An Alternative Approach to Informed Consent

by | Sep 1, 2019 | SALJ V135 I1 2018

An Alternative Approach to Informed Consent

Authors Anton Loggerenberg

ISSN: 1996-2177
Affiliations: Advocate of the High Court of South Africa
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 55 – 72

Abstract

In this article I argue that the time-honoured approach to informed consent in South African medical law is unsound and fails to explain why liability is imposed as a consequence of a healthcare practitioner’s failure to obtain informed consent. I challenge this approach on the basis that a medical intervention performed with a patient’s express consent cannot amount to an assault merely because the healthcare practitioner omitted to disclose a material risk to the patient. Having regard to recent case law, an alternative approach is considered based on an omission which amounts to an actual wrong committed by a healthcare practitioner.

Further Reflections on Wrongfulness in the Law of Delict

by | Sep 1, 2019 | SALJ V135 I1 2018

Further Reflections on Wrongfulness in the Law of Delict

Authors Anton Fagan

ISSN: 1996-2177
Affiliations: W P Schreiner Professor of Law, University of Cape Town
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 18 – 54

Abstract

This article revisits the author’s article ‘Rethinking wrongfulness in the law of delict’, which was published in this journal in 2005. The author argues that the analysis in the original articles was misleading in two respects. On the one hand, it under-played the extent to which the determination of whether negligent harm-causing conduct was wrongful is regulated by law. On the other hand, it over-emphasised the degree to which that determination depends on the reasonableness of imposing liability. This article aims to correct these flaws. The article discusses the many legal rules which have to be applied in order to determine whether negligent harm-causing conduct was wrongful, before going on to discuss the deeper-lying considerations by which the wrongfulness of negligent harm-causing conduct is to be determined whenever it cannot be determined by application of the law alone, but must be determined also by the exercise of judicial discretion.

Whose Decisis Must We Stare?

by | Aug 26, 2019 | SALJ V135 I1 2018

Whose Decisis Must We Stare?

Authors Malcolm Wallis

ISSN: 1996-2177
Affiliations: Judge of the Supreme Court of Appeal
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 5 – 17

Abstract

The article explores the consequences for the application of the doctrine of precedent of the Constitution Seventeenth Amendment Act of 2012 and the Superior Courts Act 10 of 2013. It suggests that the effect of creating a single high court must be to require a reconsideration of the rules hitherto applied in relation to stare decisis, and formulates an alternative approach that is both consistent with the constitutional structure of the courts and provides the necessary flexibility to enable courts to engage in debates concerning the interpretation of novel legislation and the development of the common law.

Revel Without a Cause – Delictual Liability After Lee?

by | Aug 13, 2019 | V136 I1 2019

Revel Without a Cause – Delictual Liability After Lee?

Author Malcolm Wallis

ISSN: 1996-2177
Affiliations: Judge of the Supreme Court of Appeal
Source: South African Law Journal, Volume 136 Number 1, May 2019, p. 165 – 190

Abstract

The inability of science to give reasonably definitive answers to many questions of the aetiology of disease and to identify the source of infection poses intractable problems for courts in dealing with questions of causation. These problems came to the fore in Lee v Minister of Correctional Services 2013 (2) SA 144 (CC). The article analyses the various judgments and concludes that, while the decision ultimately leaves the law unchanged it has generated uncertainty about the proper approach to causation. It highlights the impact that possible changes in approach have to the underlying principles of the law of delict and the onus of proof and the difficulties that have arisen in the United Kingdom as a result of judgments creating an exception to conventional principles of causation in relation to industrial diseases.

The Constitutionality of the Regulation of Religion in South Africa – Untoward Restrictions of the Right to Religious Freedom?

by | Aug 13, 2019 | V136 I1 2019

The Constitutionality of the Regulation of Religion in South Africa – Untoward Restrictions of the Right to Religious Freedom?

