Masters Degrees (Criminal and Medical Law)
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Item 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.Item 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.Item Open Access Toestemming as verweer by sportverwante beserings(University of the Free State, 2005) Theunissen, Michael; Verschoor, T.Abstract not availableItem Open Access 'n Kritiese ondersoek na dronkenskap as verweer in die Suid- Afrikaanse strafreg(University of the Free State, 2013-12) Viljoen, Marina; Botha, RindaEnglish: 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.Item Open Access Straf- en geneeskundigregtelike ondersoek na die statutêre oortredings verbandhoudend met sekere reproduktiewe mediese prosedures(University of the Free State, 2013-06) Daffue, Belinda A.; Oosthuizen, H.; Verschoor, T.English: The different statutory offences applicable to surrogacy and the termination of pregnancies are identified in order to contribute to the efficient lecturing of medical law as independant field of study to law and medical students. In the light of the challenges facing the criminal justice system and the health care system in South Africa, inter alia due to a lack of means, the question is posed whether the criminilization of acts applicable to reproductive medical procedures should or could be meaningfully dealt with within the present criminal justice system. The composition of the health care system in South Africa and the medical ethical obligations as contained in the National Health Act 61 of 2003 are explained with the Constitution of South Africa in mind. Together herewith the role of the Health Professions Council of South Africa in its dealing of contraventions by its members is enunciated. The medical ethical principles are discussed with reference to the well-known four pillars of medical ethics in order to ascertain their applicability in evaluating the lawfulness of the conduct of the health care worker. The practical application of the ethical rules in the execution of surrogate agreements and termination of pregnancies are discussed with reference to the legal position in countries inter alia such as the United States of America and England. The applicable legislation is evaluated against the backdrop of the principle of legality. In view of the failure of the legislature to apply the principle of legality in several sections of the Children‟s Act 38 of 2005, the National Health Act 61 of 2003 and the Choice of Termination of Pregnancy Act 92 of 1996, the purpose of the legislature is discussed and recommendations are made for the amendment thereof.