Clicks, carelessness and consequences: Navigating pharmacist negligence

Medical malpractice in South Africa, has gained significant momentum over the years. Healthcare professionals have had to ensure that their practices are insured for indemnification for significant amounts, in lieu of medical malpractice claims. This has resulted in healthcare professionals over insuring for medical malpractice and negligence claims, to ensure that they get suitably allocated legal representatives as well as cover in certain instances for the quantum sued by the aggrieved party. The burden of proof is that the plaintiff bears the duty to discharge on a balance of probabilities. This means that the version that was presented is more probable than the Defendant’s version, however, it does not end there, as the healthcare professional must have committed negligence, in that the reasonable medical practitioner would not have shown in the circumstances presented by the plaintiff. The paper navigates the procedural perspective of discharging the onus of proof in medical malpractice and negligence claims.

Litigation arising from medical negligence have continued to witness an incremental trajectory in the contemporary South African medical jurisprudence. As the number of claims continue to rise, so also does the financial expense in the form of cost of litigation on the part of the litigants and damages paid by the healthcare personnel and government agencies in successful cases. Such expense, however, palls into oblivion when compared with the reputational damage attendant such negligent conducts on the parts of both the healthcare personnel and the healthcare institutions. On the positive side, however, is that the growing instances of such claims have brought to the fore the need to interrogate the reasons and seek solutions with a view to attaining a more efficient health service delivery system in the country.

The new constitutional dispensation, like the idea of freedom in South Africa, is also not free of scepticism. Many a time when crime and criminal activity are rife, sceptics would lament the absence of ubuntu in society and attribute this absence to what they view as the permissiveness which is said to have been brought about by the Constitution with its entrenched Bill of Rights. 
 Firstly, I would like to take this opportunity and (attempt to) demonstrate the irony that the absence of the values of ubuntu in society that people often lament about and attribute to the existence of the Constitution with its demands for respect for human rights when crime becomes rife, are the very same values that the Constitution in general and the Bill of Rights in particular aim to inculcate in our society. 
 Secondly, against the background of the call for an African renaissance that has now become topical globally, I would like to demonstrate the potential that traditional African values of ubuntu have for influencing the development of a new South African law and jurisprudence. 
 The concept ubuntu, like many African concepts, is not easily definable. In an attempt to define it, the concept has generally been described as a world-view of African societies and a determining factor in the formation of perceptions which influence social conduct. It has also been described as a philosophy of life. 
 Much as South Africa is a multicultural society, indigenous law has not featured in the mainstream of South African jurisprudence. Without a doubt, some aspects or values of ubuntu are universally inherent to South Africa’s multi cultures. 
 The values of ubuntu are therefore an integral part of that value system which had been established by the Interim Constitution. 
 The founding values of the democracy established by this new Constitution arguably coincide with some key values of ubuntu(ism). 
 Ubuntu(-ism), which is central to age-old African custom and tradition however, abounds with values and ideas which have the potential of shaping not only current indigenous law institutions, but South African jurisprudence as a whole. 
 Ubuntu can therefore become central to a new South African jurisprudence and to the revival of sustainable African values as part of the broader process of the African renaissance.

(1) Background: Coastal spaces have been highly contested terrains in South Africa, dating from the colonial period to the present time. Inclusive documentation of the history of coastal access in South Africa is inadequate. The current paper aims to explore the history of coastal access in South Africa, dating back to precolonial times until the present. (2) Methods: this research includes the review of documents in order to understand the phenomenon. Documents ranging from pre-colonial times to the present regarding access to the coast in South Africa were explored. (3) Results: the alienation of the African majority from coastal access in South Africa has been systematically executed through various legislations. Although 1994 (democratic era) ushered in a political change, coastal spaces in South Africa still reflect historical racial divide, with former Caucasian areas well-endowed with facilities whilst others are still underdeveloped. The lack of access to coastal resources remains a challenge to many previously disadvantaged communities, owing to South Africa’s history of Apartheid. Apartheid spatial planning remains a factor that undermines equitable access to the coast. (4) Conclusions: Our conclusions show that, although the Native Land Act of 1913 was abolished, the failure to implement meaningful land redress continues to perpetuate Apartheid spatial order. Furthermore, a drastic shift in spatial planning and socio-economic development must be implemented to address the imbalances of the past. Although the Integrated Coastal Management Act (2008) is a progressive legislation, capacity and boldness is needed to implement the expropriation of coastal land for public interest. South African jurisprudence also needs to deal with the perceived unequal regard for private property rights and public property rights.

