Research Ethics Guidelines                                                            1

                                 FACULTY OF LAW

                         RESEARCH ETHICS GUIDELINES

1.   All research conducted in or under the auspices of the Law Faculty that proposes to
     involve the collection of data from or about human participants must be submitted
     for review by the Research Ethics Committee (REC), the Subcommittee of the
     Faculty Research Committee. No research may begin unless clearance has been
     granted by the REC. No retrospective ethics clearance may be granted.

2.   Some research is exempt from prior review, eg when public behaviour is observed
     and information is recorded so that participants cannot be identified directly or
     indirectly (through identifiers). Some research may be approved by expedited
     review. Expedited review means that the full review process may be circumvented
     by a shortened process so that the time from submission of the application to
     decision is shortened, eg where the research appears to expose participants to no
     risk of harm. Researchers should consult with the REC about whether expedited
     review or exemption might be possible. The final determination of exemption
     must be made by someone other than the researcher.

Terms of reference of REC

3.   The REC is appointed by the Faculty Research & Social Responsiveness
     Committee for a two-year term of office. Its task is to assess whether a research
     proposal conforms with the Faculty’s Ethics in Research Policy, and the UCT Code
     for Research Involving Human Subjects (see Research Handbook or online at

3.   The REC must copy its review report to the Director of Research in the Faculty. In
     appropriate circumstances, the REC should consult with others who are especially
     qualified to represent the views of a participant population. Members of the REC
     must not participate in the review of projects in which they are involved or have a
     conflicting interest. The number of members of the REC is four (4) and the quorum
     for review meetings is two (2) members. Members of the REC serve a two-year
     term of office, which should be renewable in accordance with the principle of

4.   The REC is authorized to review and to approve or reject, and to state conditions
     for, the conduct of the research proposed. NOTE: sometimes more than one REC
     must review research proposals. For example, if research is intended with hospital
     patients under the auspices of the Health Sciences Faculty, then the proposal must
     be submitted to that REC as well as to the REC of the Law Faculty. This is because
     the Health Sciences Faculty has primary responsibility for hospital patients
     (inpatients and outpatients). It must consider, amongst other things, whether
     particular patients (eg HIV positive patients) are over-researched, ie burdened by
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     frequent requests for research participation. Applications may be submitted
     simultaneously and should so state.

Procedural requirements

5.   Submission of the proposal must be accompanied by the completed Application for
     Ethics Clearance (obtainable from Lamize Viljoen, Room 6.28 Kramer Law
     Building, Middle Campus Tel: 021 650 3080 or email: lamize.viljoen@uct.ac.za

6.   Sometimes disbursement of funding to support research or the granting of
     permission by an authority (eg government department) is dependent upon ethics
     clearance for the proposed research. The timing of these various processes can be
     complicated which means that applications for ethics clearance must be submitted
     with such time constraints in mind.

7.   Students conduct research under the supervision of a member of the Faculty, who
     must approve the proposals before they are submitted to the REC. Students and
     staff must therefore anticipate the amount of time needed for this step to be


All research conducted in or under the auspices of the Law Faculty should strive to
conform to the principles and substantive requirements outlined below.

Collaborative partnerships – in order to minimize (perceptions of) exploitation as far as
possible, efforts should be made to develop partnerships with policy-making bodies,
communities, and other researchers. A collaborative partnership involves a sharing of
responsibility for determination of the importance of choosing to do particular research in
a particular community using a particular population; mutual respect for and
consideration of local values, customs and social practices and languages which should
be incorporated into the design and implementation of the research project as appropriate
and practicable; capacity building as appropriate and/or practicable.

Social value – the research should have social value; ie the generation of (new)
knowledge should contribute to improving social capital in general, or the well-being and
circumstances of the participant population, at the very least. That the research will not
cause harm, is not a sufficient reason to do it. The proposal should clarify who will
benefit from the research.

Scientific validity – validity of research is an ethical requirement. The data generated
should be reliable and have a high degree of validity. This requires that the research
should be planned and designed with relevant expertise, so that the data generated can
answer, address or speak to the research problem. The researcher(s) should have the
requisite experience and/or training to work with the population under investigation. A

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variety of paradigms, methods and techniques may be utilized in the pursuit of valid
research data.

Publication of findings – the findings, including any limitations, of the research should
be reported and subjected to peer review and public scrutiny. It is important, therefore, to
ascertain before research is started that there are no obstacles to such publication. For
example, where permission to conduct the research is required from a state organ, such
permission should include reasonable publication of the findings. In reporting findings,
researchers should adhere to the principles of honesty, clarity, comprehensiveness and

Researcher integrity – researchers should carry out research with social sensitivity and
responsibility; should honour and recognize the authority of professional codes relating to
their specific disciplines; should ensure that they are equipped and qualified to work with
special population groups. Researchers should not misuse their positions as researchers
for personal gain.

