The South African Medico Legal Society

Dear Colleagues and Friends

The South African Medico Legal Society is alive and well. At the Exco meeting of 12/07/2002 an agenda of 14 points had to be worked through. The growth of our Society, promising at the beginning of the year, has sustained up to now. We as Exco are quite sure that the upcoming seminar of 05 October 2002 will keep us growing, drawing members out of all corners of our Medico Legal working field.

The seminar the Exco is planning on 05 OCTOBER 2002 about EXPERT WITNESS EXPERT OPINION is indeed something to look forward to. The venue is again the Protea Midrand Hotel. The event starts at 09:30 and will continue till about 13:00. The seminar will be proceeded by a general members meeting for about 30 minutes regarding the proposals and admissions of new members and other important matters.

The speakers that have agreed to address us at the seminar will be two eminent medical and three eminent legal experts. The two medical experts are Prof Vivian Fritz, child neurologist from Johannesburg, and Prof Ren van Rooyen, physician of Pretoria. The three legal experts will be Prof Pieter Carstens, head of the Department of Criminal Law of the University of Pretoria, Senior Advocate Dawie Fourie and one member of the judiciary still to be approached. Such an important subject with such eminent speakers can only mean a meeting of high standards and truly worthwhile to attend.

For interest sake I can just mention that at the seminar of 11 May 2002 about Third Party Matters members from Durban, Cape Town, Bloemfontein and other faraway places attended the meeting.

The cost to attend the seminar is R 450,00 for non-members, but FREE for members as their membership covers their costs. Our medical colleagues can earn 4 CPD points. The CPD certificates for the seminar of 11 May 2002 have already been sent out. Please notify our office if you have not received your certificate.

An interesting social happening at the seminar will be issuing of membership ties for men and chiffon scarves for ladies. The final product, designed by Cravateur, will be put on our website www.samls.co.za together with our logo and its descriptive explanation. One tie or scarf will be paid out of the membership fee, but others can be bought at cost.

Our website is developing and expanding every month. Interesting links are created to associated organizations. Robert Koch, well-known actuary from Cape Town benevolently agreed to his newsletters being placed on our website. We have created an extra page for that purpose and the last 6 newsletters are available. Please remember that our own newsletters are also stored on our website for easy accessibility and reference.

The details of the certificate course in Medicine and Law, as offered by a joint venture between Unisa and the University of Pretoria and endorsed by our Society, is available on our website as well. At a later stage a bibliography about authoritive literature on Medico Legal matters, as well as a collections of important medico-legal court cases will be made available.

The appointed committee about the format and remuneration of Medico Legal reports have started its work. Every Society member is encouraged to contribute in that regard. The cost consultant to participate beside Mr Joubert of the Road Accident will be Helen Höman. The Exco already wants to advise members of our Society to start using an explanation of the particulars of the report’s fee on the bill that is presented. Time used, covering four specific activities should be mentioned. These four activities are:

1. Consultation and examination

2. Reading and examining of documents

3. Research and study

4. Preparation of report

The total amount of time spent should be calculated against a certain tariff per hour. Dr. Marus, neurosurgeon and member of our Society, graciously pointed out that the 0144 tariff against the SAMA scales can be used. Final recommendations will however be reported back after the full meeting of the committee on 24 August 2002. Committee members should take note of this date. The venue will be the Protea Midrand Hotel lounge at 09:00.

An interesting (but expensive) Medico Legal Symposium will be held at the Holiday Inn, Johannesburg International Airport on 23, 24 and 25 July 2002. Your president, as well as Prof Pieter Carstens is invited to the impressive line-up of speakers. Organised by the Institute for International Research this seminar promises to be very interesting and worthwhile.

As our Medico Legal Society is not only about Third Party and Medico-legal reports, I want for interest sake to mention to you to the Nasciturus Rule.

As common law and statutes about human life is also part of the Medico-Legal scene worldwide and as the Human Rights Chapter of our new Constitution is of real importance to Medico-Legal practice we should start broadening our horizons concerning that matter.

As unborn life, according the new abortion legislation seems to have no rights, an old Roman and Roman-Dutch rule still applies. This Rule is called the Nasciturus Rule and implies that the unborn child is considered to be born as long as it is to its advantage. This situation goes back to the conception of the child. As a subject of law in legal traffic, rights and obligations, as well as competencies only come into being after birth, except for this rule. Its application has been through the centuries in the Law of Succession, the Law of Delict and several other fields of law.

Two essential happenings must have taken place before a child is considered to be born in law. Firstly the child must be separated by expulsion of the mother and secondly the child must have lived independently, if only for a short moment. Breathing and viability are the most important concepts.

Interesting examples of the application of this rule in our South African Law are the court judgements in Ex Parte Boedel Steenkamp, where a procreated but unborn child was also found to be an inheritant of the estate.

In the Chrisholm case an unborn child has been given the right to claim support after the wrongful death of its father against the actual perpetrator. Even the right to claim in the event of damage by an accident, or by medication used by the mother before birth, was recognised in the well-known case of Pinchin v Santam Insurance.

The position of the positive law has been expressed in the Christian League of South African v Rall in 1981, where an unborn child has been declared not be a subject of law. The court did not support the view that an unborn child could acquire rights through a Rule of Law. In this case, and in my opinion wrongly, the court considered this rule to be a fiction.

Last but not least I want to encourage our members to stay involved in the growing phase of our Society and to contribute to this process by giving your thoughts e-mail wings!!

Your president

DR & ADV ANTON H VAN DEN BOUT

EXCO MEMBERS:- Mr Jan van Rooyen - Vice President

Dr. Dave Barnes - Secretary

Dr. Henny Pienaar – Treasurer

Prof Pieter Carstens – Member