Masters Degrees (Advanced Criminal Justice)

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An analysis of spousal competence and non-compellability in terms of section 198 of the Criminal Procedure Act 51 of 1977.
(2018) Lazarus, Melissa.; Khan, Franaaz.
Marital privilege to be or not to be that is the question? The origins of marital privilege dictate that it has been founded on the biblical principles of the sacredness of the union between man and wife. So holy is this union that wives could not betray their husbands as they would be betraying the God-ordained marital union. As a result, wives were not competent or compellable witnesses against their husbands. Over the years the privilege has been developed in English common law where wives were declared to be competent and later non-compellable subject to exception only when an accused spouse has been charged with an offence that falls within a specific category. South Africa has adopted marital privilege from the English common law and has since codified it through the enactment of Section 198 of the Criminal Procedure Act 51 of 1977. According to this section spouses cannot be compelled to testify against each other unless the crime for which the accused spouse is charged with appears in the categories listed in Section 195 of the Criminal Procedure Act. This study examines the particular sections that pertain to spousal non-compellability. In so doing it highlights the development of the privilege in English common law and South Africa. There are many criticisms that are levied against affording a privilege to a particular class of persons. The most prevailing argument is that the non-compellability exception given to spouses is unconstitutional because it violates the right to equality in terms of section 9 of the constitution. This study examines the merits of this argument and reaches the conclusion that spousal non-compellability fails to withstand the test against unfair discrimination on the basis of marital status. It is a provision which fails to acknowledge the ever changing needs of a modern society in which we no longer have a one dimensional view of what may constitute a marital relationship. To this end the privilege does not take into account same sex couples, co-habitants and those persons that cannot get married legally. While it may be necessary for spouses and same sex couples to confide in each other without having to be fearful that their communications could be subject to testimony in court, to allow the privilege to remain in existence in its current form is to perpetuate unfair discrimination and inequality within our constitutional democracy. This creates an undesirable situation and therefore demands action in the form of reforming the privilege rather than a total abolishment of the exception. This study seeks to put forth recommendations in this regard by examining the nature, genesis and evolution of spousal competence and non-compellability in South African law.
The applicability of the law of war in internal conflict : a selective study of the Geneva Conventions of 1949 and additional protocols of 1977.
(1980) Borrowdale, Andrew.
No abstract available.
The application of the right to equality for women under international law in Southern African courts : a survey of five countries.
(2002) Adam, Ayesha Goolam Mahomed.; O'Shea, Andreas.
A significant proportion of the world's population are routinely subjected to abuse, torture, humiliation, starvation and mutilation simply because they are female, more so in Africa where women's rights are still often viewed as distinct from human rights. This raises the question of state responsibility for protecting women's human rights. Women, as much as men, are entitled to full protection of their rights and freedoms because they are human beings. A decade ago, the United Nations summarized the burden of gender inequality by stating that women composed one--half of the world's population and performed two thirds of the world's work, but earned only one tenth of the world's income and owned only one hundredth of the worlds property. A look at the constitutions of many Southern African states would suggest that women enjoy equality and access to first generation hunlan rights across the region. In most of these constitutions 'discrimination' on the grounds of gender is prohibited, but the governments frequently do not have the nlechanisms in place to enforce these constitutional provisions effectively and women are therefore subjected to widespread practices of discrimination, violence and inequality. Although party to international human rights instruments that advocate gender equality, African states still take a particularly selective view of women's human rights and make this contingent upon local custom. Then one might find that the constitution and civil law give women the same rights as men, but make these subject to traditional practices that limit women's rights. This dissertation will address the issue of how customary laws limit women's human rights and will examine the role of the courts therein. We will also briefly look at the application of international human rights documents in domestic courts. In order to constructively and comprehensively examine the topic within the space constraints dictated, I had to limit this paper to a survey of five Southern African states that were chosen because of their common language, cultural and legal dualism, colonial histories, and the availability of case law. This paper will cover specific issues that affect women in the personal law of marriage, divorce, property rights and inheritance and will be limited to those areas where most inequalities occur. The reason that this paper will concentrate on the above-mentioned issues is that family law is central to African social, political and economic life. The importance of family law in traditional African systems cannot be sufficiently emphasized as it has been noted that in any study of African traditional economic and political arrangcments, the notion of family impinges upon almost every area of community life. These traditional rules are not merely historical curiosities but are part and parcel of the living domestic law in most Southern African states. We will now examine these domestic legal systenls.
