The main objectives of this study were to identify the role that customary law and traditional leadership can play, without compromising their current positions or future recognition through legislation, in creating a better life for their constituents. The study analysed diverse issues such as legislative reform, the future role and functions of traditional leaders, training needs of traditional leaders, and the impact of a possible lack of commitment by national and provincial government on the training of traditional leaders to fulfill their functions within the ambit of the Constitution.

The aim of this study is to suggest, by selective example, a form of jurisprudence which relates to and may have a salutary effect upon law and justice in post-apartheid South Africa. I describe three ways in which South Africa can be regarded as negotiating a transition - from apartheid to post-apartheid, from modem to post modern and from colonial to postcolonial. I argue for a jurisprudence which directly concerns itself with each of these three overlapping and mutually informing modes of transition: an approach to law and justice which is post-apartheid, postmodem and postcolonial. Since my account of law and justice engages with all three transitions, it has the potential to bring about a positive transformation in the conservative legal theory currently in favour with the judiciary. I suggest that the positivist approach followed by the judiciary during apartheid led in most cases to a removal of ethics from the legal universe and a diremption of law and justice. I contend further that the current approach of the judiciary still bears the hallmarks of positivism, in its continued adherence to the 'literal approach' to constitutional interpretation and its misunderstanding of the role of morality in adjudication. I argue that positivism, with its potential to produce injustice, should be abandoned in favour of an approach based on a postmodem epistemology which incorporates a concept of justice which is both substantive and avoids the pitfalls of natural law: the historical exhaustion of classical teleology and the failure of religious transcendence to command widespread respect. The postmodem theorists I draw on, Michel Foucault, lacques Derrida and lean-Francois Lyotard, cumulatively point to the fai lure of the Enlightenment to ground legal practice upon the universalising faculty of reason. Postmodem jurisprudence. informed by postcolonial theory, postulates justice as an ethic of alterity and is able to reintroduce ethics into law in a manner which avoids the critique of Enlightenment epistemology. Having set out the jurisprudential views of these theorists, I turn to the activity of constitutional interpretation to demonstrate the way in which the judiciary's current approach to interpretation could be positively transformed through the introduction of interpretative techniques related to poststructuralism and specifically deconstruction. I argue that interpretation is an activity necessarily informed by values and that the indeterminacy of the language of the Constitution provides the interpreter with choice. Provided the choice is ethically motivated, interpretation is a transforrnative activity. Having concluded the expository section of this dissertation, I provide a close reading of two Constitutional Court judgements, Azanian Peoples Organisation (AZAPO) v President of (he Republic of South Africa and S v Makwanyane and Another. These judgements, decided under the interim Constitution, are arguably the most important judgements of the Constitutional Court to date. They represent sites of the judiciary's internal struggle to respond to the requirement for a new epistemology and practice of interpretation, which provide the means to adjudicate justly and also suggest ways in which to justify its decisions. My study is largely restricted to these two cases, and although I refer to other cases for their bearing on particular issues, I do not aim at a comprehensive survey of the Constitutional Court's record to date. Nevertheless. this study concludes with some provisional remarks about the record of the Constitutional Court since its inception and suggests possible ways in which the jurisprudence I have argued for may be pursued in furtherance of justice. / Theses (M.A.)-University of Natal, Durban, 2000.

The main objectives of this study were to identify the role that customary law and traditional leadership can play, without compromising their current positions or future recognition through legislation, in creating a better life for their constituents. The study analysed diverse issues such as legislative reform, the future role and functions of traditional leaders, training needs of traditional leaders, and the impact of a possible lack of commitment by national and provincial government on the training of traditional leaders to fulfill their functions within the ambit of the Constitution.

