Browsing by Author "Bhamjee, Suhayfa."

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An assessment of the implementation of the CYCC under the Child Justice Act 75 of 2008.
(2020) Singh, Chetna.; Bhamjee, Suhayfa.
No abstract provided.
Commercial surrogacy in South Africa: a rights based approach.
(2020) Chivenge, Lilleonah.; Soni, Sheetal Jacqueline.; Bhamjee, Suhayfa.
Abstract available in PDF.
Considerations for the legal recognition of advance directives: a comparative analysis.
(2019) Shreepal, Suraksha.; Bhamjee, Suhayfa.
An advance directive1 refers to a document drafted by a person in his2 full senses and who foresees that due to some physical or mental disease, he may fall into a state where he will no longer be able to make rational decisions on his medical treatment or care3. Within this document, he purports to make requests or give orders to those who will be responsible for his medical care or treatment4 when he is rendered unable to do so himself.However, South African Law has no clear legal guidelines or any definite statutes or legislation regarding advance directives5 except for the Health Professions Council of South Africa Guidelines6 and the South African Medical Association Guidelines7. The National Health Act8 does however to some extent mention and provide for the appointment of proxies and substitute healthcare decision makers which provides for an effective way for patients to appoint another to make treatment and consent decisions on their behalf when they can no longer do so themselves There is also no specific and direct case authority at common law to provide clarity10. The only case relating to Advance Directives and which was heard in a South African Court was the case of Clarke NO v Hurst11 which influenced the introduction of the Health Professions Council of South Africa Guidelines12 and the South African Medical Association Guidelines13. The only draft legislation in relation to advance directives in South Africa is the, South African Law Commission Report Project 86: ‘Euthanasia and the Artificial Preservation of Life’14 as well as the National Amendment Bill, 2018, (Private Member’s Bill)15. The Constitution16 is the supreme law of the land and the state has a duty to ensure that all rights are not violated or infringed against, at all costs17. However, Section 36 of the Constitution18 provides for a General Limitation Clause which provides for all rights within the Bill of Rights to be limited in terms of general application and states that any limitation must however, be reasonable and justifiable made with good cause. The right to dignity19, the right to life20, the right to privacy21 and the right to security and control over one’s body22 is of vital importance in relation to advance directives. These aforementioned rights affirm the rights of individuals to refuse treatment evenif it may result in their death23. Thus, this dissertation will argue and motivate that valid refusals of treatment or procedures contained in advance directives should be honoured and further given legal credence. Notwithstanding the existence of draft legislation, advance directives has not been implemented and introduced in South Africa, hence advance directives are not legally binding documents24. The physician’s liability also remains unclear if they comply with such directives without a court granting an order.This dissertation seeks to explore the different types of advance directives and the position in South Africa. It also compares and contrasts the position to other like-minded jurisdictions. Namely, Canada and the United Kingdom (UK). Canada will be focused on largely as many provinces within Canada have implemented legislation regulating the use of advance directives and which gives legal recognition to said advance directives26. The UK will be discussed as numerous case authorities exist favouring the use of advance directives27. Important to note is that, the UK does not only have case authority which deals with advance directives and end of life decisions but also respects and honours valid refusals of treatment as long as they were made in accordance to the requirements of the relevant legislation.
Death and dying in a constitutional democracy – an analysis of the South African criminal law and a call for law reform.
(2022) Bhamjee, Suhayfa.; Freedman, David Warren.; Reddi, Managay.