Balancing the right of the accused to access the police docket with the duty of the state to prosecute: an analysis of the impact of the Constitution.
(2019) Ngobane, Yolokazi.; Whitear-Nel, Nicola Jane.
Prior to the constitutional dispensation, South Africa was under parliamentary sovereignty and as a result, the right of access to the police docket was unprecedented. When the 1993 Constitution came into effect, it granted South African citizens several rights which were mostly derived from international instruments. Furthermore, the state transitioned from parliamentary sovereignty to constitutional supremacy. Constitutional supremacy guarantees that the rights entrenched in the Constitution take precedence before any other legislation or case law. Consequential to this transition, the court set new precedence by declaring blanket docket privilege unconstitutional. This dissertation examines the extent to which the accused is granted access to the information contained in the police docket. Both presiding officers and legal scholars have submitted that the accused is not granted unfettered access to the police docket. Upon careful examination of statutory provisions, relevant case law, journal articles and textbooks, it is clear that legislature has been very slow in enacting legislation aimed at regulating the right of access to the docket and this could have a negative effect on the accused, especially those without counsel. As it stands now; this right is too complex for laypersons to understand. This dissertation concludes that accused persons must be afforded an opportunity to examine the contents of the police without all the red tape that surrounds such access.
Battered women syndrome : a possible defence in South African law for women who kill?
(2000) Singh, Nerisha.; Louw, Ronald.
No abstract available.
Comparative analysis of the defence of provocation.
(2000) Pather, Sivikalay.; Louw, Ronald.
No abstract available.
A comparative study pertaining to the laws of Germany and America in respect of the test for dolus eventualis with a specific focus on the crimes of murder and culpable homicide.
(2017) Hagglund, Kirstin Beverley.; Khan, Franaaz.
Dolus eventualis has correctly been described as an ‘enigma’. Not only has it been variously described by the courts, but they have applied the two-stage test, the cognitive and conative component, without providing an in-depth analysis of it means. Both dolus eventualis required for murder and conscious negligence required for culpable homicide contain an element of subjective foresight of the remote possibility of death occurring. As a result, the distinction between murder and culpable has become confused over the years, evident in the courts vacillating between findings of murder and culpable homicide. Regarding the cognitive component, the lack of clarity lies in the degree of foresight which is required, and with regard to the conative component, not only has it been variously described, but it is labelled ‘an unnecessary appendage’. Considering this lack of clarity, there exists a need to examine the test for dolus eventualis in the case of murder and to determine whether it can be distinguished from culpa, in the case of culpable homicide. German law is faced with the same lack of clarity when trying to demarcate bedingter Vorsatz from bewuste Fahrlassigkeit, the equivalent of South African dolus eventualis and conscious negligence respectively. American law is also faced with difficulties when trying to distinguish cases of manslaughter, the South African equivalent of culpable homicide, from ‘extreme indifference’ murder which occurs under substantially the same circumstances as dolus eventualis. Therefore, South African, German and American law and academic opinion is consulted to establish how the respective countries have dealt with the conflation of murder and negligent killings. This has been done by conducting desktop-based (digital and manual) research. From the findings of the research, the current test for dolus eventualis cannot properly be distinguished from cases of culpable homicide and should be reformulated to include foresight of a real, reasonable or substantial possibility of death ensuing. This creates a higher standard of proof which is appropriate for the seriousness of the crime of murder and allows for the contentious conative component to be dispensed with. However, if death was not foreseen as probable, it needs to be asked whether the accused’s conduct offends the legal system to cover those situations in which the accused’s conduct has no social utility and displays an extreme indifference to the value of human life.
A consideration of the retention of the hearsay rule in the law of evidence.