African nations have in common the brutal and humiliating experiences of racism, slavery, colonialism, exploitation, and marginalisation. I refer to this collective trauma as the triple humiliation of racism, slavery and colonialism. These shared experiences to a varying degree have informed those nations’ perspectives on equality and non-discrimination in the quest for the recognition of equal humanity. Unlike the rest of the continent, several countries in Southern Africa (ie, Namibia, South Africa, Zimbabwe) achieved black democratic rule towards the end of the twentieth century. Most notably, in 1994 South Africa realised democratisation and adopted an interim constitution. The final Constitution, promulgated in 1996, enshrines equality provisions that express lessons learned from South Africa’s history of racism, colonialism and apartheid – a past defined by institutionalised inequality.The Constitutional Court and other competent courts since 1994 have developed an impressive and coherent philosophy of equality. Although South African equality jurisprudence has echoes in all regions of Africa and beyond the legal sphere, no effort has been made to bring this radiating influence to its ultimate conclusion, namely that the South African Constitution and constitutional law largely articulates a truly African philosophy of equality. I draw just such a conclusion. In reflecting on the successes and shortcomings of the South African Constitution twenty years after its promulgation, I find that the equality jurisprudence is indisputably an enduring legacy, not only in South Africa, but in Africa as well. Earlier studies have not elevated the equality jurisprudence to an African jurisprudence because they did not connect the ideal of equality to the pan-African philosophy of the muntu or ubuntu. If the connection is made, different people in different parts of the continent will not merely be able to appropriate this philosophy; they will actively build on it as a rich, invaluable, living source of meaning, self-identity and self-worth.

Under international law, the right to education should be available, accessible, acceptable, and adaptable—or comply with the four As. This right is provided for by the South African Constitution and numerous policies. Yet it remains illusory for thousands of South Africans. Against this backdrop, this article seeks to clarify indicators to monitor the implementation of this right. To this end, unpacking the South African jurisprudence on the right to basic education, it relies on the structural-process-outcome indicators model to unveil what needs to be done to secure a tangible enjoyment of the right to basic education. Based on this approach, it finds that the right to basic education is multidimensional and that its constitutive elements include immediate and non-discriminatory access to school buildings; infrastructure; the right to teachers and non-educational staff; the right to enjoy religion, language, and culture; as well as free transport for learners living far from the school. Ultimately, in light of the South African jurisprudence, the structural-process-outcome indicators explain what is effectively expected to operationalise the four As. Lessons gleaned from this approach will enable all stakeholders in South Africa and other parts of Africa to advance the right to basic education.

Despite what is often said to be progressive constitutional and labour legislation in South Africa, inequality between employees who are affiliated with trade unions (especially registered and representative unions) and those who are not remains. While trade union density (particularly in the private sector) and collective bargaining coverage have declined in South Africa and many countries worldwide, this form of inequality continues to be passed over by the Labour Relations Act 66 of 1995. This article considers this form of inequality, with specific reference to the LRA’s approach to employees’ representation in the context of collective bargaining. If the imperatives of decent work and substantive equality are to be achieved, reform is desperately needed. In support of these arguments and in search of an apposite approach to reform premised on equality, the meaning of substantive equality in South Africa is considered. While dignity is found to be paramount in South African equality jurisprudence and judicial decisions, a more holistic and encompassing approach to substantive equality than dignity alone is needed to respond to the exigencies of employee representation in the context of collective bargaining. Catherine Albertyn and Sandra Fredman’s multidimensional framework for substantive equality is proposed as the most fitting model for this context, and it is applied to bargaining representation under the Labour Relations Act. Broad recommendations for change are then suggested. In conclusion, it is contended that the elements of substantive equality as outlined by Albertyn and Fredman provide a useful framework from which to recast and align the Act’s model of employee bargaining representation with both the pillars of decent work and its transformative role.

