Department of Public Law

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Browsing Department of Public Law by browse.metadata.advisor "Du Plessis, L. M."

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    An assessment of constitutional guarantees of religious rights and freedoms in South Africa
    (Stellenbosch : Stellenbosch University, 2002-03) Gildenhuys, J. L.; Du Plessis, L. M.; Stellenbosch University. Faculty of Law. Dept of Public Law.
    ENGLISH ABSTRACT: The central issue which is considered in this thesis is the meaning of the constitutional guarantees of religious rights and freedoms in South Africa. In other words, it is concerned with the functions of the state, through its laws or conduct, in respect of religion and with its relationship towards the institutional church or religious community. It is argued that religious freedom is, in fact, a bundle of rights and freedoms. The "essential rights and freedoms of religion" which constitute this "bundle" are identified in the context of the historical development of religious rights. It is shown that religious rights theories have developed in the West which include concepts of freedom of conscience, the right to freely exercise religion, accommodation of pluralism of a confessional and institutional nature, equality of all religions before the law, nondiscrimination on the grounds offaith, institutional separation of church and state and some separation of state (or law) and religion. It is maintained that no single principle could by itself guarantee religious freedom and that these rights and freedoms are mutually. supportive of and mutually subservient to the highest goal of guaranteeing religious freedom. These essential rights and freedoms are therefore treated as constituting minimum standards for the protection of religious freedom and it is argued that religious freedom as protected in the South African Constitution should be interpreted to incorporate these multiple principles. It is shown that, prior to the promulgation of the interim Constitution the essential rights and freedoms of religion were not adequately protected in South Africa and that the constitutional entrenchment of these essential religious rights was necessitated by various factors in the preconstitutional South African society. The position with regard to religious rights and freedoms in post-Constitutional South Africa is considered by briefly sketching the broader constitutional context and by assessing the constitutional clauses protecting religious rights to determine whether the essential rights are protected. The religious rights provisions in the Constitution are analysed in detail in order to determine how they should be interpreted and implemented to ensure adequate protection of the essential rights and freedoms of religion in South Africa.
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    The constitutionality of pornography
    (Stellenbosch : Stellenbosch University, 2001-12) Van der Poll, Letetia; Du Plessis, L. M.; Gouws, A.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The advent of a constitutional democracy in South Africa after the first non-racial democratic elections in 1994 and the subsequent adoption of a final constitution in 1996 introduced a legal order based on "democratic values, social justice and fundamental rights". The inception of a constitutional democracy in South African encourages an assessment of the possible constitutional ramifications of pornography, specifically within a discourse on women's interests in equality, human dignity and physical integrity. Under the strong influence of United States First Amendment doctrine, pornography is defined (and protected in the "marketplace of ideas") as a particular mode of expression, thus allowing pornography to be viewed as part of the fabric of an open, free and democratic society. Within this doctrinal context, the recognition and entrenchment of freedom of expression have firmly placed pornography on both the South African constitutional and political agendas. The objective of this study is to address specific aspects of the debate on adult heterosexual pornography (that is, pornography produced for and targeted at the male heterosexual market) in order to establish its constitutionality. This dissertation is not, however, intended as a discourse on pornography as a possible threat to the moral fibre of society, but rather about pornography as an invasion ofwomen's particular constitutional interests in equality, human dignity as well as security in and control over their bodies. To this end, Chapter 2 serves to establish a suitable theoretical framework that is capable of facilitating a woman-centred analysis of adult heterosexual pornography within the ambit of the Bill of Rights in the South African Constitution. Consequently, the merit ofliberal feminism and radical feminist thought is critically assessed against the particular (constitutional and doctrinal) demands presented by a study of this nature. Chapter three - the first in a trilogy which seeks to evaluate the different conceptualisations of pornography in the United States, Canada and South Africa - critically reflects on the obscenity jurisprudence of the Supreme Court of the United States of America as well as radical feminist campaigns in Minneapolis and Indianapolis to re-conceptualise pornography and its harm. Chapter 4 entails a critical reflection on the capacity of Canadian constitutional jurisprudence to address adult heterosexual pornography either as a patriarchal structure which impacts on women's interests in equality, dignity and physical integrity or as a mode of expression which incites gender hatred. Chapter 5 traces the history of South African censorship law as prelude to a critical discussion of the current Films and Publications Act as well as the first decision of the South African Constitutional Court on the possible human rights implications of sexually explicit material. The chapter concludes with proposals for a suitable conception of the (constitutional) harm as well as a legal definition of adult heterosexual pornography for South African law. The constitutional implications of the proposed conceptions of pornography and harm are evaluated in Chapter 6 with specific reference to sections 9, 10 and 12 as well as subsection 16(2)( c) of the South African Constitution. Chapter 7 concludes the present study with some thoughts on the suitability of censorship as legal and political strategy.
