Masters Degrees (Private Law)

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Browsing Masters Degrees (Private Law) by browse.metadata.advisor "Human, C. S."

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    Einde van lewe besluite ten opsigte van defektiewe babas : 'n juridiese perspektief
    (Stellenbosch : University of Stellenbosch, 2006.12) Rossouw, Elzaan; Human, C. S.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.
    End of life decisions regarding defective babies raise several controversial questions. The root of the problem in withdrawing or withholding life-sustaining treatment from defective babies lies in the conflict between human emotions, technological advancements and legal considerations. As a result of advances in medical science and neonatal technology, the lives of defective babies can often be saved or indefinitely prolonged. The question has become not whether we can treat these babies, but rather whether we should. Whether or not a defective baby’s life must be prolonged raises serious moral and ethical issues. A life compromised by severe physical and mental handicaps is weighed against an early and painless death. The best interest of the baby is the primary consideration from a legal point of view. Various factors must be taken into account to give content to this concept. Another central question is to determine who the decision maker(s) should be and what weight should be given to their opinions. Due to the fact that defective babies can not participate in this decision making process or communicate their wishes and preferences, surrogate decision makers must decide on their behalf. In sharp contrast to England, America and Canada, there is hardly any literature and no reported case law in South Africa to demonstrate the complexity of end of life decisions regarding defective babies. Selective non-treatment of defective babies have received little attention in the South African law. The Bill of Rights, inspired by regional and international Conventions determine the framework from a juristic perspective wherein decisions must be made and justified. This framework requires that the focus must be on the most vulnerable and dependant, namely the defective baby.
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    Perspectives on the best interests of the child : developments in the interpretation and application of the principle in the South African law relating to custody
    (Stellenbosch : Stellenbosch University, 2004-04) Basson, Lindinette; Human, C. S.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: The Constitution of the Republic of South Africa entrenches the best interests of the child as being of paramount importance in all matters concerning the child. This commitment to the promotion of the welfare of children is not unique to modern South African law, but is an acknowledged principle of the common law and international child law as well. With such well-established recognition the question, which forms the primary focus of this study, arises whether the principle of the best interests of the child is workable and applicable in real life scenarios where the custody of a child has to be decided. The challenge to the application of the principle in this context is to reach a decision that will protect the parent-child relationship regardless of the marital breakdown. The question is whether the principle allows for and creates an honest awareness of and commitment to the welfare of children that influence decisions in this context or whether courts and decision-makers merely pay lip service to it in order to conceal the haphazard way in which custody is awarded. In order to determine the workability and applicability of the principle, it is necessary to know how the principle has evolved in the South African legal context. Through the examination and analysis of existing literature, international conventions, legislation and case law, a number of different perspectives on the developments in the interpretation and application of the principle are provided. These perspectives culminate in the useful and constructive insight and conclusion that the value of the concept is dependant upon the correct approach to the principle and its characteristics. The defining characteristic of the principle of the best interests of the child is its inherent vagueness and indeterminacy. Though this subjects the principle to serious criticism, this study supports the argument that indeterminacy is in fact essential. It ensures not only the flexibility of the concept, rendering it applicable to the time, cultural sphere and social context and unique circumstances of each case it is applied to, but a holistic approach to the child as individual and family as a unit as well. This holistic approach forms the foundation of the lists of criteria in McCall v McCall 1994 (3) SA 201 (C) and the Children's Bill, thereby establishing the workability and value of the principle for fair and just results in all decisions pertaining to the custody of children.