Doctoral Degrees (Criminal and Medical Law)
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Item 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.Item 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.Item 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.Item 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.Item 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.Item 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.Item Open Access Die Suid-Afrikaanse strafreg en die noodsaaklikheid van voortdurende vernuwende interpretasie - ’n kritiese evaluering(University of the Free State, 2015-01-24) Gertenbach-Fowler, Henriette; Oosthuizen, H.; Verschoor, T.Abstract not availableItem 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.Item 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.Item Open Access Negotiorum gestio by geneeskundige ingrepe(University of the Free State, 2011-01) Claassen, Nicolaas Johannes Brand; Verschoor, T.Abstract not available