewhere in the article, we postulate that the mediation scheme, as contemplated by Rule 41A of the Uniform Rules of Court (as applied in the superior courts), should also be implemented in the magistrates’ courts. The article concludes that improving CAM in South Africa is of critical importance to advancing access to justice and departing from a culture of conventional adversarial dispute resolution.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 Metadata only 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.Item Open Access A critical analysis of medical parole in South Africa: a comparative study(University of the Free State, 2023) Sease, Karabo; Botha, RindaIn the early ages, the word "parole", originating from French, which means "word of honour", related to a promise by a captured soldier upon release not to take arms against his captor.¹ The word parole then later referred to a prisoner's promise not to attempt to escape from prison.² Since 1995, parole has been defined as a system of discretionary release of inmates from prison before finishing the maximum limit of their sentence.³ It is also a system of supervision and reintegration into the community until the end of the sentence.⁴ The philosophy of parole emanates from the view that an offender can serve part of his sentence in the community, which becomes one phase of the treatment process.⁵ Medical parole, sometimes called "compassionate release", is a specific form of parole and allows prisoners to seek early release from prison if they have terminal, other or chronic and age-related health issues.⁶ Medical parole is a correctional policy intended to benefit prisoners with specified health conditions by releasing them to parole before their expected release date.⁷ Different countries have different criteria in place which assist in determining eligibility for medical parole.⁸ In general, the eligibility for medical parole depends on the inmates' inability to perform activities of daily living or needing 24-hour nursing care.⁹ South Africa, like most other countries, has medical parole. The 𝘊𝘰𝘳𝘳𝘦𝘤𝘵𝘪𝘰𝘯𝘢𝘭 𝘚𝘦𝘳𝘷𝘪𝘤𝘦𝘴 𝘈𝘤𝘵 111 of 1998 regulates the release of prisoners on medical parole in South Africa.¹º The amended and current section 79(1) of the Act stipulates: Any sentenced offender may be considered for placement on medical parole, by the National Commissioner, the Correctional Supervision and Parole Board or the Minister, as the case may be, if— (a) such offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care. (b) the risk of re-offending is low; and (c) there are appropriate arrangements for the inmate's supervision, care and treatment within the community to which the inmate is to be released.¹¹ Despite amendments made, the medical parole system in South Africa still faces criticism. The release of Shabir Shaik, the financial advisor of former President Jacob Zuma, on medical parole after serving only three years of his fifteen years triggered public debate and put the issue of medical parole in the spotlight.¹² The early release of Mr Jacob Zuma has also brought the spotlight on the system and more criticism.¹³ Another issue which raised eyebrows was the fact that according to a study by Albertus,¹⁴ 60 per cent of prisoners released on medical parole did not die after being placed on parole.Item Open Access Introducing dynamic consent for improved trust and privacy in research involving human biological material and associated data in South Africa(Frontiers Media, 2024) Prinsen,LarisseBiomedical research using human biological material and data is essential for improving human health, but it requires the active participation of many human volunteers in addition to the distribution of data. As a result, it has raised numerous vexing questions related to trust, privacy and consent. Trust is essential in biomedical research as it relates directly to the willingness of participants to continue participating in research. Privacy and the protection of personal information also influence trust. Informed consent has proven to be insufficient as it cannot overcome the informational deficit between primary and unknown future uses of material and data and is therefore not fully informed and invalid. Broad consent is also problematic as it takes full control of samples and data flow from the research participant and inherently requires that a participant must trust that the researcher will use their material or data in a manner that they would find acceptable. This paper attempts to offer some insight into how these related issues can be overcome. It introduces dynamic consent as a consent model in research involving human biological material and its associated data. Dynamic consent is explained, as well as its claims of superiority in instances where future research is possible. It is also shown how dynamic consent contributes to better control of the samples and data by the research participant, and how trust may be improved by using this consent model. Dynamic consent’s co-existence with and support of the South African Protection of Personal Information Act of 2013 is also assessed. The limitations of dynamic consent are also discussed.