The application of the doctrine of informed consent in South African medical law: Reflections on significant developments in the case law

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

The application of the doctrine of informed consent in South African medical law: Reflections on significant developments in the case law

Authors: Marno Swart & Pieter Carstens

ISSN: 1996-2177
Affiliations: PhD Candidate in Medical Ethics and Law, University of Cambridge; Emeritus Professor of Medical Law and Criminal Law; Former Director of the Centre for Law and Medicine, University of Pretoria
Source: South African Law Journal, Volume 141 Issue 1, p. 45-83
https://doi.org/10.47348/SALJ/v141/i1a4

Abstract

The doctrine of informed consent is the foundation of the physician–patient relationship. This doctrine remains controversial despite its importance, and issues involving consent are frequently litigated. This article examines the application of the doctrine of informed consent in South African medical law as it has developed in South African case law. This examination first sets a normative background for consent as a ground of justification against a wrong ful act in either contract or delict (or both) that is significantly influenced by the Constitution of the Republic of South Africa, 1996. Against this normative background, a selected anthology of nine significant judgments by South African courts is analysed, with specific attention paid to the critical shift prompted by the promulgation of the Constitution. Finally, the analyses of the nine judgments are consolidated and collated to draw conclusions about the triumphs and failings of the South African courts, based on the normative background. This analysis reveals which aspects of the doctrine of informed consent have crystallised in South African medical law and which remain unclear.

Identification parades in South Africa — Time for a change?

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

Identification parades in South Africa — Time for a change?

Authors: Colin G Tredoux, Ryan J Fitzgerald, Aldred Allan & Alicia Nortje

ISSN: 1996-2177
Affiliations: Professor, Department of Psychology, University of Cape Town; Assistant Professor, Department of Psychology, Simon Fraser University; Professor, Department of Psychology, Edith Cowan University; Post-doctoral Researcher, Department of Psychology, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 1, p. 84-111
https://doi.org/10.47348/SALJ/v141/i1a5

Abstract

Identification parades are essential when obtaining evidence of identity from eyewitnesses. Eyewitnesses are shown a line of people containing the suspect(s) and innocent fillers, and witnesses are asked to point out the perpetrator(s) of the crime, noting that the perpetrator(s) might not be present. Corporeal (‘live’) parades are required in South Africa unless there is a good reason not to use them, in which case the police may use photograph parades. We review the rules for conducting parades in South Africa and compare these to those in several other countries, many of which no longer use corporeal parades. We consider evidence from empirical studies that have tested the ‘live superiority’ hypothesis and conclude that there is no clear evidence in its favour, notwithstanding that there are benefits to augmenting static views of faces with additional cues to identity. We then consider the logistical and financial cost of conducting live parades, which we find to be considerable. We conclude that it may well be time to reconsider the use of live identification parades in South Africa but caution that this should coincide with a review of the law regulating the use of alternative methods to ensure that accused persons receive fair trials.

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

Authors: Amy Gooden & Donrich Thaldar

ISSN: 1996-2177
Affiliations: Doctoral Fellow, School of Law, University of KwaZulu-Natal; Professor, School of Law, University of KwaZulu-Natal; Visiting Scholar, Petrie-Flom Center for Health Policy, Biotechnology, and Bioethics, Harvard Law School
Source: South African Law Journal, Volume 141 Issue 1, p. 112-142
https://doi.org/10.47348/SALJ/v141/i1a6

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Abstract

This article examines the regulation of health-related direct-to-consumer genetic tests (‘HDGTs’) in South Africa by the Medicines and Related Substances Act 101 of 1965 and its related regulations, namely the Regulations Relating to Medical Devices and In Vitro Diagnostic Medical Devices and the draft Regulations Relating to Medical Devices, as well as the South African Health Products Regulatory Authority guidelines. Such regulation includes the classification, licensing, registration, marketing, labelling and importing of HDGTs. At a basic classification level, the manufacturer’s intention determines whether HDGTs are medical devices and/or in vitro diagnostic devices (‘IVDs’). Those HDGTs that are medical devices are also likely to be IVDs and are likely to be classified as Class B IVD medical devices, meaning that they pose low to medium risk. This is because the intended use of an HDGT is generally not as a diagnostic tool but as an informational tool, where the results are not definitive and additional testing is required. Accordingly, a licence is required to manufacture, import, export, sell or distribute HDGTs in South Africa. The classification of HDGTs also impacts the rules relating to labelling, advertising and importation.

Staring into voidness — Courts grapple with arbitration clauses in tainted contracts

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

Staring into voidness — Courts grapple with arbitration clauses in tainted contracts

Author: Saleem Seedat

ISSN: 1996-2177
Affiliations: Extraordinary Research Fellow, Faculty of Law, North-West University
Source: South African Law Journal, Volume 141 Issue 1, p. 143-168
https://doi.org/10.47348/SALJ/v141/i1a7

Abstract

Arbitration has a noble lineage that stretches back into time. It has evolved from a simple attempt to resolve disputes in the presence of a local authority to a more technical presentation before an independent arbiter. In South Africa, arbitrations have statutory recognition. This article focuses on an arbitration clause that is embedded in a substantive agreement where the agreement was induced by fraudulent misrepresentation by a party to the agreement. The general principles of the law of contract would dictate that fraud makes the contract voidable at the instance of the innocent party. But our courts have equivocated in deciding whether the tainted contract also besmirches the arbitration clause. While earlier decisions confirmed the autonomy of the arbitration clause, two judgments of the Supreme Court of Appeal (‘SCA’) in particular held that the arbitration clause foundered with the main agreement. The article argues that the SCA’s findings were misconceived and suggests that the SCA’s reluctance to allow arbitrators to decide on the validity of an arbitration clause in a contract instigated by fraud is incorrect. It is argued that consonant with international practice, an arbitration clause should be considered a clause separate from the main agreement that will not be affected by the invalidity of the main agreement. A subsequent SCA decision recognised the primacy of an arbitration clause incorporated into an agreement. The article also proffers the possibility of reading into a contract a tacit term that all disputes arising from the main agreement will be arbitrated.

Footing the (wage) bill: Reasoning, remedies and National Education, Health and Allied Workers Union v Minister of Public Service and Administration (CC)

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

Footing the (wage) bill: Reasoning, remedies and National Education, Health and Allied Workers Union v Minister of Public Service and Administration (CC)

Authors: Justin Winchester & Catherine Willis-Smith

ISSN: 1996-2177
Affiliations: Bachelor of Civil Law candidate, Faculty of Law, University of Oxford; Teaching Assistant, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 1, p. 169-200
https://doi.org/10.47348/SALJ/v141/i1a8

Abstract

In NEHAWU & others v Minister of Public Service and Administration & others 2022 (6) BCLR 673 (CC), the Constitutional Court declared invalid and unenforceable a clause regulating the third payment period in a collective agreement regulating periodic wage increases for public service employees. We do not take issue with the court’s findings concerning the validity of the impugned collective agreement. However, we question the reasoning provided for the ‘just and equitable’ remedy ordered. We find the court’s reasoning insufficient in so far as it overlooked applicable principles of corrective justice, the significance of the state being unjustifiably enriched by labour peace by curtailing public servants’ right to strike, and the consequences of its decision on the effectiveness of the delay-bar in preventing ill-motivated state self-review. We propose the bifurcated approach that the court adopted in the AllPay saga as a tool to adjudicate polycentric cases such as the impugned case, as it enhances the judiciary’s proper place in the separation of powers and maximises remedial possibilities for innocent third parties to state contracts. We conclude with what has happened on the ground since this decision was reached.