THE SA ATTORNEYS’ JOURNAL JULY 2021 CAN GOVERNMENT MANDATE THE COVID-19 VAcciNE AGAINST YOUR WILL? A DISCUSSION ON INTERNATIONAL HUMAN RIGHTS LAW Grandchild’s claim against grandparent’s Medical negligence and criminal estate: Weighing up child maintenance responsibility – when the court infringes on a against freedom of testation medical practitioner’s rights to a fair trial Navigating the way to justice – a discussion Reconsidering a restorative on truth, justice and justice approach in reconciliation criminal court proceedings OGILVY SA 34601/EOGILVY TIME TO MAKE YOUR DREAMS YOUR REALITY. If you believe you have the potential to change the world, your journey starts here. Embark on your legal career at the STADIO School of Law. · Bachelor of Arts in Law · Bachelor of Commerce in Law · Bachelor of Laws (LLB) · Higher Certificate in Paralegal Studies STADIO.AC.ZA | 087 158 5000 | [email protected] FORMER LY Stadio is a registered private higher education provider. S THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL CONTENTS JULY 2021 CAN GOVERNMENT MANDATE THE COVID-19 VACCINE AGAINST YOUR WILL? A DISCUSSION 12 ON INTERNATIONAL HUMAN RIGHTS LAW Grandchild’s claim against grandparent’s Medical negligence and criminal estate: Weighing up child maintenance responsibility – when the court infringes on a 16 against freedom of testation medical practitioner’s rights to a fair trial 20 July 2021 Issue 619 ISSN 0250-0329 Navigating the way to justice – a discussion Reconsidering a restorative 26 on truth, justice and justice approach in reconciliation criminal court proceedings 22 Regular columns Articles on the De Rebus website: Editorial 3 Justice Minister pleased with progress on legal fees Practice management and access to justice Risk management window dressing 4 Minister Lamola sends a message of appreciation The importance of a trust audit and the value while tabling OCJ’s budget to the National Assembly thereof for the legal practice 6 Justice Maya elected Regional Director for West and Southern Africa of the Practice note International Association of Sars disputes – receiving an assessment is not Women Judges the end of the road 8 Transformation of the legal Data privacy laws in South Africa 10 sector is a societal function The sustainability of the LSSA discussed at its AGM The law reports 29 Case note Can government mandate the 12 Minister of Home Affairs may delegate any power COVID-19 vaccine against your will? conferred to them, including the power to deprive A discussion on international human citizenship under the Citizenship Act 34 rights law here has been a great deal of talk about subjecting New legislation 36 people to who are not vaccinated to restrictions in- volving their access to public places, flights, hotels, T Employment law update and continued employment. This indirectly makes vac- cinations compulsory. In fact, disciplinary procedures Suspension of picketing rules 38 have even been launched against professionals who have Dismissed for violating COVID-19 protocols 39 publicly expressed their opposition to compulsory vac- cination. Extraordinary Research Fellow, Dr Willem van Recent articles and research 41 Aardt, examines compulsory vaccination through the lens of international human rights law and weighs up a pro-choice versus a pro-mandate approach. Book announcements 44 DE REBUS – JULY 2021 - 1 - EDITOR: FEATURES Mapula Oliphant NDip Journ (DUT) BTech (Journ) (TUT) Grandchild’s claim against grandparent’s 16 PRODUCTION EDITOR: estate: Weighing up child maintenance against Kathleen Kriel freedom of testation BTech (Journ) (TUT) SUB-EDITOR: SUB-EDITOR: he case of Van Zyl NO v Getz NO [2020] 3 All SA 730 (SCA) pre- Kevin O’ Reilly Isabel Joubert sented the Supreme Court of Appeal (SCA) with the opportunity MA (NMU) BIS Publishing (Hons) (UP) Tto provide long-awaited clarity on a decade long legal question. NEWS REPORTER: EDITORIAL SECRETARY: As the High Court unfortunately missed the opportunity due to poor Kgomotso Ramotsho Shireen Mahomed Cert Journ (Boston) strategic litigation and ignominious judicial service, it was then up to Cert Photography (Vega) the SCA to surmount the jurisprudential hurdle posed by Barnard, NO v Miller 1963 (4) SA 426 (C) and develop the common law in terms EDITORIAL COMMITTEE: of the Constitution to recognise a grandchild’s claim for maintenance Giusi Harper (Chairperson), Peter Horn, against the estate of a grandparent. Legal practitioner, Ndivhuwo Maboku Mangena, Mohamed Randera Ishmel Moleya, reviews the court’s approach in this matter and notes EDITORIAL OFFICE: 304 Brooks Street, Menlo Park, the duty to align South Africa’s laws with the Constitution requires col- Pretoria. PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. laboration between judicial officers and legal practitioners as officers Tel (012) 366 8800 Fax (012) 362 0969. of the court. E-mail: [email protected] DE REBUS ONLINE: www.derebus.org.za Medical negligence and criminal CONTENTS: Acceptance of material for publication is not a guar- 20 antee that it will in fact be