The criminal liability of health care practitioners for culpable homicide
- Authors: Dweba, Asavela
- Date: 2022-04
- Subjects: South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55511 , vital:52594
- Description: South African health societies and associations have allied to call for reform in the criminal law system involving the prosecution of health care practitioners, specifically on charges of culpable homicide. Warranted by the spate of criminal prosecutions against healthcare practitioners and the need for reform, this treatise investigates the criminal liability of healthcare practitioners for culpable homicide. Overall, this study aims to determine the recognition of criminal liability of healthcare practitioners, requirements for culpability, the level of negligence that constitutes culpable homicide, and whether the South African law can adjust the threshold for criminal liability in culpable homicide. An analysis of the consequences of legal literature concerning the offence of culpable homicide and medical negligence is provided. In addition, this study examines pertinent case law to devise a strategy for law reform in South Africa and the development of common law. The study includes a comparative study of foreign jurisdictions to incorporate the position in England, Scotland, New Zealand, India, and Canada from which South Africa can adopt some principles within the South African context. The analysis revealed that South Africa has a low threshold in the form of ordinary negligence required to establish criminal liability in cases of culpable homicide while a higher threshold is required for the selected foreign jurisdictions. Furthermore, this treatise contends that the current South African criminal justice regime is lacking in identifying the ideal degree of fault required for criminal conduct. Thus, reform of South Africa’s approach in dealing with healthcare practitioners suspected/ accused of causing the death of patients under medical care is necessary. This study recommends that the South African criminal law justice system should be developed by way of legislative intervention in which ‘gross negligence or recklessness’ will serve as a measure to criminalise the conduct of healthcare practitioners. This study acknowledges the noble role played by healthcare practitioners in the society and notes that medicine is not an exact science. Therefore, this treatise does not advocate a mandatory exoneration of criminal liability of healthcare practitioners. Rather, for a fair and evidence-based prosecution of reckless medical practices. , Thesis (LLM) -- Faculty of Law, Department of Criminal and Procedural Law, 2021
- Full Text:
- Date Issued: 2022-04
- Authors: Dweba, Asavela
- Date: 2022-04
- Subjects: South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55511 , vital:52594
- Description: South African health societies and associations have allied to call for reform in the criminal law system involving the prosecution of health care practitioners, specifically on charges of culpable homicide. Warranted by the spate of criminal prosecutions against healthcare practitioners and the need for reform, this treatise investigates the criminal liability of healthcare practitioners for culpable homicide. Overall, this study aims to determine the recognition of criminal liability of healthcare practitioners, requirements for culpability, the level of negligence that constitutes culpable homicide, and whether the South African law can adjust the threshold for criminal liability in culpable homicide. An analysis of the consequences of legal literature concerning the offence of culpable homicide and medical negligence is provided. In addition, this study examines pertinent case law to devise a strategy for law reform in South Africa and the development of common law. The study includes a comparative study of foreign jurisdictions to incorporate the position in England, Scotland, New Zealand, India, and Canada from which South Africa can adopt some principles within the South African context. The analysis revealed that South Africa has a low threshold in the form of ordinary negligence required to establish criminal liability in cases of culpable homicide while a higher threshold is required for the selected foreign jurisdictions. Furthermore, this treatise contends that the current South African criminal justice regime is lacking in identifying the ideal degree of fault required for criminal conduct. Thus, reform of South Africa’s approach in dealing with healthcare practitioners suspected/ accused of causing the death of patients under medical care is necessary. This study recommends that the South African criminal law justice system should be developed by way of legislative intervention in which ‘gross negligence or recklessness’ will serve as a measure to criminalise the conduct of healthcare practitioners. This study acknowledges the noble role played by healthcare practitioners in the society and notes that medicine is not an exact science. Therefore, this treatise does not advocate a mandatory exoneration of criminal liability of healthcare practitioners. Rather, for a fair and evidence-based prosecution of reckless medical practices. , Thesis (LLM) -- Faculty of Law, Department of Criminal and Procedural Law, 2021
