Criminal and Medical Law

Permanent URI for this community

http://hdl.handle.net/11660/16

Browse

Now showing 1 - 20 of 24

Open Access
Are the rights of the disabled a reality in South Africa? Part One
(Faculty of Law, University of the Free State, 2003-12) Reyneke, J. M.
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 leads to exclusion from functioning in a normal way in the community and the denial of the right to function freely in society. Legislation can assist in the prevention of discrimination against such persons and also in their upliftment.
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.
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.
Open Access
Die ontoereikende beskerming van sekswerkers in die Suid-Afrikaanse reg, gesien teen die agtergrond van geweld waaraan hulle blootgestel word
(Faculty of Law, University of the Free State, 2004) Botha, R.
English: This article has as its focus the presence of violence in the life story of every sexworker as well as the attendant problems. Most sexworkers experience violence (from their clients or their pimp) on a daily basis in the pursuit of their presently illegal occupation. The fear of prosecution prevents these workers from reporting violence-related offences committed against them. This currently leaves sexworkers in a precarious position where they have to rely on their own, self-created precautionary measures against violence, which up to now have proven to be highly unsuccessful. By means of statistical information and a review of some violence-related incidents, it is the author's intention to highlight this problem and to recommend the decriminalisation of prostitution in South Africa as the only feasible solution.
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.
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.
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.
Open Access
The impact of the Constitution on the South African criminal law sphere
(Faculty of Law, University of the Free State, 2001) Kruger, H. B.
English: In this article the extent of the impact of the new constitutional dispensation on the South African criminal law sphere is discussed. The influence of the Constitution on certain criminal offences, sentencing, justifiable homicide and specific presumptions are focussed on.
Open Access
The legal liability of hospitals
(University of the Free State, 1997) Retief, Maresa Cronje; Verschoor, T.
This thesis presents an international legal comparative perspective on hospital liability law. The legal systems that are expounded on this subject are: the English law, the Australian law, the Canadian law, the law of the USA and the South African law. The health care systems of various countries are inspected. The hospital is researched in various contexts, and its historical development is researched. The health care system and hospital (setting) of the relevant legal systems are briefly discussed. It is apparent that every legal system that is discussed, has its own unique set of legal principles, legal doctrines and/or legal grounds which are implemented to establish hospital liability. No legal system acknowledges the same legal grounds nor follows the same approach towards hospital liability. The English hospital liability law acknowledges the following legal grounds: (i) Vicarious or indirect hospital liability; (ii) Direct hospital liability; (iii) Hospital liability in terms of the non-delegable duty. The English law is still setting the pace for most other countries. The Canadian law either acknowledges or implements the following legal grounds: (i) Vicarious hospital liability; (ii) Direct hospital liability; (iii) Breach of contract; (iv) The doctrine of ostensible agency is only recommended as a legal ground on which to found hospital liability, at this stage, but is not implemented by courts yet; (v) The non-delegable duty: The existence of this duty had been discussed but has not yet been implemented as an independent legal ground on which to found hospital liability. The Ontario Court of Appeal in Canada has held in Yepremian, that a hospital in Canada does not undertake a non-delegable duty to a patient, whether he presents himself at the hospital or not. On the other hand, there is also a tendency in Canadian hospital liability law, to call the direct duties of the hospital - in terms of its direct or corporate liability - non-delegable duties. The Australian hospital liability law has implemented: (i) Vicarious hospital liability; (ii) The non-delegable duty as an independent legal ground which founds hospital liability. However, the non-delegable duty has by such status as founding hospital liability, been referred to as direct liability. There is, however, no indepth discussion of any case law founded on direct liability as an independent legal ground based on fault in the Australian law, id est in the sense of the employer or institution's direct fault-based liability founded on the breach of its direct duty which induces direct negligence resulting in harm or injury. Most Australian decisions on hospital liability have been founded on the nondelegable duty. Australian courts have accepted that a hospital may undertake a non-delegable duty (of providing medical care) to its patients. The existence of the non-delegable duty has been accepted in various circumstances, although there is still a difference of opinion as to when the non-delegable duty exactly may arise. Hospital liability law in the