Suchergebnisse

Street Law and Public Legal Education is in honour of Ed O'Brien, one of the pioneers of Street Law and public legal education in the United States and elsewhere, and contains a selection of contributions from legal literacy educators from 22 countries: Azerbaijan, Australia, Bangladesh, Bosnia and Herzegovina, the Czech Republic, Ghana, Greece, Indonesia, Ireland, Italy, Jamaica, Myanmar, Nigeria, Senegal, Slovenia, South Africa, South Sudan, Spain, Thailand, Turkey, the United Kingdom and the United States. Some countries have more than one contribution where they appear to be of particular interest.

Whether persons wishing to have doctor-assisted suicide or voluntary active euthanasia may make a court application based on their rights in the Constitution has not been answered by the Appeal Court. Therefore, if Parliament does not intervene beforehand, such applications can be made – provided the applicants have legal standing, full arguments are presented regarding local and foreign law, and the application evidence is comprehensive and accurate. The Appeal Court indicated that the question should be answered by Parliament because 'issues engaging profound moral questions beyond the remit of judges to determine, should be decided by the representatives of the people of the country as a whole'. However, the Government has not implemented any recommendations on doctor-assisted suicide and voluntary active euthanasia made by the South African Law Commission 20 years ago. The courts may still develop the law on doctor-assisted death, which may take into account developments in medical practice. Furthermore, 'the possibility of a special defence for medical practitioners or carers would arise and have to be explored'.

In the recent case of Stransham-Ford v. the Minister of Justice and Correctional Services, the North Gauteng High Court held that a terminally ill patient who was experiencing intractable suffering was entitled to commit suicide with the assistance of his doctor and that the doctor's conduct would not be unlawful. The court was careful to state that it was not making a general rule about doctor-assisted suicide. The latter should be left to the Parliament, the Constitutional Court and 'future courts'. The judge dealt specifically with the facts of the case at hand. In order to understand the basis of the decision it is necessary to consider: (i) the facts of the case; (ii) the question of causation; (iii) the paradox of 'passive' and 'active' euthanasia; (iv) the test for unlawfulness in euthanasia cases; and (v) the meaning of doctor-assisted suicide. It is also necessary to clarify the present legal position regarding doctor-assisted suicide.

The Constitutional Court in the Teddy Bear Clinic appeal case held that the sections of the Sexual Offences Act that impose criminal liability for sexual offences on adolescent children under 16 years of age are invalid. The invalidity was suspended for 18 months to allow Parliament to correct the Act's defects. A moratorium was imposed on all investigations into, arrests in, prosecutions in, and criminal and ancillary proceedings regarding such section 15 and 16 offences. This includes the duty to report consensual sexual conduct between children under 16 years of age in terms of section 54 of the Act – pending Parliament's correction. However, it is submitted that the 'best interests of the child' principle in the Children's Act and the Constitution should guide all obligatory reporting situations involving sexual and other conduct of children, irrespective of whether they are adolescents under 16 years old or between 16 and 17 years old.