The right to food in South African jurisprudence has remained underdeveloped and the right to food is often vindicated through other means and the protection of other, related rights. The modern development of class actions in South Africa is implicitly intertwined with the infringement of citizens’ right to access sufficient food. The first class actions initiated in South Africa involved the food industry and affordability of the most staple food, bread. Since then, a more recent class action has been filed against a food manufacturer for selling unsafe food to consumers. In addition to developing the jurisprudence on class actions in South Africa, previous and ongoing class actions involving food companies offer an opportunity to indirectly vindicate South Africans’ rights to access to sufficient food under s 27(1)(b) of the Constitution of the Republic of South Africa, 1996. This paper will examine the effectiveness of and manner in which class actions can be utilised to protect the right to food. We will analyse the manner in which the right to food has functioned in existing class actions relating to national legislation, like the Consumer Protection Act and the Competition Act and what future there is for the right in food-based class actions.

South African regulation of online casinos licensed in a foreign jurisdiction

This chapter examines the ability of the South African Constitutional Court to apply economic and social rights (ESR) and whether the constitutionalization of ESR represents a mechanism capable of entrenching a substantive or ‘thick’ conception of the rule of law. The chapter considers ‘transformative constitutionalism’ and its ability to fulfil the ambitions of setting out to establish a society based on social justice and fundamental human rights. The South African jurisprudence after the constitutionalization of human rights, in particular ESR, has been praised by the international community. Nevertheless, the central tenets of the chapter are two cautionary findings. First, the analysis cautions against using constitutional change alone to enhance the rule of law after conflict or oppressive rule. Although constitutional adjudication in South Africa has had positive outcomes, modifying the place accorded to international law in the domestic legal system is largely insufficient for the realization of ESR and the ‘thick’ conception of the rule of law envisioned by the drafters of the 1996 Constitution. Second, the chapter finds that a domestic belief in the relevance of international and national legal norms was decisive in the South African experience. The constitutional empowerment of domestic courts to apply international legal principles would not, by itself, explain the practice of national courts insisting on the implementation of rights recognized in international law. Moreover, a number of unique factors related to the actors and process leading to the constitutional transformation in South Africa contribute to explain the remarkable transition towards an international law-friendly constitution. While the empowerment of domestic courts in South Africa provides lessons for other states, those lessons are primarily ones regarding limitations, complexities, and context-specific issues that arise in the empowerment of domestic courts to apply international legal principles in situations of transition.

Drawing on both legal and political sources, this article scrutinises the policy of cadre deployment that the African National Congress (ANC), the ruling party in South Africa, has implemented, and continues to apply. The analysis begins by recalling and commenting on the only reported judgment in South African jurisprudence that dealt with the political influencing of municipalities' exercise of their public power to make appointments, namely, Mlokoti v Amathole District Municipality & another 2009 (6) SA 354 (ECD). What the Mlokoti case has confirmed is that the legal foundation for the exercise of public power is found in the Constitution and its enabling legislation, and not in party political policy, such as the ongoing practice of cadre deployment. In an investigation of cadre deployment, the article then demonstrates that this ANC policy, particularly judging by its stated purpose, is incompatible with the constitutional State and, instead, enables the rise of the shadow State. Unsurprisingly, therefore, political commentators increasingly observe that, apart from the revelations at the Zondo Commission of Inquiry, State capture in South Africa in fact commenced when the ANC assumed political power in pursuit of the National Democratic Revolution. It is argued that the pursuit of a National Democratic Revolution in South Africa is directly at odds with the vision and goals of the 1994 constitutional pact. Convening a bipartisan national convention on philosophical and other approaches to the fight against corruption may offer a solution. Here, a starting point would be to reconsider the country's anti-corruption strategies to pay proper attention to the ethical causes of this scourge.