(1987) Draeger, Justin Lawrence.; Newman, Ellie.
No abstract available.
The crime of genocide under international and South African law: a critical race perspective.
(2019) Moodley, Celeste Jadine.; Gevers, Christopher Carl.
The racial politics of international criminal law has been the subject of controversy for a considerable amount of time. The conceptualization of “race” in the crime of genocide has, in particular, been persistently problematic. Apart from having avoided interpreting “race” in the crime of genocide altogether in some instances, international tribunals and authors have developed inconsistent and ambiguous methods of interpretations for genocidal acts committed against a racial group. As a result, international criminal law has produced interpretations of “race” in the crime of genocide that have fallen short of the strict rules of legal interpretation. Further, such interpretations have been inconsistent with both the very specific historical production of “race” and “racism” and the very specific way in which racial hegemony continues to shape contemporary law and society. In light of this, this study proposes an alternative theorisation of “race” for the crime of genocide using a Critical Race Theory perspective. Complementary to this endeavor, this study particularly considers South Africa’s unique race discourse and its possible implications for the interpretation of genocidal acts committed against a racial group in South Africa.
A critical analysis of the offence of rape in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007: identifying challenges and providing solutions thereto.
(2021) Hlongwane, Nompumelelo Portia.; Khumalo, Khulekani
This study examines the reformation of rape laws in South Africa and challenges two inadequacies which are the result of the statutory definition of the offence created by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The first inadequacy being challenged is the retention of consent as an element of the offence. The second inadequacy is the bundling together of all acts of sexual penetration under the label of rape, which arguably infringes the principle of fair labelling. In the course of raising the above mentioned challenges, the present study also offers possible solutions to the impugned aspects of the offence.
Cultural defences in an open and democratic South Africa with specific reference to the custom of ukuthwala and belief in Witchcraft.
(2016) Nzimande, Wandisiwe Patricia.; Hoctor, Shannon Vaughn.
The Constitution of the Republic of South Africa guarantees the right to culture for all its citizens and guarantees non-discrimination on account of religion, conscience, belief and culture. Culture shapes our identity; influence our reasoning, perception and behaviour therefore culture should be a crucial consideration when determining a person’s criminal liability. This paper is based on a notion that conduct of an individual can be seen as an indigenous belief or custom in terms of African customary law but at the same time be considered a crime in terms of our common law and statutory law. This paper will be dealing with the controversial custom of ukuthwala and the belief in witchcraft. This paper will seek to demonstrate that conduct of an accused who thwalas a girl with the honest and bona fide intention to secure a wife under the custom of ukuthwala, where the accused had a genuine yet mistaken belief that his conduct was justified under the custom of ukuthwala his mistaken yet genuine belief may exclude the element of mens era. This paper will further seek to demonstrate that in witchcraft related offences where the belief in witchcraft and the belief in the supernatural is the motivation for the commission of the offence such belief have the potential of excluding the perpetrator criminal liability. Therefore this paper seeks to demonstrate the importance of the recognition of a cultural defence in an open and democratic South Africa.
The decriminalisation of victimless sexual offences.
(1996) Stone, Karen Lara.; Milton, John Robert Landrey.
This dissertation serves as an analysis of the current legislation criminalising both prostitution and homosexuality. The object of the dissertation is to explore the possibility of decriminalisation in the aforementioned areas of the criminal law, on the premise that the criminalisation of the aforementioned areas is not justified. The dissertation provides an overview of the historical progression of the law in relation to the sexual offences of homosexuality and prostitution, and examines the legislative trends that emerge within the historical context. The law and its relation to morality is explored, with the objective of examining whether morality can serve as a sufficient justification for criminalisation of conduct. Additionally the legislative justification for criminalising both homosexuality and prostitution is explored in order to determine the legitimacy thereof The current legislation is defined and examined. The Constitution of South Africa, and specifically the Bill of Rights is investigated to determine whether there can be any foundation therein for an appeal for decriminalisation. Finally, an examination of legislative alternatives is documented. The conclusion is then derived therefrom. The purpose of the dissertation is to examine the decriminalisation of victimless sexual offences, and the results of the research demonstrate favourably towards such an initiative.