- Full Text:
- Date Issued: 2022-04
Evaluating the influence of electoral violence on democratic consolidaton in Sub-Saharan Africa: the case of the democratic republic of congo from 2006-2018
- Authors: Poggi, Giovanni
- Date: 2020-12
- Subjects: Port Elizabeth (South Africa) , Eastern Cape (South Africa) , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55073 , vital:49035
- Description: The democratic legitimacy of African executives has been called into question substantially over the last decade. Using the Democratic Republic of Congo (DRC) as a case study, this evaluative research seeks to analyse how African executives and political elites continue to play a crucial role in inducing civil unrest and electoral violence. For African democracy to develop, there must be enforced resolutions to eradicate issues facing both procedural and substantive democracy on the continent. This research examined electoral violence and unconstitutional acts that aggravate electoral system abuse and diminish the consolidation of democracy in sub-Saharan African states, in particular the DRC. A specific focus on the leadership of Joseph Kabila in the DRC forms the case study component of this research. In 2016, elections were postponed in the DRC and the DRC’s constitutional court interpreted Article 70 and Article 73 of the constitution in a manner that allowed President Kabila to remain in office until a newly elected president was installed. The court’s ruling and interpretation of Article 70 and Article 73 was an attempt to avoid a power vacuum. The study evaluated the components that trigger the escalation of electoral violence in Sub-Saharan African states. The study reports on different contributory factors, including but not limited to, the impact of predatory and rent-seeking leadership towards electoral manipulation; and the effect of patron-client relations on democratic institutions. Even though elections are not the only indicator of democracy stability in a state, this study demonstrated how electoral violence threatens the consolidation of democracy in sub-Saharan African states, in particular the DRC. In examining electoral violence, a desktop analysis method, which was used in the study, involved the collection of data from existing resources in order to provide a more critical lens to understanding electoral violence in the DRC. The theoretical analysis used in the study is the Höglund (2009) framework on electoral institutions which outlined how political violence remains a pervasive feature in Sub-Saharan countries by linking the framework to patron-clientelism. , Thesis (MA) -- Faculty of Humanities, School of Governmental and Social Sciences, 2020
- Full Text:
- Date Issued: 2020-12
- Authors: Poggi, Giovanni
- Date: 2020-12
- Subjects: Port Elizabeth (South Africa) , Eastern Cape (South Africa) , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55073 , vital:49035
- Description: The democratic legitimacy of African executives has been called into question substantially over the last decade. Using the Democratic Republic of Congo (DRC) as a case study, this evaluative research seeks to analyse how African executives and political elites continue to play a crucial role in inducing civil unrest and electoral violence. For African democracy to develop, there must be enforced resolutions to eradicate issues facing both procedural and substantive democracy on the continent. This research examined electoral violence and unconstitutional acts that aggravate electoral system abuse and diminish the consolidation of democracy in sub-Saharan African states, in particular the DRC. A specific focus on the leadership of Joseph Kabila in the DRC forms the case study component of this research. In 2016, elections were postponed in the DRC and the DRC’s constitutional court interpreted Article 70 and Article 73 of the constitution in a manner that allowed President Kabila to remain in office until a newly elected president was installed. The court’s ruling and interpretation of Article 70 and Article 73 was an attempt to avoid a power vacuum. The study evaluated the components that trigger the escalation of electoral violence in Sub-Saharan African states. The study reports on different contributory factors, including but not limited to, the impact of predatory and rent-seeking leadership towards electoral manipulation; and the effect of patron-client relations on democratic institutions. Even though elections are not the only indicator of democracy stability in a state, this study demonstrated how electoral violence threatens the consolidation of democracy in sub-Saharan African states, in particular the DRC. In examining electoral violence, a desktop analysis method, which was used in the study, involved the collection of data from existing resources in order to provide a more critical lens to understanding electoral violence in the DRC. The theoretical analysis used in the study is the Höglund (2009) framework on electoral institutions which outlined how political violence remains a pervasive feature in Sub-Saharan countries by linking the framework to patron-clientelism. , Thesis (MA) -- Faculty of Humanities, School of Governmental and Social Sciences, 2020
- Full Text:
- Date Issued: 2020-12
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