JJS 2006 Volume 31 Issue 1

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  • ItemOpen Access
    The protection of prisoners’ rights to health care services in South African law: is it adequate?
    (Faculty of Law, University of the Free State, 2006) Singh, A.; Maseko, T. W.
    English: A recent newspaper article1 depicted a dismal picture of the situation behind the walls of the largest prison in the Southern hemisphere. It was revealed that at least four prisoners die of HIV/AIDS at Westville Prison every month because the Department of Correctional Services does not have the resources to provide treatment. In terms of Section 35(2)(e) of the South African Constitution prisoners are entitled to medical treatment at state expense, dependant of course on the availability of resources. The issue of the availability of resources has seen a barrage of case law being brought to the fore challenging section 35(2) (e). This article examines some of these cases and also attempts to shed light on the plight of prisoners in accessing their rights to health care services.
  • ItemOpen Access
    Breach of confidentiality and the duty to warn in medical law: examples from clinical psychiatry
    (Faculty of Law, University of the Free State, 2006) Steyn, C. R.
    English: This article addresses various factors involved in the tension that may arise between breach of confidentiality on the one hand, and dereliction of the duty to warn, on the other, in the context of medical law. Per illustration, examples from clinical psychiatric practice, in which the sharing of personal information is especially relevant, are featured. In sum, a practitioner must be reasonable in negotiating the proverbial tightrope: if he or she reveals too much, liability can arise, and, if he or she reveals too little, liability can arise. In medical law, the standard of reasonableness is measured with reference to “the reasonable practitioner”. Weighing up various factors (discussed herein), the reasonable practitioner takes confidentiality as the point of departure; only if there is a compelling reason to override confidentiality, will it afford legal justification to the practitioner.
  • ItemOpen Access
    Are the restrictive provisions of sections 2(1)(c) and 5(5)(b) of the Choice on Termination of Pregnancy Act 92 of 1996 unconstitutional?
    (Faculty of Law, University of the Free State, 2006) McQuoid-Mason, D. J.
    English: Sections 2(1)(c) and 5(5)(b) of the Choice on Termination of Pregnancy Act 92 of 1996 only allow a termination after the 20th week of gestation on very limited grounds. No provision is made for terminations of pregnancies arising from rape or incest. Therefore women survivors of rape or incest who, for reasons beyond their control, postpone their decisions to terminate until the third trimester will not qualify for a legal abortion unless they fall under the existing grounds in the Choice Act. The provisions of the Choice Act regarding the third trimester are more restrictive than those in section 3(1) of the Abortion and Sterilization Act 2 of 1975. The latter did not adopt a trimester approach and allowed a termination on the grounds of rape or incest at any stage of the pregnancy — subject to certain conditions concerning the verification of the cause of the pregnancy. By excluding rape and incest as grounds for termination of pregnancy in the third trimester the Choice Act imposes an “undue burden” on women who are survivors of rape or incest and their exclusion is unconstitutional.
  • ItemOpen Access
    An international perspective of restorative justice practices and research outcomes
    (Faculty of Law, University of the Free State, 2006) Naude, B.
    English: Restorative justice is not a new concept as it was the dominant criminal justice model in ancient Greek, Roman and Arab civilisations as well as indigenous communities in South Africa, Australia, New Zealand and Canada. Western countries re-discovered restorative justice in the mid 1970s and by the end of the 1990s most Western countries had legalised restorative justice programmes. South African legislation also makes provision for restorative justice processes. Restorative justice is a victim-centered response to crime that provides opportunities for those most directly affected by crime — the victim, the offender, their families, and representatives of the community — to be directly involved in responding to the harm caused by the crime. It can be applied at the formal and informal level. At the formal level the criminal justice system can apply it during the pre-trial process, the pre-sentencing process, or in pre-release programmes. At the informal level it can be applied to solve a variety of community conflicts, neighbourhood conflicts, family conflicts and interstate conflicts. Most restorative justice cases are referred by magistrates, prosecutors and probation officers. Common referrals are vandalism, theft of property, car theft, burglary, shop theft, attempted homicide, assault and domestic violence and it is appropriate for males, females and young offenders. A large number of research findings across countries indicate that restorative justice is very effective and that most victims and offenders were satisfied with the outcomes of the process. Most participants indicated that they had been fairly treated and that they would again participate in a restorative justice process. The criminal justice system is criticised for being a European worldview of a retributive justice philosophy that is largely offender focussed and guided by codified laws and rules of procedure while ignoring the needs of the victim. Restorative justice is, however, also criticised for adopting the legal framework and definitions of crime and that it can put victims’ rights at risk. It is also questioned whether restorative justice empowers victims as the process rather seems to entrench them as victims. It is furthermore argued that restorative justice can widen the net of social control if it is mostly used for minor offences.
