Why do I have to consider Health Law?

Learning Outcomes:
INTRODUCTION TO LAW: CONSIDER THE FOLLOWING:

HEALTH AND THE LAW 01 Define the concept of ‘the law’

Relationship between law, bioethics and human rights .
• When should it be decided to withdraw efforts to save a patient’s life and
give only comfort care?
Mr Siraaj Khan
• Should an expectant mother be restrained from taking drugs / smoking /
LLB, LLM – Medical Law (UKZN) 02 Understand the divisions of South African Law
consuming alcohol?
Attorney of the High Court of South Africa Public Law vs Private Law, Criminal Case vs Civil Case
Lecturer, Steve Biko Centre for Bioethics • Should a physician respect a patient’s confidentiality if this would put his
Faculty of Health Sciences Understand the sources of South African Law partner’s life at risk?
03
University of Witwatersrand Legislation, Case law, Common law, Customary law, African
Indigenous law.
• Who should receive the life-saving organ transplant?
18 March 2025 – GEMP 1
04 Developing Legal Skills • Should we be allowed to edit genes?
Email: siraaj.khan@wits.ac.za Interpreting an Act and Reading a Case Citation
Office 311, 3rd Floor PVT Building

Meet Lucy… Meet Lucas…

“ “
• Arrested: significant reason to believe he was involved with an
• She is 13 years of age and 8 weeks pregnant. armed robbery
• She recently found out that she is HIV-positive. • Eyewitness: witnesses Lucas being shot in his arm at the scene
• Her mother is a single parent who takes care of her and her 3 of the crime.
siblings. • Lucas fled the scene of the crime before the police arrive.
• She is concerned about the following: • Claimed the wounds were due to the nature of his job on
1. Her mom cannot afford the medication to treat her HIV-infection construction sites.
2. She wants to get an abortion without her mother knowing • X-rays: revealed a clearly visible bullet lodged in his arm
• She visits the local clinic and is advised that she is not eligible • Lucas claimed it was an old bullet wound when he was shot duri
for free medication since her HIV-infection is still in the early ng a hijacking. (after investigation – no proof of the hijacking

•
stages.

can request an abortion without her mother’s knowledge.

“
After this conversation she loses the nerve to ask whether she •

•
was found)
“
Surgeon: confirmed the bullet can be removed easily and safely
under general anaesthetic
Lucas refuses that the bullet be removed on the grounds of his
constitutional rights

Case Studies
Case Study #1 Case Study #2

• Mr H has been under the care of Dr G, a urologist for the past seven
months. During this period, Mr H has been consistently non-compliant

Case Study #4 – Mr H with post-operative instructions and has failed to attend the necessary
follow-up appointments. He has also been aggressive and verbally
abusive towards Dr G on several occasions and has an outstanding
balance for his surgical procedures which he refuses to honour. Dr G
has made several attempts to address these issues in a compassionate
and respectful manner and has emphasized the importance of
compliance with medical instructions. Mr H’s behaviour however, Is the law applicable in the cases?
remains unchanged.
Are the cases private or public law ?
• The doctor-patient relationship deteriorates to the point where Dr G Are the cases civil or criminal law?
believes it would be in the best interest of the patient to terminate the
relationship and refer Mr H to a colleague.

• Dr G is however uncertain whether there is an ethical and legal

obligation to inform her colleague about Ms H’s abusive behaviour,
Define: ‘the law’
general non-compliance with medical recommendations and unpaid
medical bills.
 Public Law vs Private Law
WHAT IS “THE LAW”
LAW SHOULD BE OBEYED BY ALL Do you think public law is
LAW GOVERNS HUMAN
BEHAVIOUR/CONDUCT
OF SOCIETY applicable to health care?
Examples? Acts?

It can be considered as the system of rules which seek to regulate or

control the behaviour of citizens in a politically organised society by goun
prescribing what is acceptable conduct. By ignoring or disobeying the
law we may be prosecuted and punished. The Divisions of South STATE

WHY IS THE LAW IMPORTANT

FOR ANYONE INVOLVED IN
African Law UNEQUAL RELATIONSHIP
BETWEEN STATE AND SUBJECT
THE LAW IS ENFORCED BY SUBJECT
THE HEALTH CARE

ai
STATE ORGANS ENVIRONMENT?
persons
state
y

Public Law vs Private Law Classification of the Law Classification of the Law
NATIONAL LAW NATIONAL LAW