USA has by far, presented the most developed and widest variety of legal grounds on which to found hospital liability. They acknowledge and implement: (i) Vicarious hospital liability; (ii) The doctrines of apparent agency and agency by estoppel; (iii) The direct or corporate liability of a hospital; (iv) Hospital liability in terms of the non-delegable duty. It is, however, unfortunate that some authors and some courts confuse the different independent legal grounds. Due to a lack of a scientific and a disciplined approach, concepts and requirements of distinct or specific legal grounds are not respected and kept apart, but confused. The South African hospital liability law only implements two legal grounds: (i) Vicarious hospital liability; and (ii) Breach of contract. Development of this area of the law is highly recommended.
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.
Open Access
'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.
Open Access
Negotiorum gestio by geneeskundige ingrepe
(University of the Free State, 2011-01) Claassen, Nicolaas Johannes Brand; Verschoor, T.
Abstract not available
Open Access
"'n Ondersoek na nie-patologiese ontoerekeningsvatbaarheid en die regverdiging vir die voortbestaan van gesonde outomatisme en aanverwante verwere in die Suid-Afrikaanse strafreg"
(University of the Free State, 2005-11) Lambrechts, Hein; Verschoor, T.
English: A controlled, voluntary human act is the basic element of criminal liability. If the act is not subject to the will, it is involuntary and excludes the act and therefore criminal liability. This defence is known as automatism. This condition of involuntariness can arise as a result of insanity or due to reasons other than insanity. If the accused were insane at the time of committing the offence and he successfully raises an automatism defence, he is sent for mandatory confinement in a psychiatric institution. The problem created by this legal provision of mandatory confinement is that an accused who was insane at the time of the crime, but sane at the time of the trial, must be confined in a psychiatric institution even though he is considered sane. In order to avoid this injustice, the courts have distinguished between “insane automatism” and “sane automatism.” Cases where an involuntary action has occurred for reasons other than insanity have involved a defence of "sane automatism” and, if successful, have resulted in full acquittal. The reason for creating the term “sane automatism” was to avoid the said unjustified functioning of the law. Courts worldwide have approached this defence with caution, as it can easily be abused. In Canada there is such strong objection to the sane automatism defence that all cases of automatism are forced into the category of insane automatism in order to protect the public. The protection of the public against dangerous criminals therefore enjoys priority over pursuit of the accused individual’s possible innocence and freedom. The excessive use of the insane automatism defence to this end has resulted in sane automatism becoming legal fiction in Canada. Amendments to legislation in South Africa have given courts wider discretion and they are no longer compelled to confine the accused to a psychiatric institution. The legislation is no longer unjust, with the result that the distinction between “insane automatism” and “sane automatism” is no longer necessary. The position of the courts in the United Kingdom is very similar to that in South Africa. UK courts also have wider discretion in their judgements, and the defence of automatism in the United Kingdom is restricted to cases where there was a total loss of volition. Impaired or reduced volition is not sufficient. The distinction between insane and sane automatism is also applied here, and both external and internal factors are considered when determining the type of automatism. In Australia too little attention is given to the conative mental faculty. An unconscious act may lead to involuntariness, but this is not necessary always the case. A person may also act involuntarily and be conscious of his/her actions. In Australia the courts are inclined to consider only the cognitive mental faculty. Both the cognitive and conative mental faculties must be considered. A wilful act indicates the cognitive mental faculty, i.e. the person was conscious and aware of what he/she was doing. An intended act, on the contrary, indicates the ability of the person to control his/her actions, i.e. the so-called conative mental faculty. The automatism defence (no longer "sane automatism") must still be retained, but as an ordinary defence that is indicative of an involuntary act, and therefore the absence of one of the elements of a crime (but without a specific indication of whether it is sane or insane automatism). Automatism must therefore be limited to grounds for exclusion of the element of an act, i.e. the voluntary and personal conduct of the accused.
Open Access
Ontwikkeling in die Amerikaanse vennootskapswetgewing: die aanspreeklikheidsbeperkte vennootskap as 'n nuwe ondernemingsvorm
(Faculty of Law, University of the Free State, 2001) Snyman, E.