This article critically examines the constitutional tension between the right to freedom of expression and the rights to equality and dignity in adjudicating racially charged political speech in South Africa. It focuses on the controversial chant "Kill the Boer" and interrogates how courts navigate the competing imperatives of protecting political expression while upholding non-racialism, equality, and human dignity. Through doctrinal and comparative analysis, including cases from Kenya and Rwanda, the article identifies inconsistencies in South African jurisprudence, particularly regarding symbolic speech and its real-world impact on minority communities. It highlights the judiciary's tendency to underplay psychological and symbolic harm, which undermines public trust and the transformative vision of the Constitution. The article further addresses the study's limitations, such as the limited engagement with primary data and potential judicial biases. It proposes reforms that prioritise restorative constitutionalism and a more context-sensitive approach to adjudicating hate speech, considering the feasibility of such measures within South Africa’s resource-constrained legal framework. The study contributes to broader debates on how transitional democracies can address historical injustice without enabling new forms of exclusion or harm.

This article describes the development and current status of the political question doctrine theme in South African jurisprudence. It does this through a comparative discussion of the application of this doctrine in the United States. The purpose of this comparative examination is twofold: the first is to gain insight into the origins, trends and early application of the political question doctrine. The second is to gain insight into the challenges and best practices in relation to the application of the political question doctrine elsewhere. The paper argues that while the political question doctrine theme exists in South African jurisprudence, this has not matured into a clear and transparent doctrine. It calls for the development of a clear doctrine for South Africa and offers some recommendations.

This article discusses the inherent propensity of a Constitutional State to degenerate into a legalistic society where jurisprudence exercises the same kind of power that religion exercised in medieval theocratic societies. The first part of the article identifies such developments in South African Constitutional jurisprudence. Examples are cited where Courts have imposed a liberal understanding of rights on society, imposed values on South African society that are alien to most South Africans, and relegated religion to the private sphere of life. In the second part of the article some suggestions are made for ways in which this can be prevented. The article concludes that measures must be introduced to restrain the power of courts. Conversely it is important that Christian theologians and philosophers translate Christian values to the public realm in a juridical applicable way.

In terms of delictual liability, the term generally refers to the defendant's conduct, whereas contributory refers to the plaintiff's conduct. Contributory intent is a form of contributory and may apply as a defence limiting delictual liability within the ambit of the Apportionment of Damages Act 34 of 1956 (hereinafter referred to as the Act). In terms of the Act, the extent of the plaintiff's as against the defendant's fault is taken into account, resulting (in certain instances) in a reduction of the award to the plaintiff. The Act currently regulates the apportionment of damages based on fault in South Africa. The Act does not specifically provide for conduct performed intentionally, and this also seems to be the situation in quite a few foreign jurisdictions. Initially our courts applied the Act to instances of contributory negligence (the other form of contributory fault) only, but in recent times they have applied it to instances of contributory intent. This change has occurred as a result of practical situations that arose unexpectedly, where the courts had in the interest of serving justice to deal with cases of intentional conduct on the part of the plaintiff and the defendant. The effect of contributory intent as a defence in terms of delictual liability is uncertain and contentious not only in South Africa but in foreign jurisdictions as well. The South African Law Reform Commission undertook a review of the Act and published a report on its findings. The Commission acknowledged that since the Act was passed there have been major developments in the law of delict which the Act has been unable to accommodate, resulting in anomalies in this area of the law. It acknowledged that it is unsatisfactory for our courts to go beyond the parameters of the Act in order to reach a just and equitable result when dealing with the apportionment of liability. The Apportionment of Loss Bill 2003 (hereinafter referred as the Bill) has been drafted to replace the current Act but has unfortunately not been promulgated. Over ten years have passed since it was drafted. In respect of the Bill, contributory intent as a defence limiting delictual liability would be recognised. It is hoped that this contribution will bring about a renewed interest in this forgotten but valuable Bill.