Murder is defined as the unlawful and intentional causing of the death of another human being. Suicide is not a crime. In South Africa, the act of assisting another person to commit suicide is prosecutable under the broad category of crimes classified as homicide – murder, attempted murder and culpable homicide; whether the assistance is the direct administration of a fatal drug or through the provision of the means by which to commit suicide. The current formulation of the common law is broad enough to include medically assisted yet consented-to deaths within the definition of the crime of murder. Some jurisdictions have decriminalised the acts of physician-assisted suicide and physician-administered euthanasia (collectively called voluntary active euthanasia -VAE) under specific conditions, notably the nature of the illness and the fact that a patient has requested and given informed consent for such assistance. In South African law, consent is not a defence to a charge of murder and, consequently, does not justify VAE, which is categorized as murder. When the elements of criminal liability are applied to VAE, they prove that the physician who assists a patient acts both causally and intentionally and cannot escape criminal liability because consent is not a defence in these circumstances. In contrast to VAE, deaths consented to, intended and caused through passive euthanasia practices (e.g. withdrawing treatment or withholding treatment and/or life-sustaining mechanisms and the administration of palliative care and palliative/terminal sedation) have been medicalised. In other words, this form of intentionally causing the death of a patient is seen as a legitimate form of medical treatment, even though it undeniably hastens and causes death. However, for policy reasons is not treated as nor categorised as the crime of murder, provided that the patient has consented to (either personally or through a proxy) such fatal medical treatment. The question of whether VAE should be de-criminalised was ventilated in 1998 when the South African Law Reform Commission considered arguments for and against decriminalisation of the practice, and a draft bill to that effect was prepared. To date, there has been no progress towards law reform by the Legislature. The case of Stransham-Ford re-ignited the issue. However, for various reasons, the court did not effect any change to the status quo. The Supreme Court of Appeal, however, did indicate that if a proper case was made, it might result in the development of the law to accommodate for a lawful form of medically-assisted dying. However, this would first require a thorough investigation into the reasons why the practice is unlawful and criminal in the light of the definitional elements of the crime of murder and the policy reasons for such criminalisation. Only once that has been thoroughly canvassed, can the question of the limit placed on autonomy and patient consent be gauged for whether consent could be a defence in the specific and limited circumstance of a VAE scenario. At its core, the focus turns to autonomy in decision making, policy reasons for disregarding autonomy, and whether arguments for and against decriminalisation can be sustained in light of the spirit, purport and objects of the Bill of Rights of the Constitution. Those in favour of the decriminalisation of VAE argue that the limit on autonomy and consent violates the constitutionally guaranteed rights to dignity, life and privacy. Those who are against it argue that the limit on autonomy is necessary to protect and preserve these very same rights. An analysis of these rights and the arguments can help determine whether reform or retention would be reasonable and justifiable under a Constitutional dispensation. This thesis considers the elements of criminal liability and the purpose for which the act of assisting another to die at their request has been criminalised to the extent that conduct on the part of an assisting physician is prosecutable as the common law crime of murder. The conclusion reached is that in the light of constitutional advancements, particularly in relation to the right to dignity as informed by autonomy, it is possible to decriminalise assisted dying when strictly confined to VAE in the medical context by moving from a position of criminalisation to medicalisation of the practice, as has been the case with passive euthanasia. This thesis advocates for neither a pro-life nor a pro-death policy but rather a pro-choice one, which would be in accordance with the cornerstone of constitutionalism in a state governed by constitutional democracy.
Desiring death: a critical analysis of advanced directives within the South African legal framework.
(2018) Govender, Jenny.; Bhamjee, Suhayfa.
No abstract provided.
The end of the rope: The Criminal Law’s perspective regarding Acts of Consensual Sexual Violence between adult partners within the South African, English and Canadian legal frameworks.
(2018) Soni, Vishay Kumar.; Bhamjee, Suhayfa.
