The purpose of this dissertation is to present an analysis of the relationship between the law of delict – specifically the element of factual causation – and the manner in which this element should apply to an assessment of the liability of gold mining companies in South Africa and their failure to protect mineworkers from exposure to silicosis, silico-tuberculosis and pulmonary tuberculosis. It is argued that the Constitutional Court's interpretation, and their ultimate application of the test for factual causation in Lee v Correctional Services 2013 (2) SA 144 (CC), in the form of the material increase of risk test, is precedent for the assessment of factual causation within the tuberculosis class in Nkala and Others v Harmony Gold Mining Co Ltd and Others 2016 (5) SA 240 (GJ). To underscore this argument, analogies are drawn between the powerful positions of gold mining companies and the State, and the vulnerable positions of mineworkers and prisoners in South Africa, as well as the Constitutional obligations owed by the State and gold mining companies towards prisoners and mineworkers, respectively. Furthermore, reasons why the material contribution test should apply to the silicosis class are discussed. This dissertation also outlines the statutory and common law duties owed by mining companies to underground mineworkers, for establishing these requirements is a requirement of the material increase of risk and material contribution tests. It is noted that the trial court in the Nkala class action suit should apply the aforementioned tests for factual causation to the two classes, failing which would be an injustice to legal precedent, and would be unfair and unreasonable.

This research builds on and contributes to work in the field of educators' professional discretion and the prevention of negligence. Existing literature suggests that many educators are still unaware of how the law operates regarding policy requirements and their in loco parentis obligations. This is demonstrated by the number of litigations and how an educator's liability regarding negligence has grown. In South Africa, numerous authors have made contributions in relation to learner safety and educators' duty of care. An educator is tasked with duty of care and to use professional discretion appropriately. At the same time, educators should be mindful to minimise their exposure to lawsuits. However, not much appears to have been done in this country to establish how educators can maintain a respectable balance between professional discretion and policy requirements without being negligent. The purpose of this study was, thus primarily to explore ways in which educators can reconcile professional discretion and legal and policy requirements to prevent negligence. The study utilised a qualitative research approach underpinned by an interpretive paradigm. Data collection was done by the means of qualitative collection techniques, namely semi-structured interviews supported by an analysis of relevant court cases. Twenty participants from two primary and two secondary public schools in the Tshwane South school district in Gauteng participated in the study. Two of these schools were fee-paying schools and two non-fee-paying schools. Five participants from each school were identified and invited to participate in this study and consisted of the principal, a member of the school management team (deputy-principal or head of department) and three educators. Each of the participants had different legal obligations, discretions, responsibilities and accountabilities as far as negligence is concerned. The conceptual framework for this study, was based on Dworkin’s (1978:31) ‘doughnut’ metaphor for the concept of professional discretion. Based on an adapted version of Dworkin’s ‘doughnut’ metaphor, findings confirm that some educators feel restricted in their decision-making and limited in their professional discretion due to the legal and inflexible policy framework regulating their work. It came to the fore that the understanding and interpretation of certain school policies were dealt with differently by the participants due to their varied levels of experience, knowledge and training. The findings illuminated the fact that the participants did not fully grasp the vii concept of professional discretion. In making decisions and exercising judgement, these participants may not be comfortable in their knowledge experience or personal intuition. Educators’ capacity and ability to apply discretion is influenced by a number of external and internal factors. These factors restrict an educators’ autonomy space, which could ultimately lead to the inability to apply appropriate discretion. This could lead to a form of paralysis to uphold a high standard of care in dire situations and could lead to negligence. Therefore, in order to achieve a high standard of care and not be negligent, educators should not only have the ability to apply appropriate discretion, but also have the freedom to do so. Key terms: professional discretion; duty of care; in loco parentis; negligence; law of delict; standard of care; school safety policies. / Dissertation (MEd)--University of Pretoria, 2020. / DST-NRF Innovation Master’s Scholarship. UNIQUE GRANT NO: 117504 / Education Management and Policy Studies / MEd / Unrestricted

