Scielo RSS <![CDATA[Obiter]]> http://www.scielo.org.za/rss.php?pid=1682-585320220001&lang=en vol. 43 num. 1 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Medical negligence and the <i>res ipsa loquitur </i>doctrine in the administration of cancer treatment in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000100001&lng=en&nrm=iso&tlng=en Medical negligence is one of the leading socio-economic challenges faced by the health sector in South Africa and across the globe. This is attributed to the fact that millions of Rands are paid out by private and public hospitals to victims of medical malpractice on a daily basis, with dire consequences. For example, health establishments, particularly in the public sector, are unable to realise their duty to provide health care to millions of disadvantaged people as enshrined by section 27(1) of the Constitution┬╣ as funds meant to provide health care go instead towards the payment of medical malpractice claims. Furthermore, medical practitioners in private and public hospitals now practise defensive medicine in order to avoid being sued for medical malpractice and this results in compromised health care for patients. This contribution aims to prove that people living with cancer can be exposed to medical malpractice just like patients who suffer from any other chronic medical condition, and also to dispel the myths connected to cancer treatment and care from a medical and a social perspective. In addition to the above, the contribution exposes the importance of the res ipsa loquitur doctrine (the thing speaks for itself) in solving complex medical negligence cases, with the aim of ensuring that justice is served to all patients living with cancer or other health impairments. <![CDATA[<b>Living with albinism in South Africa: uncovering the health challenges from a legal perspective</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000100002&lng=en&nrm=iso&tlng=en The Cancer Association of South Africa (CANSA) has acknowledged that persons with albinism face the highest risk of developing skin cancer. While information concerning their susceptibility to cancer is very important, CANSA observed that such information is communicated to persons with albinism at a very late stage, especially those living in rural areas of South Africa. The Albinism Society of South Africa has revealed that the national health system has failed to adequately consider and take into account the health care needs of persons living with albinism. Very few persons with albinism have access to sunglasses with a high UV protection screen to relieve light sensitivity, or to preventative services such as dermatological skin checks, eye checks and eye corrections. This article establishes that the specialised health intervention required by persons with albinism is not prioritised in South Africa's health care plan. The author argues that a well-timed intervention into the health needs of persons with albinism will have a penetrative influence on the fate of a small yet significant population. The recognition of the right of access to health care in the South African Constitution affords persons living with albinism the right to challenge the government's failure to provide them with essential health care services and health accessories. This article also discusses the pertinent clinical aspects of albinism, with the aim of contextualising the legal discussion in the rest of the article. <![CDATA[<b>The disappearance of refugee rights in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000100003&lng=en&nrm=iso&tlng=en This article critically examines the nature and scope of the type of refugee protection offered by South Africa to people fleeing their home countries. It offers an analytical demonstration of how South Africa has gradually developed conflicted and ambivalent attitudes towards the protection of refugees and asylum seekers. South Africa's conflicted and ambivalent attitudes towards refugee protection are evident in several amendments made to the refugee regime, to restrict the enjoyment of refugees' socio-economic protection. The purpose of this article is therefore to demonstrate that the ongoing amendments to the refugee legal framework - without harmonisation with socio-economic laws - increasingly result in the disappearance of refugee rights. This, in turn, results in the creation of disgruntled refugees; through protests, they express their dissatisfaction with ineffective protection, and consequently demand to be resettled or relocated to other countries for better and effective protection. <![CDATA[<b>An evaluation of Lesotho's right to "expropriate" the water in the treaty on the Lesotho Highlands Water Project in a "conflict of uses"</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000100004&lng=en&nrm=iso&tlng=en This article explores the contemporary spectre of "expropriation" within the framework of the Treaty on the Lesotho Highlands Water Project (LHWP). The LHWP is an enigma in both its scope and practical application since it is governed by two apparently complementary treaties, and it seemingly incorporates the domestic laws of both South Africa and Lesotho. This is compounded by the contradictory legislation that has been promulgated by Lesotho that prioritises its domestic water uses despite the entrenched provisions of the LHWP regime that prioritises the supply of water to South Africa. This uncertainty has significant implications for a "conflict of uses" in the LHWP that may trigger an expropriation bid by Lesotho. This article unmasks the possible response of the LHWP legal framework to Lesotho's right to "expropriate" the water in the LHWP in light of this ambiguous and confounding legal framework. <![CDATA[<b>Achieving gender neutrality in contracts</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000100005&lng=en&nrm=iso&tlng=en Written contracts are expressed through language, which has legal consequences. Language is reflective of preconceptions and misconceptions of a particular matter or circumstance and language usage, being of a personal nature, may also impact a person's dignity. This can be illustrated in the use of gendered language, which has historically been perfectly acceptable but have fallen in disfavour due to the potential preconceptions, presumptions, and biases that are inherent in stereotypical maledominated language terms. The approach