Suchergebnisse

It has recently been suggested that ethically and legally the obtaining of biological samples for research after death during the COVID-19 pandemic in South Africa justifies a waiver of consent followed by a deferred proxy consent. However, it is submitted that because deceased persons are not protected by the Constitution, and only partially protected by common law and statute law, such consent and the need for consent to autopsies may be dispensed with altogether under the common law doctrine of 'necessity'. It is pointed out that such information is in the public interest because it will inform critical care facilities on how to save lives of future patients and assist government in responding to the COVID-19 pandemic by adequate planning. It is also reasonably justifiable in the public interest to ascertain the COVID-19 status of deceased persons who may have been exposed to the virus, in order to protect their family, friends, healthcare practitioners, undertakers and staff members, and members of the public with whom they have been in contact. Finally, it is suggested that the law can be clarified by amending the Disaster Management COVID-19 regulations to do away with consent for such autopsies or tissue sample collections from deceased persons exposed to the risk of contracting the virus, subject to certain conditions.

Access to justice in South Africa improved dramatically during the 1990s, especially after the introduction of a constitutional democracy in 1994. Although the Constitution guarantees access to legal representation in criminal cases this has posed new challenges for law schools and law clinics regarding civil cases. The right to legal representation in civil matters has not been tested in the Constitutional Court, and the burden of providing this service is increasingly falling on NGOs and law clinics, particularly in respect of social and economic rights. This has led to exciting new opportunities such as law clinics and NGOs entering into formal partnerships with the state-funded legal aid scheme to assist in the delivery of legal services and advice. As a result law clinic operations have become more focused and more sophisticated. At the same time "Street law" programmes are assisting the government in achieving its mission of promoting a culture of legality, human rights and democracy. The South African experience is that law schools in developing countries can make a significant contribution to access to justice in both repressive and democratic political environments. They can do likewise in educating ordinary citizens about their legal rights. What sets developing countries apart from developed countries is that law schools in the former have a special duty to serve their communities. This is because they often operate as a privileged island in a sea of scarce resources, particularly when it comes to providing access to justice for the poor.

The term 'access to justice' is generally used to refer to the provision of access to state-sponsored health, housing, welfare, education and legal services, particularly for the poor. In the narrow sense it refers to access to legal services which include access to legal advice and legal representation. In law schools this access can be provided by students and staff working in 'live client' law clinics and by using law students in 'Street law' programmes to provide access to information about legal rights and responsibilities to the general public. Thus, in developing countries law schools can play an important role by not only providing legal aid services to the poor but also by educating lay people about the law, human rights and democracy.South African law schools became directly involved in the delivery of legal advice and services during the early 1970s when the first 'live client' law clinics were set up by law faculties and non-governmental organisations (NGOs). During this period very few law schools sought to change the apartheid system by becoming directly involved in human rights issues. In the mid-1980s 'Street law' programmes began to be introduced at law schools to educate people about their legal rights and the need for change. By the 1990s an increasing number of law schools became actively involved in the promotion of human rights and democracy, and several legal academics were involved in the drafting of the new Constitution.