This thesis examines the law relating health care in South Africa rather than medical law which is a subset of this field. It attempts to synthesise five major traditional areas of law, namely international, constitutional, and administrative law, the law of contract and the law of delict, into a legal conceptual framework relating specifically to health care in South Africa. Systemic inconsistencies with regard to the central issue of health care across these five traditional fields are highlighted. The alignment of the various pre-existing areas of statutory and common law with the Constitution is an ongoing preoccupation of the executive, the judiciary, the legislature and academia. In the health care context, the thesis critically examines the extent to which such alignment has taken place and identifies areas in which further development is still necessary. It concludes that the correct approach to the constitutional right of access to health care services is to regard it as a unitary concept supported by each of the five traditional areas of law. The traditional division of law into categories of public and private and their further subdivision into, for instance, the law of delict and the law of contract is criticized. It promotes a fragmented approach to a central constitutional construct resulting in legal incongruencies. This is anathema to a constitutionally based legal system. There is no golden thread of commonality discernible within the various public international law instruments that contain references to rights relating to health and it is of limited practical use in South African health law. The rights in the Bill of Rights are interdependent and interconnected. The approach of the courts to the right of access to health care needs to be considerably broader than it is at present in order to fully embrace the idea of rights as a composite concept. Administrative law, especially in the public health sector, offers an alternative basis to pure contract for the provider-patient relationship. It is preferable to a contractual relationship because of the many inbuilt protections and legal requirements for administrative action. Contracts can be unfair but courts refuse to strike them down purely on this basis. Administrative action is much more likely to be struck down on grounds of unfairness: The law of contract as a legal vehicle for health service delivery is not ideal. This is due to the antiquated approach of South African courts to this area of law. There is still an almost complete failure to incorporate constitutional principles and values into the law of contract. The law of delict in relation to health care services has its blind spots. Although it seeks to place the claimant in the position in which he or she found himself prior to the unlawful act whereas the law of contract seeks to place him in the position he would have occupied had the contract been fulfilled, in the context of health care this is a notional distinction since contracts for health services seldom guarantee a specific outcome. / Thesis (LLD)--University of Pretoria, 2004. / Public Law / unrestricted

Navorsingsresultate toon dat treitering ‘n ernstige probleem is wat wêreldwyd voorkom, ook in Suid-Afrika en dat die getal slagoffers wat daardeur geraak word skrikwekkend hoog is. Die doel van hierdie studie is om die regsimplikasies van treitering van leerders deur mede-leerders in Suid-Afrikaanse openbare skole vir die onderwysbestuur en onderwysreg te ondersoek en te beskryf. Met die term “onderwysbestuur” word verwys na onderwys op nasionale vlak, provinsiale vlak en skolevlak. Die regsimplikasies vir die onderwysreg is hoofsaaklik daarin geleë dat daar nuwe kennis tot die onderwysreg toegevoeg word. Dit is aksiomaties dat regsimplikasies onlosmaaklik verbonde is aan regsreëls. Daar kan slegs sprake wees van regsimplikasies van ‘n aangeleentheid as daar regsreëls is wat die aangeleentheid beheer en rig – in die geval van hierdie studie, die regsreëls wat die bestuur en hantering van treitering in Suid-Afrikaanse openbare skole rig en beheer. Die regsreëls wat die bestuur en hantering van treitering in Suid-Afrikaanse openbare skole rig en beheer, is deel van die Handves, internasionale kinderregte-ooreenkomste, wetgewing, die gemene-reg, deliktereg, die strafreg en regspraak. Om die navorser in staat te stel om die regsreëls in ge-noemde regsbronne te identifiseer, is ‘n deeglike kennis van die fenomeen “treitering” noodsaaklik. Om die regsimplikasies van hierdie regsreëls te bepaal, beteken dat hierdie regsreëls binne die konteks van “treitering” as fenomeen geïnterpreteer moet word. Daar moet dus beskryf word hoe hierdie regsreëls toepassing vind met betrekking tot treitering. Die interpretasie van hierdie regsreëls binne die konteks van treitering geskied deur middel van semi-gestruktureerde onderhoude met geïdentifiseerde respondente wat geïdentifiseer is op grond van hul kennis van spesifieke regsdissiplines en die praktyk soos byvoorbeeld menseregte en kinderregte, die gemenereg, die deliktereg, die strafreg, die onderwysreg asook die regspraktyk en onderwysregspraktyk. Die beskrywing van die regsimplikasies vir die onderwysbestuur en onderwysreg is hoofsaaklik gegrond op die response (bevindinge) van die respondente, maar die regsimplikasies word uitgebrei deur die response van die respondente te verbind aan veelvuldige bronne van informasie. Hierdie aanvullende informasie wat aangewend word vir ryker beskrywing (“thick description”) lei ook die navorser tot die identifisering of beskrywing van verdere implikasies wat nie noodwendig in die respondente se response na vore gekom het nie. Die regsimplikasies van die treitering van leerders deur mede-leerders is omvattend en het implikasies vir die onderwysbestuur op nasionale vlak, provinsiale vlak, distriksvlak en skolevlak en wel ten opsigte van die volgende afdelings van die Suid-Afrikaanse reg: fundamentele regte, wet-gewing, die deliktereg en strafreg. ENGLISH: Research results indicate that bullying is a serious problem worldwide, South Africa included, and that the number of victims affected is alarmingly high. The purpose of this study is to investigate and describe the legal implications that bullying of learners by fellow learners in South African public schools has for education management and education law. “Education management” refers to education at national, provincial and school levels. The legal implications for education law lie mainly in the fact that new information is being added to the body of education law. It is axiomatic that legal implications are inextricably bound to legal rules. One can only speak of legal implications if there are legal rules that control and direct them – in the case of this study it is the legal rules that control and direct the management and operation of bullying in South African public schools. The legal rules that control and direct the management and operation of bullying in South African public schools are part of the Bill of Rights, international children’s rights conventions, legislation, common law, law of delict, case law and criminal law. A thorough knowledge of the phenomenon “bullying” was necessary to enable the researcher to identify the legal rules contained in the legal sources mentioned. In order to determine the legal implications of these legal rules, it was necessary to interpret these legal rules within the context of the phenomenon “bullying”. It was therefore necessary to describe how these legal rules are applied with regard to bullying. The interpretation of these legal rules within the context of bullying was done by means of semi-structured interviews with identified respondents who were identified on grounds of their knowledge of specific law disciplines and practice such as human rights and children’s rights, common law, the law of delict, criminal law, education law and legal practices and education law practices. The description of the legal implications for education management and education law is based mainly on the responses (findings) of the respondents, but the legal implications are extended by linking the responses of the respondents with many other sources of information. This supplementary information, which is used to enrich the description (thick description), also led the researcher to identifying or describing additional implications that were not necessarily evident from the responses of the respondents. The legal implications of the bullying of learners by fellow learners, are comprehensive and have implications for education management at national level, provincial level, district level and school level, especially in terms of the following sections of South African law: fundamental rights, legis-lation, the law of delict and criminal law. / Thesis (PhD)--University of Pretoria, 2008. / Education Management and Policy Studies / unrestricted