PERSON PERSON Which of these

branches have
Substantive Law Adjectival/Procedural Law Law of Patrimony an influence on
Public Law Private Law • Law of Criminal Procedure Law of obligations health?
• Law of Civil Procedure
EQUAL RELATIONSHIP
Constitutional Law
mmaariii.it
Law of Patrimony
• Law of Evidence
Property Law

iiiiii a
Administrative Law Law of Persons • Legal Interpretation. Law of Succession
BETWEEN SUBJECT iwnensommeain.imita.es
AND SUBJECT Criminal Law Family Law
Add Contents Title Law of Add
Intellectual
ContentsProperty
Title
peamcrimesimnimmam.name mmnaniinuntance
Law of Personality
Law of Contract
Indigenous Law
Law of Delict
meme

iyiig.ie

Criminal case vs Civil case Criminal case vs Civil case

WHEN? An individual’s rights have been infringed by another
WHEN? A wrong against the state has been committed CIVIL CLAIMS
individual / parties cannot come to an agreement

PURPOSE? The STATE wants to punish / prosecute or charge the PURPOSE? To claim damages / compensation for injuries /
ACCUSED damages suffered

OUTCOME? ACCUSED is found guilty or not guilty OUTCOME? Remedies are granted / compensation is provided
OR
PROOF? Guilty beyond a reasonable doubt PROOF? On a balance of probabilities (the facts given should be
more true than not true)
WHEN WILL SOMEONE BE
GUILTY OF COMMITTING A
CRIME ITO HEALTH CARE?
*OFFER and ACCEPTANCE*
A CIVIL WRONG IS A WRONG AGAINST AN INDIVIDUAL FOR WHICH THE
A CRIME IS A WRONG AGAINST THE STATE FOR WHICH THE WRONGDOER WRONGDOER MUST PAY COMPENSATION TO THE INJURED PERSON
IS PUNISHED BY THE STATE
CONTRACT DELICT

A Delict is:
Consensus: the parties’ intent in their minds must match (or at least appear to matc
h) on all material aspects of their agreement;
an ACT
Lucy’s Case:
Capacity: the parties must have the necessary legal capacity to contract;
Formalities: wherein exceptional cases, require that the agreement should be in a that is WRONGFUL Will private or public law be applicable?
certain format (for example, in writing and signed), these formalities must be respec Which branches of law will apply?
2 ted. 2 with FAULT* Civil or criminal case?
Legality: the agreement must be lawful – in other words, it cannot be prohibited by l
aw or common law;
and CAUSATION
Possibility: the undertaken commitments must be performed, and have the capacit
y to be performed when the agreement is entered
resulting in DAMAGES

Lucas’ Case:
Where will you start to assist Lucy
Will private or public law be applicable?
Which branches of law will apply? and Lucas with their legal situations
Civil or criminal case? ?
The Sources of South African Law

Sources of South African Law Primary Sources of Law Secondary Sources of Law
Primary and Secondary Sources Where do I find the law? Where do I find the law?

All legal research starts with primary sources

Primary sources are binding
Common Law
The Constitution of the Foreign Law
Primary Sources 01 Republic of South Africa, 04 Not made by a law-making body
Originated from English, Roman and
01 The laws of other countries for instance
the UK, New Zealand, India etc
1996 Roman-Dutch Law *Do not confuse with international law

Legislation - Statutes Customary Law Academic Textbooks

02 Written laws
05 Written and unwritten law which
develops from customs of a
02
community

Case Law African Indigenous Law Academic Legal Articles

Secondary Sources
03 The court makes a decision on a
dispute
06 Written and unwritten law which
develops from customs of an African
03
Secondary sources are merely persuasive community
Secondary sources are not binding

DO YOU THINK ALL SOUTH AFRICAN LAW IS WRITTEN DOWN?

 Primary Sources: Legislation Hierarchy of SA law The Constitution
FIRST STEP: Seek what legislation is applicable to the problem you are WHERE DO YOU FIND THE CONSTITUTION?
dealing with
The Constitution WHY DO WE HAVE A CONSTITUTION?
The role of the Constitution
WHAT IS CONTAINED IN THE CONSTITUTION?
Statutes/Acts WHY IS THE CONSTITUTION SO IMPORTANT?
All law, and not only legislation is always
subject to the Constitution
(legislation) WHAT IS THE BILL OF RIGHTS?

