Medical interventions are usually justified by the patient's consent, but for such consent to be valid, it must be based on adequate and correct information. However, withholding distressing information from patients is a very old practice among doctors who believe in the ethical principle of non-maleficence. This practice enjoys a measure of legal endorsement in the form of a so-called I therapeutic privilege I which restricts the doctor's duty to inform where the disclosure of information could harm the patient. The ambit of the defence of therapeutic privilege is still uncertain in South African law. This article attempts to contribute to the debate whether or not this defence still has a place in our law, and if so, how its boundaries are to be defined. The criticism levelled at the therapeutic privilege is exposed and evaluated and certain submissions are made. The main submission is that therapeutic privilege should be acknowledged within very limited boundaries.
In this article I have tried to demonstrate that PW Botha is allegedly responsible for the commission of grave violations of human rights under his government's policy of apartheid; apartheid is a crime against humanity which, as such, confers universal jurisdiction on the foreign municipal courts of every state in the world; Botha enjoys no immunity whatsoever for the commission of these international crimes; and despite Botha's failure to apply for amnesty at the TRC, and despite the current South African government's ability to do so, there is an unwillingness, or else an apathy, to prosecute him.
This paper will argue that globalisation of trade and hence the birth of international uniform laws has brought about changes in substantive law which need to be recognised by municipal systems. Specifically the parol evidence rule in common law will be put increasingly under pressure. It is argued that the sacred cows of common law namely the inadmissibility of evidence of a pre-contractual nature and hence the subjective intent of parties are outdated and change is required. As Lord Steyn in an address to the University of Sydney pointed out the common law is possibly swimming against the tide. However changes are needed specially the inclusion and admissibility of subsequent conduct. The CISG has recognised that business people do not understand rules which exclude considerations on how the parties interpret their contracts. This paper will highlight that contracts are based on bargain and exchange. The classical theory which suggests that contracts for a homogenous product, concluded between two strangers who transact in a perfect spot market is outdated and wrong. As a result of the conflict between article 8 of the CISG and the parol evidence rule the outcome of litigation will yield possibly a different result as seen in recent US cases such as in MCC-Marble Ceramic Center Inc v Ceramica Nuova D'Agostino, SPA. However it is recognised that the common law has tools, such as rectification, which will bring about similar results as under the CISG. The time has come for the common law to slowly change and embrace international trends.
This article discusses the problems inherent in the dual condition of the South African legal system in terms of which the dominant Western oriented common law applies to everyone, while the servient African law applies to Africans only. Consequently, a dichotomy between 'official' African law which seeks to rid itself of those cultural notions that are repugnant to Western civilisation and 'living' African law which retains its indigenous moral values has developed within the servient African system. The latter version applies in actual social practice and is part of the lives of its adherents. My approach rejects the 'official' version because the removal of African moral values by the application of the repugnancy clause has left African law distorted beyond recognition. This version is part of the colonial project which sought to dehumanise Africans and should not be one of the sources of our postapartheid African law. On the contrary, 'living' African law is the version that the adherents of the system continued to apply as part of their resistance to colonial dehumanisation and should be judicially and legislatively affirmed. Unfortunately, our courts continue to regard the distorted version as a legitimate precedent and rely on the instruments, policies and judgments that were used in the past in pursuit of the infamous colonial 'native' administration project. I submit that our legal practice is required to embark on the daunting task of developing the 'living' version that affirms the aspirations of its adherents as required by the constitution.
Radio and television not only provide a platform for communication, but are instrumental in shaping ideas and opinions. Recognising this, governments have always attempted to regulate broadcasting. One of the most regulated fields of broadcasting is broadcast indecency. In South Africa broadcasting is regulated by the Broadcasting Monitoring and Complaints Committee (BMCC) and the Broadcasting Complaints Commission of South Africa (BCCSA). The Codes of the Independent Communications Authority of South Africa (ICASA) and the BCCSA contain no reference to 'indecency'. Specific depictions of sexual conduct as descriptionbed in the Code and explicit sexual conduct which degrades a person in the sense that it advocates a particular form of hatred based on gender, and constitutes incitement to cause harm are prohibited. In England the BBC regulates public broadcasting while the independent television stations are supervised by the Independent Television Commission. Although the Broadcasting Standards Commission(BSC) decides on matters of taste and decency, the guidelines issued by the BSC for broadcasters contain no references to 'indecency'. In the United States the Federal Communications Committee(FCC) determines broadcast policy. The FCC continues to use the term 'indecency and has as a result of many judgements, arrived at a workable definition of indecency and a satisfactorily approach to the issue of indecency for the FCC.
This article attempts to make a comparison of the parole boards of South Africa, United Kingdom and Canada. The benchmark for this comparison includes foundations; structures; form of enquiry; and criteria used by the parole boards to select offenders. Parole boards in South Africa have been established in terms of the Correctional Services Act, which also provides for the selection of members of the parole boards. With regard to rights, opinions have been expressed, among others from parole boards members themselves, that parole is a privilege and not a right. In general, parole boards were primarily created as the authority to oversee the new arrangements of parole as conditional release of offenders under supervision. Parole boards in the form of prison administrators played a major role in the creation of modalities of parole. In South Africa, the possible participation of courts in matters of release on parole has been mooted in the defunct Parole and Correctional Supervision Amendment Act. The involvement of the political bureaucrats in parole matters has resulted in the parole boards losing the link between the rationale for release on parole and criteria used to select suitable offenders.
In this contribution recent legal developments in Botswana, Lesotho, Namibia and South Africa with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.