to replace the male term with a female equivalent still retains gendered language and fails in using gender-neutral language in a world where gender is not as simple as being classified as either male or female. Against this background, this article considers the existing gender-based framework, legal framework, and language framework to assess gender-based language found in written contracts and proposes a contract language framework in order to achieve gender neutrality in contracts. <![CDATA[<b>The ethos of tolerance of diversity in post-apartheid jurisprudence</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000100006&lng=en&nrm=iso&tlng=en This article examines the South African judiciary's understanding, interpretation, and application of the ethos of tolerance of diversity. The case law analysis shows that the courts treat tolerance of diversity as a constitutional value that derives from the Preamble and founding values of the Constitution of the Republic of South Africa, 1996. It also reveals that the courts moreover deduce the ethos of tolerance of diversity from the Bill of Rights, which entrenches rights and protects freedoms that could be classified as the building blocks of tolerance and diversity. Four major themes emerge from the analysis of the judiciary's conceptualisation of the ethos of tolerance of diversity. These are the principles of reasonable accommodation; the right to be different; racial sensitivity; and transformation. <![CDATA[<b>Online learning: shaping the future of law schools</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000100007&lng=en&nrm=iso&tlng=en The Covid-19 pandemic has wreaked havoc globally and has forced people to change their outlook and do things differently. The pandemic has also affected the education sector. It has brought classes to a halt and forced universities to shut down at times. Significantly, the pandemic has also forced law schools to move away from traditional methods and practices and look for creative ways in which to save the academic year. Inadvertently, it has provided an opportunity to revolutionise and revitalise legal education. As technology becomes ever-present and user-friendly, law schools should embrace the potential of online learning to enhance the value of teaching, expand the learning potential of students and, most importantly, equip students for the challenge of lawyering in the twenty-first century. There are risks and rewards to online learning, but key to education in the new millennium is for law schools to adapt to and embrace online learning with all its challenges. The article provides a cursory general overview of online learning in law schools with specific focus on how law schools have been adapting to online education in recent times. Crucially, the article explores ways in which law schools can overcome key challenges in transitioning to online learning. Going forward, the article looks at how law schools can design and implement online education in a manner that takes advantage of the new modality's potential. <![CDATA[<b>Constitutionalism and public health emergencies: COVID-19 regulations in South Africa and the constitutional and human rights slippery slope</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000100008&lng=en&nrm=iso&tlng=en This article provides a theoretical and factual-legal analysis of South Africa's response to the COVID-19. The state of disaster and its related COVID-19 regulations are interrogated from a constitutional and human rights perspective. It is conceded that public health emergencies call for a limitation of certain rights to control or curb the spread of the pandemic. However, the measures adopted by the South African government were in some respects disproportional and violated the constitutional and human rights principles. This article carefully examines the South African approach in instances where the constitutional and human rights of its people were brought into contention. For purposes of clarity, the focus is on documented accounts of the violations of fundamental human rights during the declaration and the operation of Lockdown Regulations in terms of the Disaster Management Act 2002. <![CDATA[<b>Should we abolish the delict of seduction in customary law: <i>quo vadis </i>South Africa?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000100009&lng=en&nrm=iso&tlng=en This article provides a theoretical and factual-legal analysis of South Africa's response to the COVID-19. The state of disaster and its related COVID-19 regulations are interrogated from a constitutional and human rights perspective. It is conceded that public health emergencies call for a limitation of certain rights to control or curb the spread of the pandemic. However, the measures adopted by the South African government were in some respects disproportional and violated the constitutional and human rights principles. This article carefully examines the South African approach in instances where the constitutional and human rights of its people were brought into contention. For purposes of clarity, the focus is on documented accounts of the violations of fundamental human rights during the declaration and the operation of Lockdown Regulations in terms of the Disaster Management Act 2002. <![CDATA[<b>SCA clarifies the term "motor vehicle" in Road Accident Fund act 56 of 1996: <i>The Road Accident Fund v Mbele </i>[2020] zasca 72</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000100010&lng=en&nrm=iso&tlng=en This article provides a theoretical and factual-legal analysis of South Africa's response to the COVID-19. The state of disaster and its related COVID-19 regulations are interrogated from a constitutional and human rights perspective. It is conceded that public health emergencies call for a limitation of certain rights to control or curb the spread of the pandemic. However, the measures adopted by the South African government were in some respects disproportional and violated the constitutional and human rights principles. This article carefully examines the South African approach in instances where the constitutional and human rights of its people were brought into contention. For purposes of clarity, the focus is on documented accounts of the violations of fundamental human rights during the declaration and the operation of Lockdown Regulations in terms of the Disaster Management Act 2002.