The Constitution is the Supreme CAN THE CONSTITUTION ASSIST LUCY AND LUCAS?
(highest) law of the land and no other
law may be in conflict with it Common Law
KEY LEGISLATION:
National Health Act 61 of 2003; Children’s Act 38
of 2005; Mental Health Act 17 of 2002; Medicines Customary
and Related Substances Control Act 101 of 1965; Law
Choice on Termination of Pregnancy Act 92 of
1996

Primary Sources: Case Law Hierarchy of Courts

The Constitution: THE BILL OF RIGHTS and Health SECOND STEP: If there is no legislation on a specific topic. Seek what case law is
IT IS BOUND BY ITS OWN PREVIOUS
JUDGMENTS UNLESS THEY ARE
http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-02.pdf applicable to the problem you are dealing with
THE HIGHEST COURT IN THE WRONG
LAND THE JUDGMENTS OF THIS COURT
RIGHTS PARTICULARLY IMPORTANT FOR THE HEALTH PROFESSION AND PATIENTS: BINDS ALL SUBORDINTE COURTS IN
Right to be treated equally and be free from discrimination (s9) The role of the the Courts (Judiciary) THE COUNTRY
Right to respect and protection of dignity (s10)
Right to life (s11) BOUND BY THE
Right to freedom and security of the person (s12) JUDGMENTS OF THE
Right to privacy (s14) S.C.A
The Courts are institutions that apply the IF THERE AREN’T ANY
Right to freedom of conscience, religion, thought, belief and opinion (s15)
Right to freedom of speech, expression, artistic creativity and scientific research (s16)
law on a daily basis. When people cannot 02 – BOUND BY THEIR
solve their problems themselves or when OWN PREVIOUS
Right of access to information (s32) JUDGMENTS UNLESS
they are suspected of committing a crime,
Right to be treated fairly by administrative bodies and to be given reasons (s33) THEY ARE WRONG
such cases may end up in court,
Right to fair labour practices (s23) THE HIGH COURT IN A
Right to a healthy environment (s24) SPECIFIC PROVINCE
The court will then ascertain the law, IS NOT BOUND BY THE
Right of access to health care services (s27)
Right of children to security, basic nutrition and basic health care services and social services
apply it to the case and give judgment DECISIONS OF
ANOTHER PROVINCE
(s28)
– ONLY PERSUASIVE
And many others which are important: education, language, culture etc VALUE
A limitation of rights clause can limit a right in terms of other law that is generally applicable to everyone,
BOUND BY THE JUDGMENTS OF THE S.C.A
as long as the limitation is reasonable, justifiable and based on human dignity, equality and freedom, taking
IF THERE AREN’T ANY BOUND BY THE
into account all relevant factors (s36) DECISIONS OF THE HC IN THEIR PROVINCE

SECTION 2 (1) (b) (iii)

How to ‘read’ legislation: Simple Portfolio Designed
How to ‘apply’ legislation:
Simple Portfolio Designed

SECTION
WILL LUCY BE ALLOWED TO
GET AN ABORTION
SUB-SECTION WITHOUT HER MOTHER’S
CONSENT?

Developing Legal Skills PARAGRAPH

SUB-PARAGRAPH
 ‘Reading’ a case citation: WHAT ARE “HUMAN RIGHTS?”
Naude & Another v Fraser 1998 (4) SA 539 (SCA)
HUMAN RIGHTS PRIMARILY PROTECT INDIVIDUALS FROM
STATE POWER

PARTIES IN THE CASE EVERY PERSON IS BORN WITH THESE RIGHTS

THREE
GENERATIONS
YEAR CASE WAS REPORTED THEY ENSURE THAT ALL PEOPLE HAVE A BASIC CLAIM
THAT THE GOVERNMENT SHOULD TREAT THEM WITH
OF
THE VOLUME WHERE YOU FIND THE CASE RESPECT AND CONCERN HUMAN
Minister of Health and Others RIGHTS
v Treatment Action Campaign
SA LAW REPORTS
(TAC) and Others 2002 5 SA
721 (CC)

WILL YOU BE ABLE TO THE PAGE NUMBER

FIND THIS CASE?
COURT WHICH HEARD THE MATTER

GENERATION OF HUMAN RIGHTS:FIRST CATEGORY GENERATION OF HUMAN RIGHTS:SECOND CATEGORY GENERATION OF HUMAN RIGHTS:THIRD CATEGORY
HUMAN RIGHTS ARE DIVIDED INTO THREE CATEGORIES OR GENERATIONS HUMAN RIGHTS ARE DIVIDED INTO THREE CATEGORIES OR GENERATIONS HUMAN RIGHTS ARE DIVIDED INTO THREE CATEGORIES OR GENERATIONS