  • ItemOpen Access
    The mixed legacy underlying Rawls’s Theory of justice
    (Faculty of Law, University of the Free State, 2006) Strauss, D. F. M.
    English: The Theory of justice advanced by Rawls must be understood within the context of factual legal approaches (such as positivism and pragmatism) that eliminated normative considerations. By contrast, Rawls argues for an account of the role of normative legal principles by proceeding from an idea introduced during the Enlightenment, namely that of a social contract. However, the way in which he speaks about law, morality and virtues clearly demonstrates his indebtedness to Ancient Greek and Medieval conceptions as well. His assumption is that it is possible for normal human beings to arrive at a rational consensus by assuming that these individuals not only do have a normative (moral) awareness but that they are also capable to take distance from their factual societal position and relations (the veil of ignorance) in order to be open to moral principles acceptable to every normally developed human being. This article sets out to investigate the historical roots of the idea of a just society by contrasting the classical Greek and Medieval ideals with that of modern approaches since the Renaissance, particularly the account found in natural law theories about the supposed social contract lying at the foundation of an ordered and just society. The open-ended problems present within this legacy — particularly regarding the inherent shortcomings of both atomistic and holistic orientations implicit in the mainstream views on being human and on the place of the latter within human society and the state — are then related to the mixed assumptions underlying Rawls’s theory at a basic level. It will be argued that although his intention is to advocate the basic elements of a constitutional democracy, this aim is threatened by the latent holistic undertones accompanying his entire theory.
  • ItemOpen Access
    Kafka’s African nightmare — bureaucracy and the law in pre- and post-apartheid South Africa
    (Faculty of Law, University of the Free State, 2006) Du Plessis, M.; Pete, S.
    English: This article sets out to examine the legal system of both pre and post-apartheid South Africa, through the lens of Franz Kafka’s seminal novel “The Trial”. The central contention of the article is that Franz Kafka’s nightmare vision serves not only as a historical point of reference anticipating the insanity of the apartheid legal bureaucracy, but also acts as an injunction to South Africa’s judges and lawyers to ensure that the legacy of the apartheid period does not negatively affect service delivery in post-apartheid democratic South Africa. The article begins with a discussion of the truly Kafkaesque nature of law in South Africa during the apartheid era. The main legislative pillars of the apartheid system are discussed, as well as the human cost exacted by apartheid policies. The article then moves to a discussion of the South African legal system following the apartheid era. While acknowledging the massive shift away from the nightmare of apartheid, certain disturbingly Kafkaesque trends are noted within the bureaucracy serving the democratic South African state.Various efforts by the South African legislature and courts to combat these trends are analysed and discussed, including various legislative measures enacted since the demise of apartheid, and the development of innovative supervisory interdicts by the courts.
  • ItemOpen Access
    Polygyny and HIV/AIDS: a health and human rights approach
    (Faculty of Law, University of the Free State, 2006) Kelly, L. M.
    English: Concurrent sexual networks have been identified in empirical studies as significantly amplifying rates of HIV transmission in comparison to sequential monogamy or sporadic sexual encounters. This paper examines how states’ legal condonation of discriminatory, high-risk concurrent sexual networks, including polygyny, violates women’s human rights and undermines their sexual and reproductive health. Because of its gender asymmetry and aggravation of marital inequality, polygyny places women at a greater risk of HIV infection and restricts their ability to insist on partner fidelity, negotiate condom use and leave high-risk relationships. The continued legal recognition of polygyny at the point of marriage formation by the majority of Southern African states violates women’s equality, health, and dignity rights. This paper stresses states’ international obligations to cease deferring to parallel legal systems that perpetuate inequality within marriage and family life. In moving to discourage polygyny, this paper posits an engagement approach that would continue to protect women’s rights within existing unions while discouraging the practice at the point of marriage formation. Going forward, HIV prevention programmes can provide useful fora to advance social justice and equality within marriage and intimate relationships when they are evidence-based and respond to the diverse realities of women’s lived sexual and marital experiences. Programmes that address social constructions of gender and sexuality will likely prove the most effective in discouraging polygyny and advancing transformative gender equality.