Accountability of multinational corporations for human rights violations under international law

JurisprudenceLL. D

A "Parenting Licence" Granted by One’s Existing Children? Critical Analysis of the Judgment in Ex Parte JCR 2022 5 SA 202 (GP)

In Ex parte JCR 2022 5 SA 202 (GP) the Pretoria High Court per Neukircher J seeks to introduce new requirements for all surrogacy agreements in South African law. The court considered the psychological impact of surrogacy on the children of both the surrogate parents and the commissioning parents and the need to put in place procedures ‘for preparing them for this process [of not bringing the surrogate baby home]’ or ‘for a new addition to their family’, respectively. The court ordered the mandatory psychological assessment of the existing children of the surrogate parents and commissioning parents. A report emanating from such an assessment would ostensibly assist the court in determining the best interests of the existing children of the parties to the agreement. We argue that the psychological evaluation of the existing children of the parties to a surrogate motherhood agreement fundamentally upsets the balance between the interests of the parties involved in the surrogacy process. In fact, it shifts the balance of power almost entirely into the hands of the existing children, such that they may be said to decide whether their parents allowed to have any more children. We argue that the court’s interpretation that such assessments would be in the best interests of existing children, is based on a fundamental misunderstanding of the court’s duty in this regard. The new assessment requirement is more likely to undermine these children’s interests, to violate the commissioning parents’ constitutional rights to dignity and equality, and their rights to reproductive autonomy, privacy, and access to reproductive healthcare

ASSAf consensus study on the ethical, legal and social implications of genetics and genomics in South Africa

CITATION: Pepper, M. S., et al. 2018. ASSAf consensus study on the ethical, legal and social implications of genetics and genomics in South Africa. South African Journal of Science, 114(11/12), Art. #a0302, doi:10.17159/sajs.2018/a0302.The original publication is available at http://sajs.co.zaNo abstract available.https://www.sajs.co.za/article/view/5822Publisher's versio

DE-LINKING UBUNTU: TOWARDS A UNIQUE SOUTH AFRICAN JURISPRUDENCE

The adoption in 1993 of the interim Constitution of the Republic of South Africa Act (200 of 1993) as the supreme law of the Republic marked a watershed moment in the history of South Africa. It was a moment of transition for which the interim Constitution was to serve as a bridge. In the words of the post-amble: “This Constitution provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.” (Under the section titled: “National Unity and Reconciliation”.) Given the volatile political context within which South Africa’s transition was negotiated, the drafters of the Constitution saw fit to append a postamble in which they called for the “need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation” (under the section titled: “National Unity and Reconciliation”). For a country where the traditional legal discourse has been the domain of Western liberal values, the inclusion of an African value of ubuntu in the Constitution was in itself “a historic bridge”. In the words ofEtienne Mureinik, if this bridge is to “span the open sewer of violent and contentious transition” those who are entrusted with its upkeep need to know where the bridge is from and where it is leading to. For Mureinik, the interim Constitution is a bridge away from a culture of authority to a culture of justification where every exercise of power must be justified

THE COST OF INDIFFERENCE IN A MEDICAL NEGLIGENCE CASE: Lushaba v MEC for Health, Gauteng (17077/2012 [2014] ZAGPJHC 407 (16 October 2014))

