The dissertation critically examines and compares the decisions of the Constitutional Court and the High Courts in cases dealing with the right to life, as contained in section 11 of the Constitution of South Africa Act 108 of 1996. The dissertation analysis the issues of adjudication and the concept of justice in perspective. The main question is as follows: Are the Constitutional Court decisions objective, based on the interpretation of the constitutional text, or do they rather reflect the individual judge(s) personal perspective(s) or preference(s). The purpose of this dissertation is to undertake a comparative study and analysis of the Constitutional Court decisions on the right to life, same aspect from different perspective, and show that the right to life is not given proper effect to on account of the subjective approach to its interpretation undertaken by the judges. It examines and scrutinises the Constitutional Court’s adjudication process. It found that the law is indeterminable, because the court’s decisions are not based on the interpretation of the law, but on the individual judges’ background and personal preferences. This is so because the court uses the majority rule principle in its decisions: The perception of the majority of the judges becomes a decision of the court. It is argued that when taking a decision a judge does not apply the law but instead uses the law to justify his predetermined decision on the matter. The conclusion supports the critical legal scholars’ theory relating to the indeterminacy of the law. It tests the objectivity of the judges using their own previous decisions. / Criminal & Procedural Law / LLM

Thesis (MA)--University of Stellenbosch, 2002. / ENGLISH ABSTRACT: This thesis is a descriptive and interpretive study into the political economy of intellectual property rights, the conceptual and practical implications for the phenomenon of global governance, and how developing countries experience problems with the implementation of national policies that infringe on international intellectual property rights. The specific area of interest is the generic medicine debate that ensued in South Africa after the alleged violation of patent rights of anti-HIV/Aids drugs by the Department of Health. The research question that is addressed is to what extent has the existing international intellectual property rights regime been influenced and/or undermined by South Africa's intended application of WTO regulations in terms of compulsory licensing and parallel imports of "essential" medicines. In doing so, the paper examines the roles of the important states, international organisations, institutions, and private sector firms within the sphere ofthe political economy of intellectual property and how they impede upon or improve the functioning of the intellectual property rights regime. The methodology entails analytical inquiries into documentary evidence on the nature of the international intellectual property rights regime. Areas that are examined are the agendas of the important actors, namely states and their respective departments; individuals and firms; and international organisations. The concept of intellectual property is examined to determine its dynamic role within the generic medicine debate. The thesis concludes that the agendas of pharmaceutical firms and states are exploiting current political stalemates in the negotiations for a fair intellectual property rights regime. National health agencies, and specifically the South African Department of Health, are under enormous pressure to provide affordable health services. Specifically, the US Government and US pharmaceutical firms are dominating discussions on the architecture of the international intellectual property law regime. By using an analysis incorporating systemic, domestic interest, institutional, and ideational perspectives, it is argued that South Africa's drive for a more distributive intellectual property rights regime has placed the issue of health, Aids and generic medicine firmly within the sphere of the political economy of trade agreements. / AFRIKAANSE OPSOMMING: Hierdie tesis is 'n deskriptiewe en 'n interpretiewe studie oor die politieke ekonomie van intellektuele eiendomsregte, die konseptuele en praktiese implikasies vir die verskynsel van globale regering, en hoe ontwikkelende lande probleme ervaar met die implimentering van nasionale beleid wat internasionale intellektuele eiendomsregte aantas. Die spesifieke area van belang is die generiese medisyne debat wat onstaan het na die beweerde skending van patentregte van anti-HIVNigs medisyne deur die Departement van Gesondheid. Die navorsingsvraag wat beantwoord word behels die omvang van die impak van Suid- Afrika se voorgenome toepassing van WTO bepalinge, met betrekking tot die verpligte lisensiering en parallelle invoer van "essensiele" medisyne, op die bestaande internasionale intellektuele eiedomsreg regime. Hierdie tesis ondersoek vervolgens die rol van state, internasionale organisasies, instellings, en privaat sector firmas binne die sfeer van die politieke ekonomie van intellektuele eiendom en hoe hulle afsonderlik die funksionaliteit van die intellektuele eiendomsregte regime beïnvloed. Die metodologie behels 'n analitiese ondersoek van die literatuur oor die aard van internasionale intellektuele eiendomsreg regimes. Areas wat ondersoek word, is die agendas van belangrike akteurs, naamlik die staat en sy onderskeie departemente; individue en firmas; asook internasionale organisasies en instellings. Die konsep van intellektuele eiendom word ondersoek om die dinamiese uitwerking daarvan op die generiese medisyne debat te verstaan. Hierdie tesis voer aan dat die agendas van firmas, spesifiek farmaseutiese firmas en state die huidige politieke dooiepunt in die onderhandeling rondom 'n regverdige intellektuele iendomsregte-regime, uitbuit. Nasionale instellings, soos die Suid-Afrikaanse Departement van Gesondheid, is onder groot druk om bekostigbare gesondheidsdienste te lewer. Die VSA en farmaseutiese firmas domineer onderhandelinge vir 'n nuwe struktuur vir die internasionale eiendomsregte-regime. Deur gebruik te maak van 'n analitiese raamwerk wat sistemiese, interne belange, institusionele, en ideologies perspektiewe inkorporeer, word daar geargumenteer dat Suid-Afrika se pogings om 'n meer distributiewe intellektuele eiendomsregte regime te verseker, die probleem van gesondheid, Vigs, en generiese medisyne binnne die sfeer van die politieke ekonomie van handelsooreenkomste, plaas.