The available sources on the dependency action in South Africa do not mention the presence or absence of traditional values. This study was prompted by a simple curiosity to discover the traditional legal values of the dependency action for loss of support. Accordingly, the study critically examines the action of dependants for loss of support and other related losses in South Africa, Botswana and Lesotho from an African perspective. It then compares this to its application in Australia, a country that is known for its recognition and inclusion of indigenous Australian customary law. The study recommends that traditional values should be preserved in the records of the legal system, as it might stimulate a discussion, which could lead to the culmination of a single dependency action tailored to fit the whole nation and all its different cultures and religions. / Private Law

The purpose of this thesis is to prove the existence of the right to adequate healthcare through a critical analysis of the law of obligations, constitutional law and international law framed in the wider focal point of South African medical law. The Constitution only makes provision for the right to access to health care. Conclusively this thesis will have to establish a link between a minimum standard in health care and the Constitution. It is submitted that the most efficacious method of establishing this link is with the duty of care, which is intrinsically linked to the doctor-patient relationship. If a critical analysis of the doctor-patient relationship can establish a clear link between the duty of care and state liability then such a link can successfully be applied to the Constitution. If this link is transposed onto the Constitution, a critical evaluation of the rights in the Bill of Rights will then reveal the most applicable right that can house the right to an adequate standard of health care. Such an analysis is only part of the solution however. In order to make this right effective, the international body of medical laws must be critically analysed and juxtaposed against this adequate standard. This carries the dual purpose of adding normative content as well as determining the current state of South Africa’s obligations under international human rights law, and to what extent those obligations have been discharged. Finally, and most significantly, the right to adequate healthcare, as it was forged in the international legal analysis, will be transposed onto the current South African jurisprudence of socio-economic rights. This practical application will then be reflected onto the new National Health Care Insurance to show conclusively that the current governmental approach of effecting health care is wholly inoperable and will ultimately result in significant harm and extensive human rights violations. This is based on the government only considering access to health care sufficient to discharge its duties and being totally incapable of effectively managing its resources. The core outcome for this thesis is to prove the existence of the right to adequate healthcare. Secondary outcomes are tracing the history of medicine to illustrate the creation and evolution of the doctor-patient relationship, a critical analysis of the application of medical ethics to South African law of obligations, a critical analysis of the Constitution and its fundamentals, an exhaustive evaluation of South Africa’s duties and accomplishments under its international obligations and effectively applying the right to adequate healthcare which is diametrically opposed to the current course South Africa is taking to provide health care. / Dissertation (LLM)--University of Pretoria, 2012. / Public Law / unrestricted