This study examines the utility of the MMPI-2 in predicting responsibility in pre-trial forensic patients, using a post hoc sample of 94 offenders from Sterkfontein Psychiatric Hospital in Gauteng. Firstly, the overall characteristics of the pre-trial forensic patients are discussed, following an analysis of demographic, clinical, criminal and MMPI-2 pre-trial data, as well as an overview of the Megargee typological classification of offenders. The sample is classified into Criminally Responsible (CR), Diminished Criminal Responsibility (DCR) and Not Criminally Responsible (NCR), and the CR and DCR groups are collapsed (CR/DCR) for many of the analyses when comparing them to the NCR group. Secondly, the variance of variables with responsibility is discussed, after examining one-way ANOVA’s of demographic, clinical, criminal and MMPI-2 variables, as well as an overview of high point pairs. Thirdly, discriminant analyses were conducted of demographic, clinical and MMPI-2 variables. When comparing the collapsed CR/DCR group to the NCR group, psychiatric diagnosis, presence of psychosis, the MMPI-2 Pa and Es scales, as well as race and substance abuse each had unique predictive power and created a substantial discriminative equation (F (6,70) = 45.732, p <0.0005) with a successful prediction rate of 96%. Using only MMPI-2 variables to predict responsibility showed significant unique contributions for the Pa, Es, MAC-R and Mf scales, with the BIZ scale not quite significant, and a fairly significant overall discriminant equation (F (5,73) = 6.474, p < 0.0005), with an overall successful prediction rate of 82%, with the MMPI-2 variables adding an additional 3% to the predictive power of the demographic and clinical variables. Similarly, when examining the more complex 3 group responsibility classification of CR, DCR and NCR, it was found that the demographic, clinical and MMPI-2 variables of psychiatric diagnosis, psychosis, race, substance abuse, and the Pa, Es and Ma scales all had significant contributions to a powerful discriminant analysis (F (14, 136) = 19.758, p < 0.0005) that was capable of correctly reclassifying almost 95% of the sample, and the MMPI-2 variables providing an increase in predictive power of 8%. Differences in responsible and not responsible pre-trial forensic patients are discussed, as well as the role of the MMPI-2 in assessing these differences, and the fact that it is highly likely that it adds more to the forensic assessment of responsibility than a 3% (CR/DCR versus NCR) or 8% (CR versus DCR versus NCR) increase in predictive power. Limitations of the study are discussed, together with recommendations for future research with the MMPI-2 for assessment of criminal responsibility. The suggestion is made that the MMPI-2 can become a valuable tool in South African forensic settings, not only in the assessment of responsibility and malingering, but also in the placement, management, follow-up and treatment of offenders, to maximize the limited resources in South Africa allocated for the rehabilitation of offenders, and minimize the risk of recidivism or rehospitalization.

Study project (M.Med.) -- University of Stellenbosch, 2001. / ENGLISH ABSTRACT: The main purpose in doing forensic post mortems is to supply information to the judicial system. Medical personnel involved in doing post mortems seldom get feedback regarding efficiency. Numerous allegations have been made regarding the work of district surgeons in terms of forensic post mortems, often suggesting that the work is substandard. In South Africa district surgeons do post mortems mostly in the rural areas, and training centre personnel do forensic post mortems in urban areas. Training centre personnel include specialized forensic pathologists, registrars and medical officers working in the Departments of Forensic Medicine, affiliated to universities. The South African Police Service mostly manages government mortuaries. The South African forensic medico-legal system is unique, and does not correspond in with the four main systems used worldwide. Research was done by sending 200 questionnaires to a representative group from the legal fraternity of the Western Cape (including judges / magistrates, state prosecutors, private lawyers) and also the South African Police Service investigating officers. The judiciary, as the users of the information generated through forensic post mortems, are therefore in a suitable position to determine the efficacy of forensic post mortem. The questionnaire was structured to determine the general perception, as well as comments, regarding 9 different aspects involved with doing forensic post mortems. These include the thoroughness and completeness of reports, standard of academic knowledge, efficacy of verbal testimony in court, length of time in releasing the report, general attitude, efficacy of sketches and diagrams, efficacy of photography, sufficient taking of toxicology samples and sufficient utilization of special laboratory investigations. The last question was an open question to allow for general comments and anecdotes. For each aspect it was also determined whether there was a difference in efficacy noted between the two groups. The effect of this, if any, on the judicial criminal justice system was also assessed. A different questionnaire was sent out to all forensic pathologists in the Western Cape. The standard of work of the district surgeons was hereby assessed. General comment regarding academic knowledge, and findings at post mortem made by district surgeons was assessed. The pathologists were also