FIRST GENERATION RIGHTS – POLITICAL AND CIVIL RIGHTS • SECOND GENERATION RIGHTS – SOCIO-ECONOMIC RIGHTS
• THIRD GENERATION RIGHTS – CULTURAL RIGHTS
PROVIDE A SHIELD FOR THE INDIVIDUAL TO PROTECT HIMSELF AGAINST STATE AUTHORITY THESE RIGHTS DO NOT REQUIRE THE STATE TO REFRAIN FROM DOING SOMETHING SPECIFIC, BUT
AND GUARANTEE FREEDOM FROM UNLAWFUL INTERFERENCE BY THE STATE TO TAKE POSITIVE ACTION. THESE RIGHTS DO NOT GIVE THE INDIVIDUAL A SHIELD, BUT RATHER A
THESE RIGHTS PERTAIN TO GROUPS
SWORD AGAINST THE STATE

• OPERATE ON VERTICAL LEVEL BETWEEN THE STATE AND THE INDIVIDUAL

• SOCIO-ECONOMIC RESOURCES ARE CONTROLLED BY THE STATE • AKA “GREEN RIGHTS”
• AKA : “BLUE RIGHTS”
• AKA “RED RIGHTS” • EXAMPLES: RIGHT TO A HEALTHY LIVING ENVIRONMENT
• EXAMPLES: RIGHT TO FREEDOM OF SPEECH, OF ASSOCIATION AND RELIGION.
RIGHT TO BE TREATED EQUALLY, RIGHT TO LIFE. RIGHT TO HUMAN DIGNITY • EXAMPLES: RIGHT TO MEDICAL CARE, HOUSING, EDUCATION

• HINT: CAN YOU ATTACH A MONETARY VALUE TO THE RIGHTS ABOVE? • HINT: CAN YOU ATTACH A MONETARY VALUE TO THE RIGHTS ABOVE?

The Doctor-Patient Relationship Case Studies BASIC OVERVIEW OF HOW CIVIL LITIGATION IS CONDUCTED IN
The nature of the relationship between a healthcare practitioner / hospital and a patient can be based on a contract or delict or both. Are you able to apply the the introduction to law to the case studies? SOUTH AFRICA

Law Law
DUTIES TOWARDS THE PATIENT’S DUTIES Is the law, bioethics and Can the law assist Lucy?
PATIENT • Make himself available human rights applicable
• Inform the patient of for treatment; to the case?.
the treatment to be • Comply with the
Divisions of Law Divisions of Law
given instructions of the
• Receive consent healthcare practitioner; Is civil or criminal case Will Lucy’s scenario be THREE STAGES:
• Pay the medical bill applicable? . regarded as public or
• Exercise the patient’s
once provided private law?
instructions honestly,
faithfully and with due Sources of Law Sources of Law
• PRE TRIAL
care; What sources of law will What sources of law will
• Complete the
treatment once
you consult to assist Lucas?. you consult to assist Lucy? • TRIAL
commenced;
• Respect confidentiality Generations of HR Divisions of Law
Which generation of human Which divisions of law can • POST TRIAL
rights is applicable to Lucas? you identify in her case?
 PROCEDURE AT COURT
PRE TRIAL ACTION OR APPLICATION • Plaintiff to commence:
Action Application
Parties referred to as plaintiff and defendant Parties referred to as applicant and respondent
• CAUSE OF ACTION • He is dominis litis
An action is based on a real dispute of fact An application is based on a factual dispute of such a
nature that it may be easily dealt with on affidavit or on • He who alleges must prove
• LOCUS STANDI paper. An application may also be used for disputes of law
Commences with the issuing of summons by the plaintiff Commences with the issuing of a notice of motion and
supporting affidavit by the applicant • Opening Statements from both Plaintiff and Defendant
• JURISDICTION Further pleadings are exchanged by parties, namely: Further affidavits are exchanged, namely:
-Defendant’s plea and counterclaim -the opposing affidavit
-Plaintiff’s replication to defendant’s plea -the replying affidavit • Plaintiff to call 1st witness:
-plaintiff’s plea to defendant’s counterclaim

• DEMAND? After the exchange of pleadings – preparation for trial No written preparation for trial stage
• Examination in chief  Cross Examination by Defence 
begins.
Re examination
The action procedure ends in the trial court, where mainly The motion procedure ends in motion court. In principle,
oral evidence by the parties and their witnesses is no oral evidence is presented and the parties do not testify. • Same procedure for all witnesses  then closes their case
presented Case is argued by legal representatives on the papers
before the Court
• Options available to Defence..
• Calls witnesses, same procedure as above.

AFTER JUDGMENT / RULING

- Appeal / Review
- Writ/Warrant of Execution
- S65 process

Thank you
siraaj.khan@wits.ac.za
Office 311, 3rd Floor Phillip V Tobias Building