Consent – informed consent by participants is an ethical requirement. In principle,
informed consent must be given by participants or their legally authorised
representative(s) before enrolment in the research project. Consent does not have to be
written, but the information on the basis of which a prospective participant will decide
whether to participate, ought to be in writing. Exceptions might include an invitation to
participate in a simple survey that elicits only a small uncomplicated amount of

Prospective participants must be able to choose voluntarily, free from undue influence or
other subtle pressures, whether to participate. In particular, researchers should recognize
the possibility of pressure that may derive from researchers’ expertise or authority and
should take this into account when designing participant information and consent

‘Informed’ choosing can occur when researchers explain, in language understandable to
potential participants, the nature of the research and what will be expected of participants;
that participants will participate in research; that participants are free to choose to
participate or to decline to participate or to withdraw from the project at any time without
reason or consequent penalty; what nature and risks of harm are likely to occur eg
discomfort, emotional upset or trauma, limitations on confidentiality (in focus groups or
because of statutory reporting obligations), including the possibility of retribution from
other members of the community or social stigma; what benefit participation is likely to
bring; and any other aspect about participation in the research about which participants
might enquire or ought to enquire. The object is to place the potential participant in a
position where s/he can make a responsible choice about whether to participate. The
standard for disclosure, therefore, is one of reasonableness and fairness so that
foreseeable consequences of participation can be discussed before the participant is
enrolled. The prospective participant should be permitted sufficient time to consider his

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or her choice, including time for consultation with others eg where the proposed research
is sensitive or complicated.

Minors and other legally incompetent participants: in principle, minors and other legally
incompetent participants cannot give informed consent, which means that a legally
authorised representative is required to give permission while the minor or legally
incompetent person gives assent (assuming willingness to participate). However, there
are instances where no legally authorised representative exists or is available and yet
socially relevant and important research is proposed. For example, understanding how to
assist street children or children orphaned by HIV/Aids requires interactions with the
children themselves and, by definition, they do not usually have a legally authorised
representative who can provide the necessary permission. In other instances, important
research can be conducted only if minors are permitted to consent independently. If no
more than minimal risk of harm exists, and some direct benefit to participants can be
expected, then it might be possible to approve projects for minors to consent unassisted,
especially where survey or questionnaire research is envisaged.

Researchers who wish to conduct research with populations of this type need to explain
in the proposal why the research cannot be conducted with other populations who can
give informed consent; how the vulnerability of the intended population will be
protected; what nature and degree of risk of harm might occur; whether the community
concerned is sympathetic to the notion that the minors can consent unassisted. For
example, parents of school-going children, social workers deployed in the community,
religious and community leaders can be consulted about whether minors can be
approached independently via clinics or schools or whether parental or guardian consent
is required in the community concerned.

Filming or recording: consent documents must explain clearly that visual or audio
recording is intended. If publication of research data is likely and it can be reasonably
foreseen that pictures or other examples of visual media would be desirable to include in
such publication, then, in the consent process, the potential participant should be
informed of this and be given the opportunity to choose whether the visual images of him
or her may be included in the manner described. Where the pictures are naturalistic,
various professional codes provide guidance.

Covert research or deception:
If a researcher designs a study with deception of participants in mind, s/he must justify
and/or explain fully why this design is desirable. The protocol must include the
explanation so that the REC is placed in the position of being able to evaluate whether the
design including covert or deceptive research is justifiable. For example, it may be
undesirable to obtain informed consent for pragmatic reasons, for example, that the
research can be done only if deception or covert observation is integral to the design. The
justification would demonstrate that the benefit from the research outweighs the nature
and risk of harm to participants caused by the deception. The justification should explain
how participants would be harmed if they gave consent; what the risk of harm would be;
what risk of harm might exist for the researcher(s) if informed consent is requested. The

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proposal should also explain the measures that will ensure that deceived participants are
debriefed after the study has ended.

Confidentiality and anonymity – confidentiality means that information is private but
because it is possible for the researcher or others to identify participants from the data,
the information must be protected from unauthorised access or disclosure. Anonymity
means that nobody, including the researcher, can link a participant with data collected.

Conditions that make data confidential rather than anonymous include
    Use of audiotapes during interviews
    Demographic data like date of birth, small descriptive categories
    Qualitative studies with few participants with highly individual information
    Use of random identity number with a separate name/number list

Researchers must protect confidentiality of information gathered during research. They
do so to protect the integrity of the research, the privacy of research participants and to
protect sensitive information obtained in research, teaching, practice and service.
Information obtained in the course of research, which may reveal the identity of a
participant, is confidential unless the participant agrees to its release. Agreement to
release of personal information should be sought only when the participant is properly
informed about possible harms that may occur.

Confidential information provided by research participants, employees, clients or others
must be treated as confidential even if there is no legal protection or privilege. The
obligation to maintain confidentiality extends to members of the research or training
teams and collaborating organizations who have access to the information. To ensure that
access to confidential information is restricted, the principal researcher is responsible for
ensuring that researchers, administrators and other relevant parties are adequately trained
and instructed to take the steps necessary to protect confidentiality.

When gathering confidential information, long-term uses thereof, including its potential
placement in public archives or examination thereof by other researchers or practitioners,
must be considered. Some information is permanently embargoed, ie it may not be
released in public at all; other information is partly embargoed, ie the actual data may not
be made public but may be indexed or analysed to show trends.

Guarantees of complete confidentiality should not be given lightly. In certain
circumstances, statutory obligations to report eg child abuse, sexual abuse etc will
override a guarantee of confidentiality. In the appropriate context, potential participants
must be informed that confidentiality cannot be assured eg that there are statutory
reporting obligations or that it cannot be assured that other participants in a focus group
will maintain absolute confidentiality. In the latter context, confidentiality can be
encouraged by requesting focus group participants to sign a pledge of confidentiality as
part of the consent process for participation.

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Anonymity, on the other hand, can be ensured by appropriate design of the research
project, ie data can be collected without identifiers. Research reports etc can preserve
anonymity by disguising the identity of participants and their localities.


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