English: The fact that American corporate law is in a constant process of development, is clear from, firstly, the revision of their normal law of partnership since 1986, and, secondly, the incorporation of the limited liability partnership (LLP). The LLP developed as a result of attempts by the insurance industry to impart liability to attorneys and auditors when savings and loan societies collapse. The idea of a partner in a law or audit firm being liable for millions of dollars, created the need to limit the vicarious liability of partners. The limited liability partnership was created to this end. By 1996, more than 40 states had accepted limited liability partnership provisions into their partnership legislation. The general principle accepted by these states, is that a LLP could limit or exclude the joint and several liabillity of some or all of the partners for some or all of the duties or liabilities of that partnership. The provisions incorporated into the Uniform Partnership Act of 1997, regarding limited liability partnerships, deal chiefly with four aspects, namely (i) the extent of the limitations of a partner's liability; (ii) the voting requirements of establishing a limited liability partnership; (iii) the effect of establishment of an LLP on the partnership agreement; and (iv) the requirements of annual registration or filing.
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.
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.
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.
Open Access
Regsaanspreeklikheid voortspruitend uit medikasiefoute
(University of the Free State, 2007) Jansen, Rita-Marie; Verschoor, T.
English: Worldwide, the prescription, dispensing and administering of medication is the most common form of medical treatment. The number of medication errors made in a medical care system/institution is regarded as a good barometer of the general standard of care in that system or institution. The number of medication errors that come to light, however, is only the tip of the iceberg because such errors can be swept under the carpet more easily than, for instance, botched surgery. Research also indicates that the prescription of medication as form of treatment, is not regarded as the high risk activity that it really is. This research offers a comprehensive source regarding medication errors as seen from a legal perspective. The extent and occurrence of medication errors (prescription, dispensing and administration errors) are discussed with the aim of bringing these to the attention of both lawyers and health care workers. Doctors, pharmacists and nurses often experience uncertainty about their legal position and how to deal with problematic situations. Specific problematic areas are identified and solutions are offered including the following: • The more important legislation with regard to medication treatment is discussed. Interaction between the different statutes and regulations, as well as government policy declarations regarding the prescription and dispensing of medication, is apparently not sufficiently synchronised. This leads to uncertainty amongst health care professionals and increases the chances of medication errors. It is suggested that these aspects be revised and harmonised on an urgent basis. • The “off-label” use of medication is an international phenomenon and part of the generally accepted and lawful use of medication. The increased risk it poses to the patient, as well as to the medical practitioner (with respect to legal liability) is discussed. In South Africa no guidelines are supplied to doctors with regard to the “offlabel” use of medication. More assistance and balanced, objective information from government and pharmaceutical companies is imperative. An amendment to current legislation is suggested. • The problems surrounding the administration of pain medication and especially the failure to give sufficient pain medication, are identified and discussed as one of the most prevalent forms of medication errors. Proposals for legal liability are discussed. • Causation and “loss of a chance” with the focus mainly on examples of medication errors, are discussed and recommendations are made in this respect. • Suggestions regarding legislation with regard to training, legal liability and the use of technology and reporting systems in the prevention of medication errors, are discussed. The implementation of a system approach is discussed and recommendations are made in this regard.
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.
Open Access
Sexual Offences Courts in South Africa: quo vadis?
(Faculty of Law, University of the Free State, 2008-12) Kruger, H. B.; Reyneke, J. M.
English: Since the establishment of the first Sexual Offences Court in Wynberg in 1993, various developments have taken place that include, but are not limited to, the following : several investigations into these courts were undertaken; the Sexual Offences and Community Affairs Unit (SOCA Unit) was established; a blueprint for Sexual Offences Courts was drafted and later refined; and, by 2007, the number of Sexual Offences Courts had increased to 59. These courts have performed exceptionally well compared with general regional courts and conviction rates rose to 70 per cent on average. Despite the obvious success of these courts, the Minister of Justice and Constitutional Development declared a moratorium on the establishment of additional Sexual Offences Courts pending the outcome of an evaluation of existing Sexual Offences Courts. In this article, a synopsis of the development of Sexual Offences Courts is given and the subsequent evaluation commissioned by the Minister is assessed and is supplemented with recommendations to enhance efforts to combat sexual offences through the Sexual Offences Courts.