Research Articles (Criminal and Medical Law)
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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 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.Item 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.Item 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.Item Open Access Sexual Offences Courts: better justice for children?(Faculty of Law, University of the Free State, 2006-12) Reyneke, J. M.English: Child victims of sexual abuse are vulnerable witnesses who experience trauma and secondary victimisation when they testify in sexual abuse cases. Sexual Offences Courts aim to alleviate this problem in various ways. The main focus of this article is to examine the prescribed blueprint for Sexual Offences Courts in order to determine whether blueprint-compliant Sexual Offences Courts contribute to better justice for child victims of sexual offences. Each blueprint requirement is therefore analysed with the aim of determining whether possible advantages for child victims can be identified.The conclusion is reached that substantial advantages for child victims are provided by blueprint compliant Sexual Offences Courts. By 2005 54 Sexual Offences Courts were established countrywide and official statistics indicate that these courts are very successful. However, despite numerous commitments by government to establish more of these courts, a moratorium on the establishment of new courts was announced. It is argued that blueprint compliant Sexual Offences Courts do indeed provide better justice for children and therefore more of these courts should be established at a much faster rate.Item 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.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 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.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.