Doctoral Degrees (Law of Procedure and Law of Evidence)
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Item Open Access Mediation as an alternative to litigation with special reference to medical negligence claims(University of the Free State, 2021-09) Muller, Errol Cedric; Swanepoel, C. F.In the recent past, healthcare in South Africa faced, and continues to face, considerable challenges related to an increase in medical negligence claims. The consequences of this increase in claims affect both the public and the private healthcare sectors. Primary healthcare at public hospitals and clinics suffers, because money is spent on legal fees and claim pay-outs, instead of its intended purpose of providing healthcare. Private hospitals and medical professionals are confronted with ever-increasing indemnity insurance premiums, doctors practice defensive medicine to avoid claims, and private healthcare users pay more for private healthcare. The conventional method of resolving medical negligence disputes is through adversarial court litigation. The parties enter into a trial by battle, they present their evidence and a presiding officer renders a win–lose judgment. Litigation, and the litigation of medical negligence claims, in particular, is expensive, time consuming, complex, and emotionally taxing, and the eventual outcome often fails to satisfy the needs of the litigants. Moreover, attempting to resolve medical negligence issues through adversarial processes does not promote normative constitutional values, such as dignity and equality and, importantly, access to justice. This necessitates legal reform and the adoption of alternative and transformative practices to dispute resolution. It is argued in this study that mediation offers a viable alternative to litigation generally, and for medical negligence claims, specifically. Mediation, in its barest essence, is third-party (mediator) -facilitated dispute resolution through negotiation. The process is less expensive, less time consuming, and uncomplicated, and party oriented. Mediators assist participants to create their own solution based on their needs and interests, and the mediation process is not aimed at finding a winner or a loser. Medical negligence claims are often traumatic for both the injured patient and the medical professional/s who treated the patient. Having the opportunity to resolve their dispute in a dignified, non-threatening environment, on a level playing field, is something litigation simply cannot provide. Significantly, the process of mediation enhances the constitutional imperative of access to justice in the context of medical negligence claims on more than one level. The parties have access to a process that provides them with the opportunity to create their own solution to a dispute, using a process that is party oriented, quick, and less expensive than litigation. The cost and time savings enhance social justice by decongesting court roles, freeing up funds for primary healthcare, reducing the cost of private healthcare and increasing confidence in the rule of law. The judiciary and the legislature, through various judgements and statutory enactments, have demonstrated their support for the use of mediation as an alternative to litigation. The previous minister of Health and several other commentators, academics and practicing mediators have voiced their support for using mediation. The prevailing adversarial culture amongst legal practitioners and the public, in particular, is an obstacle to the more generalised use of mediation. However, and conversely, transforming adversarial thinking and practices could be the ultimate solution to institutionalising mediation. The main drivers behind an effort to radically change legal culture, away from litigation, towards more facilitative dispute resolution mechanisms, will necessarily have to come from the legal profession. Education is the vehicle for transformation, starting from basic education, and moving on to tertiary education and continued professional education. Confidence in the mediator and trust in the process are indispensable requirements for parties when they elect to mediate a dispute. A properly trained mediator is, therefore, crucial for facilitating the process, particularly in medical negligence claims. Mediators in medical negligence matters must, in addition to conventional training, receive specialised training in aspects related to facilitating these types of claims.Item Open Access Simplification of the South African criminal trial process: a psycholinguistic approach(University of the Free State, 1998-11) Erasmus, Deon; Verschoor, TEnglish:In this research the validity of the following two hypotheses are tested within the broad framework of the right of an accused person to a fair trial, as embodied in section 35 of the Constitution of the Republic of South Africa, Act 108 of 1996: .. The criminal trial process is a communicative process in essence which aims at ensuring a fair trial for undefended accused persons; and • Ineffective communication takes place during the criminal trial process. The concept of a fair trial is discussed within a jurisprudential and communicative framework. In order for the criminal trial process to comply with the constitutional requirement of a fair trial the process itself has to be fair. The aim of the criminal trial process is thus to ensure a fair trial. However, in order to be fair, the process must be intelligible and accessible to all participants, especially in the case of undefended accused persons. It is pointed out that the criminal trial process is indeed a communicative process and that various factors impact negatively on communication."Distorted" communication is one of the factors leading to an undefended accused not receiving a fair trial. The criminal trial process is identified as a primarily oral process. Procedural explanations given to accused persons during the process are identified and the content of these procedural explanations is ascertained within the framework of case law and legal literature. These procedural explanations are indeed instances of communication between the presiding officer and the undefended