The dissertation critically examines and compares the decisions of the Constitutional Court and the High Courts in cases dealing with the right to life, as contained in section 11 of the Constitution of South Africa Act 108 of 1996. The dissertation analysis the issues of adjudication and the concept of justice in perspective. The main question is as follows: Are the Constitutional Court decisions objective, based on the interpretation of the constitutional text, or do they rather reflect the individual judge(s) personal perspective(s) or preference(s). The purpose of this dissertation is to undertake a comparative study and analysis of the Constitutional Court decisions on the right to life, same aspect from different perspective, and show that the right to life is not given proper effect to on account of the subjective approach to its interpretation undertaken by the judges. It examines and scrutinises the Constitutional Court’s adjudication process. It found that the law is indeterminable, because the court’s decisions are not based on the interpretation of the law, but on the individual judges’ background and personal preferences. This is so because the court uses the majority rule principle in its decisions: The perception of the majority of the judges becomes a decision of the court. It is argued that when taking a decision a judge does not apply the law but instead uses the law to justify his predetermined decision on the matter. The conclusion supports the critical legal scholars’ theory relating to the indeterminacy of the law. It tests the objectivity of the judges using their own previous decisions. / Criminal and Procedural Law / LL. M.

The traditional health care system as it prevails in South Africa is part of African culture and intricately linked with the African world view. It embraces traditional norms and values that have survived to this day. In this sense it is more than a constituent part of medical pluralism which has become a global phenomenon. The role of the traditional healer is far more extensive than that of the modern medical doctor. He advises on all aspects of life, including physical, psychological, spiritual, moral and legal matters. He shares the client's world view. He understands the significance of ancestral spirits, the belief in supernatural forces and the reality of witches. It is in this context that modern scientific medicine has not been able to replace traditional medicine, and arguably never will. Traditional medicine is faced with enormous challenges at present. Firstly, the traditional social order is fast disappearing, making way for the state and the individual whose rights as contained in the Bill of Rights of the 1996 Constitution of the Republic of South Africa may seriously clash with traditional norms. Secondly, especially in an urban environment, the healer may encounter stiff competition from more progressive colleagues and modern physicians. Thirdly, scientific medicine basically regards traditional activities as unscientific, unregulated, often harmful and sometimes fatal. Fourthly, anti-witchcraft legislation hinders the traditional practitioner to deal with witches in the culturally appropriate manner. Traditional medicine will not go away. It is therefore necessary to find ways and means to see it practised in a safe and competent manner. As healers agitate for official recognition, it will be regarded as their corresponding duty to professionalise the traditional sector, create a traditional medical council and establish a register of bona fide healers who possess stipulated qualifications and are subject to rules of conduct and discipline. The modern and traditional sectors are essentially complementary and should be accommodated within a legal framework of official health care that protects healers and healed alike. The legal implications of this strategy are discussed in a global as well as regional African context. / Jurisprudence / LL.D.

Law / LL.M.

Indiana University-Purdue University Indianapolis (IUPUI) / The Catholic Church is widely known for its opposition to birth control. Yet statistics show that the vast majority of American Catholics use birth control. While multiple studies have been conducted on a larger quantitative scale about the use or attitudes of American Catholics toward birth control, there have not been qualitative studies to understand the experiences of Catholics who use contraception. This study is particularly timely given the recent Catholic opposition to the Affordable Care Act’s mandate of employee healthcare provided birth control as well as, the extraordinary synod of bishops to discuss pastoral challenges to family life in October 2015. Fourteen married Catholic women were interviewed about their religious identities and experiences using contraception. Analysis demonstrated how these women constructed a religious identity by maximizing certain aspects, such as prayer and service, while minimizing other aspects, such as individual autonomy and denominational distinctions, of their religious identity. However in order to cope with the tension between their salient religious identity and their contraceptive decision making women utilizing multiple mechanisms. Specifically, they made boundaries around which types of contraception were acceptable and limits to church or individual authority; they justified their decisions based on medical necessity or betrayal they felt from the church; they legitimated their decisions by discussing God’s control and their husband’s perceptions of NFP; and they normalized their decisions through their desire to care for their children and be sexually intimate with their husbands. This research illuminates unique challenges that religious women face in their sexual decision making and sexual health practices that can help sex educators and health care providers care for women. Additionally, the Catholic Church and American Catholics make up huge forces in education, health care, charity, politics, and employment. However, not all Catholics follow the rules of the church. Those members who remain an active part of the Catholic Church, such as the practicing Catholics in this study can influence the way the church changes. By better understanding the experience of these dissenters, social researchers may be able to better understand the future of the Catholic Church.

Cancer is regarded as a global disease and one of the leading killer diseases in the world. The reason why cancer is so widespread and often misunderstood stems from multiple factors, namely, the lack of knowledge about cancer, unfair discrimination of persons living with cancer, inadequate or inappropriate treatment provided to patients, the stigma attached to cancer, misdiagnosis and late diagnosis of persons living with cancer, as well as the inadequate provision of screening programs to detect cancer at an early stage. The combination of these issues raises alarming medico-legal problems that merit further attention. The thesis will explore the origin, nature, philosophical and clinical aspects pertaining to cancer, as well as legal issues related to cancer and oncology. The study will conclude with recommendations aimed at mitigating and addressing the shortcomings that exist in the medico-legal framework. The study will also draw on a legal comparison of relevant South African, English and American laws and regulations. Since this thesis entails focussing on medico-legal principles, the study will draw on aspects of medical law, labour law, law of contract, law of delict, constitutional law and criminal law. / Private Law / LL. D.