Allowing Competent Children in South Africa to refuse Medical Treatment: Lessons from England

by | Jan 19, 2022 | SLR, SLR V32 I3

Allowing Competent Children in South Africa to refuse Medical Treatment: Lessons from England

Author: Hanneretha Kruger

ISSN: 1996-2193
Affiliations: B lur LLB (UFS) LLD (Unisa), Professor of Private Law, University of South Africa
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 410 – 434
https://doi.org/10.47348/SLR/2021/i3a3

Abstract

This article considers the question whether the right of children to consent to medical treatment includes the right to refuse medical treatment, as is the case with adult patients. If this question is answered in the affirmative, a second question arises, namely whether the protection of this right of children is as strong as the protection provided to their adult counterparts. More particularly, do children have the right to refuse medical treatment if that refusal is considered to be unreasonable or irrational by the child’s parents or doctors? If this question is answered in the negative, a third question is whether the differential approach to consent by child and adult patients is justified. In the first part of the article, the position in English law is explored. In the second part of the article, the South African legislative framework, particularly the Children’s Act 38 of 2005 and the National Health Act 61 of 2003, is considered. This is done against the background of international and regional human rights instruments and the Constitution of the Republic of South Africa, 1996. The lessons learned from the developments in English law are used to suggest a way forward in South African law.

Religion, Culture and the Constitutionality of the “Avoidance of Doctrinal Entanglement” Principle

by | Jan 19, 2022 | SLR, SLR V32 I3

Religion, Culture and the Constitutionality of the “Avoidance of Doctrinal Entanglement” Principle

Author: S de Freitas

ISSN: 1996-2193
Affiliations: B Proc LLB LLM LLD, Professor of Public Law, University of the Free State, Adjunct Professor of Law, School of Law, University of Notre Dame Australia (Sydney)
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 435 – 454
https://doi.org/10.47348/SLR/2021/i3a4

Abstract

The South African judiciary supports the protection of the autonomy of religious associations. The “avoidance of doctrinal entanglement” principle accompanies this protection, which means that the judiciary is markedly hesitant to entangle itself in the essential doctrine held by the members of a religious association. The application of this principle has recently been criticised for purportedly resulting in religious practices being adjudicated separately and in some way shielded from constitutional scrutiny, while all cultural practices are expected to be imbued with a constitutional ethos. In response, it is argued that the “avoidance of doctrinal entanglement” principle is nothing more nor less than the commitment of the Constitution of the Republic of South Africa, 1996 (the “Constitution”) to the protection of fundamental beliefs (whether religious or non-religious) and its concomitant ideals towards the advancement of diversity. The said principle should therefore not be understood as presupposing that the right to freedom of religion be prioritised above that of the right to freedom of culture. The Constitution, as is the case with the right to freedom of religion, expects the judiciary to protect freedom of cultural practices where such practices are reasonable and in accordance with the public order. To argue that the “avoidance of doctrinal entanglement” principle should be ousted will bode unfavourably not only for the protection of the right to freedom of religious associations but also for the protection of cultural practices and consequently for the advancement of diversity.

Airbnb in the City of Cape Town: How could the Regulation of Short-Term Rental in Cape Town affect Human Rights?

by | Jan 19, 2022 | SLR, SLR V32 I3

Airbnb in the City of Cape Town: How could the Regulation of Short-Term Rental in Cape Town affect Human Rights?

Author: Sarah Fick

ISSN: 1996-2193
Affiliations: LLB LLM PhD, Senior Lecturer, University of the Western Cape
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 455 – 481
https://doi.org/10.47348/SLR/2021/i3a5

Abstract

Short-term home rental in Cape Town, like Airbnb, may create tension between the interests of several affected parties. To cater for the interests of these affected parties, the state may choose to regulate the short-term rental housing market. Whichever regulatory route it will take, the state should take into account the interests of those affected. More importantly, it must consider how its regulations may affect the human rights of these interested parties. This contribution considers the way in which regulation may affect the human rights of those parties identified as (arguably) the primary parties affected by Airbnb. These are the property rights of the property owners wanting to place their properties on Airbnb and the housing rights of those wanting to live in the city. Considering how these regulations may affect the rights of these interested parties can guide lawmakers (both local – with a focus on the City of Cape Town – and national) when drafting regulations to ensure that they comply with their duty to respect, protect, promote and fulfil the rights in the Bill of Rights.