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    The fate of Heath's special investigation unit : an evaluation in terms of the separation of powers doctrine
    (Stellenbosch : Stellenbosch University, 2002-03) Shackleford, Caroline Sara; Du Plessis, L. M.; Stellenbosch University. Faculty of Law. Department of Public Law.
    ENGLISH ABSTRACT: This thesis is a response to the judgment of the Constitutional Court in South African Personal Injury Lawyers v Heath, in which certain provisions of the Special Investigating Units and Special Tribunals Act were subjected to constitutional review. The outcome of the case was the striking down of certain provisions of the Act as unconstitutional, and the removal of Judge Willem Heath from his position as head of the Unit. The provisions were said to infringe upon the principle of separation of powers, an implicit term of the Constitution of South Africa. This principle affects the extent of the judicial power because of its influence on determining the acceptability of extra-judicial functions. The doctrine of separation of powers is therefore considered in its historical and theoretical context, with particular reference to the way in which it tends to limit or define the role of judges. Following this analysis, the status of institutions supporting constitutional democracy is examined, and the legislation governing Special Investigating Units is compared with that which regulates the office of the Public Protector. As a result, some alternative legislative means of achieving the ends of the Units, namely the combating of state corruption and maladministration, are suggested.
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    A legal perspective on the power imbalances in the doctor-patient relationship
    (Stellenbosch : University of Stellenbosch, 2010-03) Le Roux-Kemp, Andra; Du Plessis, L. M.; University of Stellenbosch. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The unique and intimate relationship that exists between a medical practitioner and his/her client is possibly one of the most important relationships that can come into being between any two people. This relationship is characterised and influenced by the qualities and attributes specific to the nature and historical development of medical care, as well as medical science in general. The doctor-patient relationship is also influenced by the social dynamics of a particular community, environmental factors, technological advances and the general social and commercial evolution of the human race. With regard to medical care and health service delivery, the doctor-patient relationship is furthermore vital to the quality of the care provided, as well as to the outcomes and relative success of the specific medical intervention or treatment. One of the distinct characteristics of the doctor-patient relationship is the power imbalance inherent in this relationship. The medical practitioner has expert knowledge and skill, while the patient finds himself or herself in an unusually dependent and vulnerable position. It is because of this important role that the doctor-patient relationship still plays in health service delivery today; the susceptibility of the relationship to a variety of influences, and the characteristic power imbalances inherent in this relationship, that a study of the doctor-patient relationship in South African medical- and health law is necessary. The characteristic power imbalances will be considered from a legal perspective in this dissertation. This study provides a comprehensive source of the doctor-patient relationship from a legal perspective. Where relevant, references are made to theories and principles from other disciplines, including sociology, economy and medical ethnomethodology. The prevalence and consequences of power imbalances in the doctor-patient relationship are identified and discussed with the aim of bringing these to the attention of both the legal fraternity, and medical practitioners. Specific problem areas are identified and solutions are offered, including the following: • The adverse consequences of power imbalances inherent in the doctor-patient relationship on the medical decision-making process are considered from various perspectives. With regard to these adverse consequences, the doctrine of informed consent is analysed and evaluated in great detail. • The influence of paternalistic notions in health service delivery; the business model of health service delivery and the effects of managed care and consumer-directed health care on the doctor-patient relationship and health service delivery in general are also analysed from a legal perspective, and specifically with regard to the power imbalances inherent in this relationship. • The role of autonomy, self-determination and dignity, as well as the principles of beneficence in medical practice, are reconsidered in an attempt to provide a solution for redressing the power imbalances inherent in the doctor-patient relationship. • The fiduciary nature of the doctor-patient relationship and the special role of trust in the relationship are emphasised throughout the dissertation as the focal point of departure in the doctor-patient relationship and the main constituent in any legal endeavor to redress the power imbalances inherent in it.