Nestled within the Constitution lies a guarantee for the sanctity and enforcement of sections 10, being the right to human dignity, 11, promising the right to life and 12, protecting the freedom and security of the person.1 On the converse, the acts of consensual sexual violence between adult partners, from the practices of sadomasochism and BDSM, question the very essence of these protected Constitutional rights. South African criminal courts have not yet heard a matter concerning a dispute arising from consensual sexual violence. However, such may not be completely obscured within the vast discord of legality. The complexity and lingering shroud of legal ambivalence over this practice raises the question of whether South African courts will deem such activity as inherently criminal, based on existing legislation; along with the similarities in both national and international case law. Will a court find its definition within the common law crime of assault, or pay homage to the aforementioned Constitutional rights and rule in favour of the rights to privacy, dignity and freedom of expression? A court may also draw inspiration from the assessment of public policy, public interest and the often-illusive judicial perspective of victimless crimes. This dissertation analyses the development of relevant criminal cases within the jurisdictions of England and Canada involving consensual sexual violence, bringing varying degrees of bodily harm, and its displacement within those legal systems. The dissertation interprets and compares such developments by the implementation of a cross-jurisdictional timeline regarding cases of consensual sexual violence and similar acts. Such leads to the juxtaposition within South African criminal jurisprudence, paying homage to the relevant Constitutional rights guaranteed to every citizen within South Africa. The dissertation delves into the assessment and interpretation of relevant South African viewpoints regarding legal aspects such as consent, public policy, autonomy, dignity, sexuality, and elements of assault. This inquiry determines whether there is a duty upon the State to intervene and control such practices of consensual sexual violence in the democratic society,or whether there is any respite for the State within the private confines of consensual adult interactions. Ultimately, this dissertation analyses the possible legality of consensual sexual violence arising in varying degrees of bodily harm between consenting adult partners within South Africa. This is explored through perspectives of English and Canadian law by implementing a cross-jurisdictional timeline, in juxtaposition to the South African Constitutional prerogatives. Such a comparative inquiry leads to the possible position of the South African law in dealing with acts of consensual sexual violence and the interpretation of harm that emanates from these practices.
Paediatric euthanasia : do terminally ill mature minors have the right to die?
(2016) Gray, Simone Jacqueline.; Bhamjee, Suhayfa.
Euthanasia is a highly controversial and topical issue in South Africa at the moment. Following recent developments in common law, the need for euthanasia legislation in South Africa needs to be considered and further whether such legislation should allow for a mature minor to request euthanasia provided they are considered sufficiently mature to make such a decision. The purpose of this dissertation is to show the need for implementation of euthanasia legislation which would also permit terminally ill mature minors to request euthanasia. This research will involve a rights-based analysis in order to show that a terminally ill mature minor can successfully rely on his or her Constitutional rights to dignity, bodily integrity, privacy, equality, healthcare and freedom to request active euthanasia. There is a duty on the state to protect and promote the rights of terminally ill minors and it can be shown that it does such a minor more harm than good to force him or her to suffer unbearable pain until their natural death occurs. Having shown that minors can rely on the rights above, this dissertation will conduct an investigation of a child’s right to autonomy and bodily integrity in order to show that to limit a child’s right to make decisions about his or her own body is an overextension of legal paternalism. In all matters concerning a child, the child’s best interests are always of paramount importance. The purpose of this research is to show that it cannot be in the child’s best interests to force a terminally ill child to continue to suffer until their natural death despite the child requesting otherwise. In the discussion of paediatric euthanasia, the concept of competence to make a decision will also be considered. It is essential that should a child be permitted to request euthanasia, that child must be sufficiently competent and mature to make the decision to die. Methods of assessing competency and maturity will be analysed in addition to existing legislation, such as the Children’s Act,¹ which specifically provides instances in which a child can make a decision regarding their own body, showing an acknowledgement by the legislature of the need to promote and protect a child’s right to autonomy. The final section of this dissertation considers the foreign jurisdictions of Belgium and the Netherlands in order to critically assess how euthanasia legislation can be implemented with the inclusion of children. These are the only two jurisdictions worldwide which allow for a child to request euthanasia. The South African Law Commission’s report on euthanasia is also considered to contemplate the need for safeguards in respect of euthanasia that will ensure minimal abuse. ² The research is concluded by suggesting safeguards for implementation in legislation which permits terminally ill adults and mature minors to request euthanasia.