Author Georgia du Plessis

ISSN: 1996-2177
Affiliations: Postdoctoral Researcher, KU Leuven, Belgium; Research Fellow, Centre for Human Rights, University of the Free State
Source: South African Law Journal, Volume 136 Number 1, May 2019, p. 131 – 164

Abstract

In August 2015, the constitutionally empowered South African Commission for the Promotion and Protection for the Rights of Cultural, Religious and Linguistic Communities launched an investigative study into what it called the ‘commercialisation of religion’ (the notion that certain religious institutions abuse ‘people’s belief systems’ for financial gain). This was in response to a number of media reports concerning untoward practices by various religious organisations. In the final report relating to the Commission’s investigation, a number of recommendations were made, proposing more stringent and formalised regulation of religious institutions within South Africa. The Commission’s recommendations received substantial opposition from most religious organisations in South Africa, mostly relating to the fear that these recommendations will result in an unjustifiable limitation of the right to religious freedom. This article provides a brief analysis of the Commission’s powers and mandate in order to determine whether the Commission was acting within the scope of its powers. A discussion of the reports and recommendations of the Commission follows, and the proposed organisational structures (and their consequences) are discussed and tested against the South African constitutional framework and jurisprudence pertaining to the right to religious freedom. In conclusion, the legal validity of the Commission’s recommendations is investigated in light of the Constitution and international commentary.

Balancing Financial Inclusion and Data Protection in South Africa: Black Sash Trust v Minister of Social Development

by | Aug 13, 2019 | V136 I1 2019

Balancing Financial Inclusion and Data Protection in South Africa: Black Sash Trust v Minister of Social Development

Authors Bronwyn Batchelor & Tinashe Wazvaremhaka

ISSN: 1996-2177
Affiliations: Lecturer, Department of Mercantile Law, University of Fort Hare; Public Prosecutor, National Prosecuting Authority, Zimbabwe
Source: South African Law Journal, Volume 136 Number 1, May 2019, p. 112 – 130

Abstract

The participation of many underprivileged social clusters in the financial services sector has invariably been problematic in South Africa. This may be attributed to the country’s laws and policies implemented before and during the apartheid era to ensure the exclusion of the majority populations from key areas of the economy. This article discusses the linkage between protection of social grant beneficiaries’ private information and financial inclusion in light of the case of Black Sash Trust v Minister of Social Development 2017 (3) SA 335 (CC). The article advances the argument that effective participation of social grant beneficiaries in the financial services sector can be realized if personal data protection measures are taken seriously. Nonetheless, it also points out that targeted financial literacy mechanisms together with effective policy implementation within the department of social development are also vital mechanisms that are central to promoting financial inclusion of social grant beneficiaries. Additionally, the authors discuss the new social grant distribution vehicle and suggest that staff training in relation to data protection is key to ensuring the protection of social grants beneficiaries’ personal information. The article concludes by emphasising the need to balance financial inclusion and data protection measures in order to ensure safe and effective participation of vulnerable social grant beneficiaries in the South African financial services sector.

Substantive Reasoning and The Concept of ‘Administrative Action’

by | Aug 13, 2019 | V136 I1 2019

Substantive Reasoning and The Concept of ‘Administrative Action’

Author Glenn Penfold

ISSN: 1996-2177
Affiliations: Partner, Webber Wentzel; Visiting Senior Lecturer, University of the Witwatersrand
Source: South African Law Journal, Volume 136 Number 1, May 2019, p. 84 – 111

Abstract

In giving meaning to the threshold concept of ‘administrative action’ in the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’), courts should adopt a substantive, non-formalistic approach. Such an approach is mandated by the value-laden Constitution and its injunctions to interpret both the Bill of Rights and legislation so as to promote constitutional values. Substantive reasoning is more than the avoidance of formalism. It also means that courts are constrained by the constitutional and legislative text — a constraint that flows from the separation of powers and the rule of law. The challenge is to give meaning to the concept of ‘administrative action’ in a manner which promotes fundamental principles such as accountability, transparency and administrative justice, whilst respecting the text of PAJA. While a number of judicial decisions as to whether or not conduct amounts to ‘administrative action’ are imbued with substantive reasoning and stay on the path mapped out in the Constitutional Court’s jurisprudence, some appear to stray into formalism, while others veer off past what PAJA’s language would seem to permit.