accused. It is accordingly submitted that the first hypothesis is supported by both the positive law and communication theories. In order to test the validity of the second hypothesis, a field study was undertaken, employing a qualitative research methodology. Ten sample cases were identified and attended at court 30, Gelvandale Magistrate's Court, Port Elizabeth. The undefended accused persons in those cases were chosen as subjects of the empirical research. The purpose of the field study was to determine the level of intelligibility of procedural explanations afforded to the subjects by the presiding officer. In order to evaluate the information gathered during the field research, a norm to test the intelligibility of the procedural explanations had to be adopted. After evaluating available norms, the psycholinguistic approach of the Charrows was adopted. The performance of the subjects who took part in the field study was evaluated. It became evident that the subjects who took part in the field study, on average, understood only 37% of the procedural explanations afforded to them by the presiding officer. It is accordingly submitted that highly ineffective communication took place during the field research and the second hypothesis is supported by the results of the field study. The low level of intelligibility of the procedural explanations may have the result that on average, the undefended accused persons who took part in the research project did not receive a fair trail. Suggested instances of remedial action are accordingly advanced. It is suggested inter alia that legal aid should be afforded to undefended accused persons on a much larger scale and that a multi-disciplinary task team be appointed to re-address the position of the undefended accused.Item Open Access The best interests of the child in school discipline in South Africa(Tilburg University, 2013-06-28) Reyneke, Jacomina Margaretha; de Groof, J.; Pretorius, J. L.; van Genugten, W. J. M.No abstract available.Item Open Access The emergence of a modern international criminal justice order(University of the Free State, 2006-05) Swanepoel, Cornelis Francois; Fick, C. P. Van der MerweEnglish: This study has investigated the emergence of an international criminal justice order from its inception to its current status. It has investigated the emergence of an international criminal justice order by referring to: (1) the early attempts by nations to control the waging of war; (2) the influence and impact of the Nuremberg and Tokyo International Criminal Tribunals; (3) the emergence and rooting of international human rights and humanitarian law in coexistence with international criminal law, particularly since the adoption of the 1949 Geneva Conventions; (4) the influence and impact of the international criminal ad hoc tribunals for the former Yugoslavia and Rwanda; (5) recent attempts by states to exercise universal jurisdiction such as in the Pinochet and Congo cases; (6) the establishment of the International Criminal Court and numerous aspects of international criminal law that have been established by the Rome Treaty creating the Court; (7) the obstacles that are faced by the court; (8) other transitional justice mechanisms in an ongoing attempt to provide accountability and redress where serious infringements of international human rights and humanitarian law have occurred; and (9) a South African perspective of the past and current status of international law in domestic law. It has established that although the sovereignty and equality of states remains a cornerstone of international law, inroads have been made into the doctrine of absolute state sovereignty to the extent that it is now universally recognised that certain crimes are so reprehensible in their nature, that they warrant prosecution wherever they are committed, no matter by whom they are committed. It has further established that international criminal law and justice did not evolve overnight and most of its current status is ascribable to unfortunate and indescribable human suffering. It has provided a historical perspective of the early attempts to regulate the waging of war, and showed the impact of the International Military Tribunal at Nuremberg and Tokyo, most significantly establishing individual accountability as opposed to only state accountability. The latter development led to an introduction, resurgence and development of human rights and particularly humanitarian law subsequent to World War II, to the extent that the destiny of international criminal law is unavoidably interwoven with the former two branches of international law. It proceeded to record and demonstrate the impact on international law generally and international criminal law in particular, with the establishment of the ICTY and the ICTR. It has demonstrated that the establishment of these two ad hoc tribunals provided impetus to renewed calls for the establishment of a permanent International Criminal Court and has greatly contributed to the recording and further development of international criminal law. Lastly, it has provided much impetus for states to exercise universal jurisdiction over prosecution of core crimes. The latter impetus provided the background to a chapter in this work indicating positive steps by states to exercise universal jurisdiction. It proceeded to provide the historical background for the eventual establishment of the International Criminal Court and concurrently demonstrated its impact on the development of an international order of justice. The research provided a brief analysis of transitional justice models in recent times, contributing to an analysis of what lessons may be learned from these attempts of various transitional societies. It then proceeded to provide a South African perspective, particularly the evolution of the status of international law in South African domestic law. The thesis concluded that the need for a consistent international criminal justice order is validated and although the international community is continually shocked by ongoing atrocities around the globe, significant progress has been made in recent decades to extend the international rule of law.