questioned regarding the general attitude of district surgeons, and imput were asked regarding continued medical education programs. An area for general comment was also supplied. The main findings were as follows: a. The legal fraternity in the Western Cape is generally satisfied with the efficiency of forensic post mortems, except the use of laboratory investigations and also the length of time to release reports. b. The legal fraternity could determine a difference in the efficiency of post mortems done by district surgeons and training centre personnel. Training centre personnel were generally regarded as more effective. c. The difference between the two groups, due to ineffective district surgeon post mortems, had a negative effect on the criminal justice system. The following recommendations were made: a. Training centre personnel: Serious consideration should be given to appointing qualified forensic pathologists in the rural areas. Training centre personnel should also be more involved in training the district surgeons. b. District surgeons: The training, re-training and continued medical education of district surgeons in the Western Cape should be prioritized. The service conditions should also be reviewed. c. Administrative: Audit of post mortem reports. The efficiency regarding court appearances should be audited through the Department of Justice. Administrative power will be necessary to oversee the above-mentioned recommendations. / AFRIKAANSE OPSOMMING: Die hoofdoel met die doen van geregtelike post mortems is om inligting te verskaf aan die regsproses. Medici gemoeid met geregtelike post mortems kry baie seide terugvoer oor die effektiwiteit van werk gelewer in die hof. Daar is ook herhaaldelik suggesties gemaak dat die werk van die distriksgeneeshere met betrekking tot geregtelike post mortems soms suboptimaal is. Regsmediese post mortemdienste in Suid Afrika word verskaf deur distriksgeneeshere in die platteland, en deur personeel verbonde aan opleidingshospitale in die stede. Die opleidingssentra-personeel sluit in gespesialiseerde forensiese patoloe, kliniese assistente en mediese beamptes werksaam in 'n Departement van Geregtelike Geneeskunde verbonde aan 'n universiteit. Staats- Iykshuise word bestuur en beheer deur die Suid-Afrikaanse Polisiediens. Daar bestaan geen soortgelyke model vir die voorsiening van regsmediese dienste in die res van die wereld nie. Navorsing is gedoen deur vraelyste uit te stuur aan 200 verteenwoordigende regslui (wat insluit regters/landdroste, staatsaanklaers, privaat regslui) en aan Suid-Afrikaanse Polisiediens-ondersoekbeamptes in die Wes Kaap. Die reg, as verbruikers van regsmediese dienste is gekies om 'n opinie uit te spreek oor die doeltreffendheid van forensiese post mortems. Die vraelyste is gestruktureer om die algemene tevredenheid en opinies en kommentaar te bekom oor nege verskillende aangeleenthede rakend die forensiese post mortem, nl. deeglikheid en volledigheid van verslae, standaard van akademiese kennis, effektiwiteit van verbale getuienisaflegging in die hof, tydsverloop vir lewering van verslae, houding en gesindheid van medici, doeltreffendheid van sketse en diagram me, effektiewe gebruik van fotografie, effektiewe gebruik van toksikologiese ondersoeke, effektiewe gebruik van spesiale ondersoeke, asook 'n algemene oop vraag vir kommentaar oor probleemareas. Daar word vervolgens vir elke aangeleentheid bepaal of daar 'n verskil in effektiwiteit opgelet word tussen twee mediese subgroepe, en indien wei watter groep meer effektief funksioneer. Verder sal nagegaan word of die regsproses geaffekteer word deur enige van bogenoemde bevindinge. 'n Verskillende vraelys is uitgestuur aan aile geregtelike patoloe in die Wes-Kaap. Hiermee word die standaard van die werk van distriksgeneeshere beoordeel. Kommentaar is gevra oor akademiese kennis met betrekking tot geregtelike post mortems en oor bevindinge gemaak deur distriksgeneeshere by post mortems. Daar word ook gevra oor die algemene houding van distriksgeneeshere, asook vir voorstelle vir voortgesette onderrigsprogramme. 'n Oop vraag is gestel vir kommentaar oor probleemareas. Uit die response is die volgende gevolgtrekkings gemaak: a. Die regslui in die Wes-Kaap is oor die algemeen tevrede met die diens gelewer met betrekking tot geregtelike post mortems, met uitsondering van die effektiwiteit van laboratoriumondersoeke, en ook oor die tydsverloop tussen die doen van post mortem en die vrystel van die verslae. b. Die regslui kon 'n verskil bepaal in die graad van effektiwiteit van post mortems gedoen deur distriksgeneeshere en opleidingssentra-personeel. Opleidingssentra-personeel is deur die meerderheid van respondente identifiseer as meer effektief. c. Die verskil tussen die twee groepe, a.g.v. oneffektiewe distriksgeneesheer post mortems, het 'n negatiewe effek op die regsproses. Aanbevelings is gemaak om die sisteem te verbeter: a. Opleidingssentra-personeel: Die uitplasing van gekwalifiseerde forensiese patoloe in die platteland moet oorweeg word. Opleidingssentrapersoneel kan ook meer betrokke wees by opleiding van distriksgeneeshere. b. Distriksgeneeshere: Aandag moet gegee word aan die opleiding, heropleiding en voortgesette geneeskundige onderrig van distriksgeneeshere in die Wes-Kaap. Die werksomstandighede waaronder hulle diens lewer moet ook aangespreek word. C. Administratief: Ouditering van post mortem verslae. Ouditering van effektiwiteit van hofverskynings, in assosiasie met die Departement van Justisie. Admininistratiewe wilskrag sal ook essensieel wees by implementering van bogenoemde voorstelle.