Diplomatic immunity : an argument for re-evaluation.
(2011) Goossens, Savio.; ;
Diplomacy is an ancient concept known to man as far back as the ancient Greeks and Romans. Through the passing of time the concept of diplomacy has continuously been developed. The evolution of this concept has followed with the great civilisations of this world. Most notable are the advancements in Europe from the medieval era to the industrial revolution. Diplomacy was first codified in 1815 by the Congress of Vienna. The 1961 Vienna Convention currently regulates the immunities and privileges of the modern diplomat. The immunities range from official acts to the conducting of personal affairs. These immunities protect the diplomat from the foreign state. The extent of these immunities has led to a range of abusive behaviour resulting in controversy. This dissertation sets out a brief historic overview of diplomacy and theories dealing with the discourse of immunities in light of the Vienna Convention on Diplomatic Relations of 1961. A closer look is taken on the privileges and immunities a diplomat enjoys in his personal capacity, his property and his family. Furthermore the development of diplomacy in England and South Africa are discussed. Lastly the Vienna Convention sets out a number of remedies that are able to deter diplomatic agents from abusing their station. However, such remedies alone have proved to be inefficient without the immunities being limited in order to make diplomats accountable for their misconduct. In light of the severity of misconduct by diplomats, a suggestion has been offered for such privileges to be curtailed in order for diplomats to be held accountable for severe crimes committed. As it stands now, diplomats escape liability for heinous crimes such as rape, murder and human trafficking. It is submitted that a re-evaluation of the principles is required.
E-Mail privacy : does the government have the right to intercept and or monitor private e-mail communications?
(2003) Majola, Zanele Precious.; McQuoid-Mason, David Jan.
Section 14 of the Constitution provides for the right to privacy, which includes the right not to have the privacy of communications infringed. The right is also protected at common law - a breach of a person's privacy constitutes an iniura. E-mail communications are therefore protected by both, the common law and the Constitution. The question that this work seeks to answer is, whether the Government has the right to intercept and/or monitor private e-mail communications. The right to privacy is not absolute, case law and legislation show that this right can be limited. At common law, a valid defence will negate the unlawfulness of the invasion. In terms of the Constitution, the right to privacy can only be limited in accordance with the limitation clause section 36. For each case, courts will have to balance, the government's interest in combating crime and that of the citizen to the privacy of their e-mail communications. In seeking to answer the question, this work considers the protection afforded by the common law and the Constitution. It also considers statutes which limit the right to privacy, including whether these statutes are applicable to e-mail communications and if they are, whether they constitute a justifiable limitation of the right, for example: the Regulation of Interception of Communications and Provision of Communication-Related Information Act and the Criminal Procedure Act - which was enacted when the 'cyber-world' was non-existent. All statutes, applicable to e-mail communications, provide for some form of requirements or guidelines before communications can be intercepted or/ and monitored. The right to privacy is also protected in foreign jurisdictions and is not absolute. There is protection only against unreasonable invasions of privacy. In conclusion, both statutory law and common law permit the government, within limitations, to intercept or/ and monitor private e-mail communications. Where there are guidelines, regulating this power, the circumstance under which and when it can be exercised. This will amount to a reasonable and justifiable limitation and therefore the right will not be violated.
The effect of sentencing HIV-positive offenders to imprisonment.
(2016) Manyathi, Linda Lydia.; Hoctor, Shannon Vaughn.