Evictions During the COVID-19 Pandemic and Beyond [Discussion of South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC)]

by | Jan 19, 2022 | SLR, SLR V32 I3

Evictions During the COVID-19 Pandemic and Beyond [Discussion of South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC)]

Authors: ZT Boggenpoel and S Mahomedy

ISSN: 1996-2193
Affiliations: BComm LLD, Professor of Public Law, Stellenbosch University, Chair of the South African Research Chair in Property Law, Stellenbosch University; LLB LLM, LLD Candidate and Research Intern at the South African Research Chair in Property Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 482 – 495
https://doi.org/10.47348/SLR/2021/i3a6

Abstract

While race-based laws have been formally removed from the South African legal system and various measures for redress are now available, the after-effects of colonialism and apartheid are still visibly present in the spatial inequalities and lack of access to housing throughout the country. Closely linked to this is the issue of unlawful occupation and evictions. Under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”), which aims to give effect to section 26(3) of the Constitution of the Republic of South Africa, 1996, evictions without a court order are prohibited. However, during COVID-19, there was a drastic increase in unlawful occupations and evictions, and particularly without a court order. This is extremely concerning given the devastating impact that evictions have, as well as the increased risk they pose to those affected in terms of COVID-19. In response to the pandemic, various regulations and guidelines were put in place by the government in line with the Disaster Management Act 57 of 2002. These regulations placed various limitations on many facets of life and rights, such as property rights and the right to evict, and included an initial moratorium on evictions. This leads to further questions relating to the increase in evictions, even with the initial moratorium. As such, this case note aims to re-evaluate evictions in the light of the recent judgment in South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC), which raised numerous questions and concerns relating to governmental responses to evictions during COVID-19. In particular, the note investigates the extent to which the regulations that pertain to evictions differ from the approach to evictions under PIE. The note then turns to the issue of occupied versus unoccupied structures – a distinction that has increasingly been used by government officials in an attempt to circumvent the need for a court order. Finally, this note will make recommendations in the light of the various issues discussed.

Potential Constitutional Concerns regarding Employees’ Rights during Business Rescue Proceedings

by | Jan 19, 2022 | SLR, SLR V32 I3

Potential Constitutional Concerns regarding Employees’ Rights during Business Rescue Proceedings

Authors: Clement Marumoagae and Siphethile Phiri

ISSN: 1996-2193
Affiliations: Associate Professor, University of the Witwatersrand, School of Law Visiting Associate Professor, National University of Lesotho, Faculty of Law; LLB LLM LLD Candidate Teaching Assistant, University of Venda, Department of Private Law
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 496 – 517
https://doi.org/10.47348/SLR/2021/i3a7

Abstract

The South African business rescue procedure has not yet been adequately tested against the Constitution of the Republic of South Africa, 1996. In particular, the extent to which company stakeholders could raise constitutional rights to litigate against companies placed under business rescue is not clear. This contribution discusses the apparent tension between the ideal of providing business rescue practitioners the breathing space to attempt to rescue companies and the desire of the employees of those companies to litigate against such companies when they are placed under business rescue. It appears that generally, courts seem to be of the view that the moratorium established in chapter six of the Companies Act 71 of 2008  is broad enough to include employment-related disputes and that during the  period of business rescue, employees are not permitted to litigate against their employer companies. Nevertheless, it would also appear that courts have not adequately considered how this moratorium should be balanced with employees’ constitutional rights, like the right to fair labour practices, social security and equality, and whether the moratorium legitimately and reasonably prohibits employees from protecting these rights by approaching  courts during business rescue proceedings. It is argued in this contribution that either the courts or the legislature should provide clarity on the matter.

Regulating Substantively Unfair Terms in Online Contracts

by | Jan 19, 2022 | SLR, SLR V32 I3

Regulating Substantively Unfair Terms in Online Contracts

Author: Sanmarie van Deventer

ISSN: 1996-2193
Affiliations: BComm LLB LLM LLD, Temporary Lecturer, Department of Private Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 518 – 542
https://doi.org/10.47348/SLR/2021/i3a8

Abstract

The possible risks that standard form contracts pose to consumers have long been recognised. This article focuses on the impact that the online environment has on these risks, and it questions whether existing rules sufficiently protect consumers against unfair or abusive provisions in online contracts (ie standard form contracts appearing in electronic form). Several clauses which are affected by the unique characteristics of the online environment are identified and analysed. These include clauses relating to the use of personal information and consumer-generated content, clauses affected by the ongoing nature of online contracts (such as unilateral variation and unilateral termination clauses) and clauses affected by the global nature of online contracts (such as choice-of-law and choice-of-forum clauses). It is concluded that existing measures of control are inadequate to ensure proper protection for online consumers. It may allow suppliers to rely on generally unread terms included in online contracts to exploit consumer data or content, to modify terms without proper notice, to cause loss to consumers through unilateral termination, and to deprive consumers of effective enforcement measures or legal remedies. Proposals are then made for legislative provisions that aim to prevent suppliers from abusing online terms.