The much-debated diagnostic report, the National Development Plan 2030 (NDP), paints a worrying picture about the state of the health system in South Africa. The NDP simply states that, “At institutional level, healthcare management is in crisis” (Republic of South Africa 2012, National Development Plan of 2030: 52). One of the remedial measures proposed by the NDP is the introduction of the National Health Insurance in South Africa (Republic of South Africa 2012, National Development Plan of 2030: 52). It is hoped that the National Health Insurance “will ensure that everyone has access to appropriate, efficient and quality health services” (Republic of South Africa 2012, National Development Plan of 2030: 4).The Constitution of the Republic of South Africa, 1996 sets the benchmark and the ideals towards which public servants must strive as they deliver the much-needed services to the general populace (s 195(1)(a)−(i)). Among others, public servants must promote and maintain a high standard of professional ethics (s 195(1)(a)). Further, the Batho Pele Principles require it of government institutions to, inter alia communicate the level and quality of service, which the public must expect from them (Batho Pele Principles Principle 2). It is therefore not misguided to say that generally, people are aware of the standard of service they should expect from state institutions. As a matter of fact, people have gone to the courts of law to hold state institutions accountable. In this regard the medical fraternity has in the recent past witnessed an upsurge of court cases of negligence against the health department. This rise in litigation has led to a crisis of another kind. According to the Minister of Health, healthcare in South Africa is facing a crisis because some medical practitioners, particularly gynaecologists and obstetricians, have opted not to perform operations for fear of lawsuits.The concerns of the Minister notwithstanding, the daily experiences of people point to the fact that despite the lofty ideals in the Constitution and the Batho Pele Principles, the general public continues to receive sub-standard service from public institutions, especially from public hospitals. The case of Lushaba v MEC for Health, Gauteng (The original case) provides a good illustration of a nation, which is in a state of paralysis ethically. The case paints a picture of “state employees who could not be bothered to do their work” (The rule nisi case par 87). What is even more ominous is the observation by Robinson JA that shaming such public officials no longer has any effect (The rule nisi case par 90).The Lushaba case has all the hallmarks of the cost of indifference on the ethical values of a nation. Axiomatically, such a cost cannot only be measured in Rands and cents. Later in the discussion, we hope to make it clear that indifference impacts on the valuable time of the court and the plaintiff, the reputation of the various institutions involved, quality of life of the child born with cerebral palsy as a result of indifference, the dignity of both the mother and her son and, of course, the taxpayers’ money. These factors combined provide a good basis for reflection on the cost of indifference in this case. To provide some background, the facts of the Lushaba case are discussed briefly, after which the indifference of every role player in the events leading up to the two court cases are highlighted. In the process, our discussion also makes mention of the trajectory that the case followed from the court a quo all the way to the Constitutional Court (MEC for Health, Gauteng v Lushaba [2015] ZACC 16). In the Constitutional Court’s judgment, even the High Court judge came under scrutiny

An optimistic vision for biosciences in South Africa : reply to Thaldar et al. (2019)

Our reply to Thaldar et al.’s response to the ASSAf report on human genetics and genomics focuses on two elements of the Report which they highlight, namely ubuntu and sovereignty. The lack of engagement with other issues raised by Thaldar et al. does not acknowledge agreement with those views.https://www.sajs.co.zapm2020Immunolog

ASSAf consensus study on the ethical, legal and social implications of genetics and genomics in South Africa

South Africa is home to one of the most genetically diverse populations in the world, which, combined with its high disease burden and high-quality infrastructure, makes our country a prime location for conducting genetics and genomics research. South African genomes are therefore highly sought after by the global research community. Increasingly, a range of technological advances, including the possibility of ‘reading’ whole genomes or exomes through next-generation sequencing, allows access to detailed molecular information from which information about health and disease can be inferred. This reading may also occur when information is collected for different purposes, which raises questions about the ethics of inferring information about health and disease in these situations. Against this backdrop of technological and ethical complexity, there is an urgent need to understand and protect the interests of patients and individuals who participate in research in the fields of genetics and genomics.This consensus study was undertaken under the auspices of the Academy of Science of South Africa.The Department of Science and Technologyhttp://www.sajs.co.zaam2019ImmunologyJurisprudenc

An optimistic vision for biosciences in South Africa: Reply to Thaldar et al. (2019)

Our reply to Thaldar et al.’s response to the ASSAf report on human genetics and genomics focuses on two elements of the Report which they highlight, namely ubuntu and sovereignty. The lack of engagement with other issues raised by Thaldar et al. does not acknowledge agreement with those views.https://www.sajs.co.zapm2020Immunolog