included in a particular issue since this responsibility – when the court infringes on depends on the space available. Views and opinions of this journal a medical practitioner’s rights to a fair trial are, unless otherwise stated, those of the authors. Editorial opin- ion or comment is, unless otherwise stated, that of the editor and egal practitioner, Dr Llewelyn Gray Curlewis, discusses S v Van publication thereof does not indicate the agreement of the Law Society, unless so stated. Con tributions may be edited for clarity, der Walt 2020 (2) SACR 371 (CC), which dealt with an application space and/or language. The appearance of an advertisement­­ in Lfor leave to appeal against a judgment that saw an obstetrician this publication does not neces sarily indicate approval by the Law and gynaecologist convicted by a regional court of culpable homicide Society for the product or service ad ver tised. on the basis that he acted negligently in the care of his patient. The For fact checking, the De Rebus editorial staff use online products issue before the court was that of a ‘fair trial’ based on three grounds, from: namely, the admissibility of various pieces of evidence for the first • LexisNexis online product: MyLexisNexis. Go to: www.lexis- time in the judgment on conviction; the reliance on evidence of an ex- nexis.co.za; and pert witness by the state; and lack of evidence regarding causation. • Juta. Go to: www.jutalaw.co.za. PRINTER: Ince (Pty) Ltd, PO Box 38200, Booysens 2016. Reconsidering a restorative justice approach AUDIO VERSION: The audio version of this journal is available 22 free of charge to all blind and print-handicapped members of in criminal court proceedings Tape Aids for the Blind. ong before the separation of courts into criminal and civil divi- ADVERTISEMENTS: sions, wrongful acts could be redressed solely by compensation. Main magazine: Ince Custom Publishing Contact: Dean Cumberlege • Tel (011) 305 7334 LCompensation has always been a primary concern for victims Cell: 082 805 1257 • E-mail: [email protected] who suffer damages. Too much has possibly been made of the crimi- Classifieds supplement: Contact: Isabel Joubert nal court’s inability to deal with compensation and perhaps with a Tel (012) 366 8800 • Fax (012) 362 0969 few changes criminal courts could be adapted to process claims for PO Box 36626, Menlo Park 0102 • E-mail: [email protected] compensation. One may ask the question if it is right to force victims ACCOUNT INQUIRIES: David Madonsela of crime to take further civil action if all or most of the damages can Tel (012) 366 8800 E-mail: [email protected] be ascertained in a criminal court? Magistrate, Desmond Francke, ar- gues that compensation orders in criminal proceedings are desirable CIRCULATION: De Rebus, the South African Attorneys’ Journal, is published monthly, 11 times a year, by the Law Society of South as a means of repairing the harm caused by an accused’s criminal Africa, 304 Brooks Street, Menlo Park, Pretoria. De Rebus is circu- conduct. Moreover, if criminal courts had access to more comprehen- lated digitally to all practising legal practitioners and candidate sive means of addressing compensation, would victims compensation legal practitioners free of charge and is also available on general not be a more satisfactory part of a sentence than harsh penalties? subscription. NEW SUBSCRIPTIONS AND ORDERS: David Madonsela Tel: (012) 366 8800 • E-mail: [email protected] 26 Navigating the way to justice – a discussion on truth, justice and reconciliation SUBSCRIPTIONS: Postage within South Africa: R 1 990 (including VAT). etired physicist, Haroon Aziz, writes that the universal lesson Postage outside South Africa: R 2 100. from the consequences of the Azanian Peoples Organisation R(AZAPO) and Others v President of the Republic of South Africa and Others 1996 (8) BCLR 1015 (CC) judgment is that when good peo- De Rebus subscribes to the Code ple are exposed to corruption, they have the potential to become cor- © Copyright 2021: of Ethics and Conduct for South Law Society of South Africa 021-21-NPO African Print and Online Media that rupt. Furthermore, when drafting the judgment, did Justice Ismail Ma- Tel: (012) 366 8800 prescribes news that is truthful, accurate, fair and balanced. If we do homed anticipated the potentiality of presidents for unconstitutional not live up to the Code, contact the Public Advocate at (011) 484 3612 conduct. In addition, if he had, would there have been a need for the or fax: (011) 484 3619. You can also contact our Case Officer on Judicial Commission of Inquiry into Allegations of State Capture, Cor- Member of Member of [email protected] or The Audit Bureau of The Interactive lodge a complaint on the Press Circulations of Southern Africa Advertising Bureau Council website: ruption and Fraud in the Public Sector including Organs of State? www.presscouncil.org.za DE REBUS – JULY 2021 - 2 - EDITORIAL LSSA submissions on legal fees ne of the functions of the and that legal services are allegedly un- Law Society of South Africa affordable.