Physician assisted suicide in South Africa : the constitution and the socio-economic dilemma.
(2018) Sikhulumi, Ndondo.; Bhamjee, Suhayfa.
No abstract provided.
Sentencing juveniles according to the Child Justice Act: a critical evaluation of application of the principle that "detention must be a measure of last resort and for the shortest possible period of time" in the case law.
(2016) Gurahoo, Juanita.; Bhamjee, Suhayfa.
The 1990s gave momentum to the Child Justice Movement motivated by the need for a separate criminal justice system to deal with juvenile delinquency. The movement’s focus was on law reform, child detention, and restorative justice. International instruments endorsed by South Africa contributed to the promulgation of children’s rights under the Constitution. The Constitution brought about change regarding the treatment of juvenile delinquents in conflict with the law. Section 28 emphasises that the best interests of the child is of paramount importance, apropos of every matter that affects the child, including detention. The main objective of the CJA is to divert juvenile delinquents away from the criminal justice system by means of restorative justice conditioning to prevent re-offending. However, the CJA acknowledges that diversion may be unsuitable, inadequate, and unsuccessful, hence the creation of child justice courts to sentence juvenile delinquents. The CJA does not only set out the rights of children, but also it lays down when imprisonment may occur, the various sentences that may be imposed, and the benefits of treating children differently from adults. The guiding principle behind the CJA is that children should not be treated more severely than adults; and one must have regard to international instruments which state that detention should always be a measure of the last resort and for the shortest possible period. Despite these fundamental legislative changes, the research has indicated that the majority of sentencers have imposed lengthy detention sentences for juveniles who have committed serious crimes in violation of the constitutional principle that juvenile detention must be a measure of last resort and for the shortest possible period. It was found that the principle: ‘juvenile detention should be a measure of last resort and for the shortest possible period’ is not only vague, but creates inconsistency during sentencing because of its inability to give objective sentencing guidelines and the operation of excessively wide judicial discretion. This results to numerous appeals and reviews of sentences, while children’s rights are not upheld in the most stringent manner as required by the Constitution and international instruments. These juvenile rights violations can be attributed to the fact that the seriousness of the offence was found to be overemphasised at the expense of the youthfulness of the accused. Furthermore, it was found that there is little deviation in the length of sentences imposed under the CJA and that of the CPA. Similarly, there seems to be little deviation between the sentences imposed on juveniles and those that are imposed on adults. All the while restorative justice is ignored. The aim of this dissertation was to investigate the legislative sentencing principles for juveniles aged 14 years and older who have committed serious crimes. This dissertation questioned whether the constitutional entrenchment of juvenile rights and the promulgation of the CJA had made any substantial difference in the types of sentences and sentence duration imposed on juveniles who commit serious crimes. It was recommended that the legislature should provide an objective juvenile sentencing guideline to limit the operation of excessively wide judicial discretion and combat the vagueness sentencers experience of the principle that juvenile detention should be a measure of last resort and for the shortest possible period. The Dutch are renowned worldwide for their liberal sentencing regime promoting restorative justice practices. Hence, it was recommended that the legislature should opt to create an objective juvenile sentencing guideline which is based on the Dutch bos-polaris sentencing guidelines. Furthermore, it was recommended that restorative justice sentences should be emphasised and endorsed amongst sentencers. The CJA is primarily based on the premise that restorative justice 6 will allow for the rehabilitation and reintegration of juvenile offenders. This premise is supported by academics who have frequently asserted that juveniles are more prone to rehabilitation than adults; and that research has found juvenile rehabilitation to be highly successful.
Victim precipitation in the crime of rape: does it still feature as an evidentiary tool and barrier to reporting and convictions in South Africa. A case analysis.
(2018) Enigbokan, Omotunde Omotayo.; Bhamjee, Suhayfa.; Toohey, Jacintha Deleane.
No abstract available.