Medical negligence is a growing concern within South Africa.1 The medical environment has great potential for conflict, because even the best trained physicians can commit errors that result in medical disabilities and sometimes in death.2 The conflicts that follow from these errors are mostly fuelled by emotions and they can become very expensive and time-consuming to settle using the litigation process.3 There is a growing recognition that alternative dispute resolution (ADR) systems in healthcare may alleviate some of the financial and psychological burdens on doctors and patients involved in medical negligence disputes. Mediation is a method of ADR that is flexible and it permits the parties to the dispute to have control over the resolution. A typical medical negligence dispute is driven by intensely emotional factors on the part of injured patients. Victims are not merely seeking financial compensation but they are also looking to understand the circumstances that brought on the event at hand. They want closure. A huge issue with regard to medical negligence litigation is the manner in which the claims are resolved. Litigation provides injured patients and caregivers with a traditional platform for addressing medical negligence claims. However, due to many reasons, this system seems not to be adequate for dealing with disputes arising from alleged medical negligence. Mediation offers a promising solution to the problems surrounding redress of medical negligence disputes. / Jurisprudence / LL. M.

This study was designed to evaluate the quality of informed consent practiced by healthcare professionals in South Africa using an empirical quantitative methodology combined with medicolegal analysis to produce an interdisciplinary thesis on bioethics and medical law. Informed consent is an ethical and legal doctrine derived from the principle of respect for autonomy, whereas the rights to bodily integrity, privacy and human dignity are constitutionally protected in South Africa. The National Health Act 61 of 2003 codified requirements for informed consent by stipulating that healthcare providers must inform healthcare users about diagnosis, risks, benefits, treatment options, and the right of refusal, while taking into consideration users language and literacy levels. However, African communities are inherently challenged by problems of poverty, poor education, power asymmetry, and unfamiliarity with libertarian rights-based autonomy, which could affect informed consent practice. An empirical study was conducted at randomly selected public hospitals in EThekwini metropolitan municipality involving 927 participants; comprising 168 medical doctors, 355 professional nurses, and 404 patients. The study showed that healthcare professionals had limited knowledge regarding ethical and legal requirements for informed consent, and were partially compliant with current informed consent regulations. Barriers to informed consent identified were language, poor education, workload, and lack of interpreters. Most patients attending public hospitals were indigent, but preferred full information disclosure, and a shift from informed to shared-healthcare decision-making. The study recommends that a corps of trained interpreters should be introduced at public hospitals. This will improve providerpatient communications and minimize workloads, increase job satisfaction, and the overall quality of healthcare service delivery. Analysis of recent South African case law on informed consent revealed vacillations between the “reasonable doctor” and “prudent patient” standards of information disclosure which are inconsistent with the jurisprudence from comparative foreign common law jurisdictions. Therefore, South African court judgments on informed consent ought to be re-evaluated to establish a uniform standard of information disclosure consistent with international jurisprudence, current legislation, and constitutional protections relating to human dignity and security of the person. / Jurisprudence / LL. D.