South African correctional centres are overcrowded. There is high-risk sexual behaviour and a lack of nutritious diet, all of which contributes to increasing THE level of stress among inmates. This negatively affects the immune system. These correctional centre conditions are harsh, even to HIV-negative inmates, how much more SO to those who are HIV-positive. The typical lifespan of an HIV-positive person is 10 to 15 years, though, with the aid of ARVs, it can be prolonged. However, in order for ARVs to be effective one must exercise and eat a balanced diet. Re-infection, lack of exercise, lack of nutritious meals and high stress significantly reduce the effectiveness of ARVs. Therefore, offenders who are known to be HIV-positive and are then sentenced to life imprisonment are less likely to serve their full sentence. With overcrowding, HIV-related illnesses easily spread to other inmates and, to make matters worse, high-risk sexual behaviour increases the possibility of infection to HIV-negative inmates. The Correctional Services Act provides that correctional institutions should make provision for: adequate accommodation, nutritious meals, segregation of inmates for medical reasons, safe custody, hygienic living conditions and health care. But, with the prevailing correctional centre conditions of overcrowding, malnutrition, lack of exercise and sexual abuse, it is clear that the Department is failing to deliver on the mandates given to it by the Correctional Services Act. The result of this is that imprisonment for HIV-positive offenders becomes a very difficult experience, as overcrowding leads to low security, bed-sharing and the survival of the fittest. Overcrowding further gives power to gang activities within the correctional centres, because the conditions of low security require that inmates provide their own security, which is paid for at the cost of sexual favours and tattoos which may involve contaminated blades. This exposes other inmates to HIV infection and those who are already infected become re-infected. Sentencing offenders that are known to be HIV-positive to imprisonment promotes the spread of HIV within correctional centres and into the general public. South Africa has the highest HIV infection rate in the whole world. The United States is looked at for possible solutions for curbing the spread of HIV, as there is no sentence that will suit such offenders. This dissertation seeks to investigate possible measures that can be implemented in South African correctional centres to ensure that the spread of HIV in correctional centres is limited.
Equality before the law and access to justice in criminal proceedings under a bill of rights.
(1994) Nkutha, Mathobela Shadrack.; McQuoid-Mason, David Jan.
This work seeks to critically examine the right to legal representation in the South African criminal justice system under a future constitutional dispensation. Extensive attention has been given to how the right to legal representation has been interpreted under the common law. Reference has been made to the united States 6f America's approach to the due process and equal protection clauses in shaping the substantive and procedural content of the right to counsel in criminal proceedings. The importance of legal representation is examined during the pre-trial, trial and sentencing stages of criminal proceedings. A brief comparative examination has been made of the right to legal representation in other foreign jurisdictions, and how the courts have dealt with indigent accused persons facing criminal charges. Proposals from different quarters in South Africa have been discussed in the hope that these proposals may still find a place in the country's final constitution. Finally, the practical implications of a qualified right to free legal representation as provided by the Interim South African Constitution is discussed. Suggestions are also made concerning the approach to be adopted by the courts in the face of judicial precedents which would be in conflict with a new value system under a Bill of Rights after 27 April 1994.
An evaluation of the effect of mandatory minimum sentencing legislation on judicial discretion in South Africa.
(2021) Maharaj, Vijay.; Hoctor, Shannon Vaughn.
This research project deals with the effect of mandatory minimum sentencing legislation on judicial discretion in South Africa, where courts have historically had carte blanche to exercise their considerably broad judicial discretion when sentencing offenders. This judicial discretion was significantly curtailed by the advent of the Criminal Law Amendment Act 51 of 1997, and subsequent amendments thereto. The legislation commenced on 1 May 1998 and is still currently in effect. The legislation was enacted in response to an increase in violent crime at that time, and prescribes mandatory sentences for murder, aggravated robbery, rape, as well as for serious financial crimes and others. The courts are thought to be contemptuous and repugnant towards this legislation as it significantly curtails their judicial discretion. Whilst the general public were initially appeased by the impact of this legislation, many detractors felt this amounted to a harsh sentencing regime, calling for these laws to be abolished during the 23 years of its operation. This is a qualitative study and is based largely on a critical analysis of information gathered from the source material in order to identify gaps and trends in the field of interest. The questions, arguments and debates arising from the chosen focus area are located in both the literature and case law. The research design utilised is desktop research, which relies on secondary data, which are already in existence, including government publications, published or unpublished information available from either within or outside an organization, data available from previous research, online data, case studies, library research, and the Internet in general. The research will clearly enunciate the current legislative and judicial positions and advance convincing arguments and viewpoints from an array of distinguished writers and commentators. Various writers agree that South Africa is in dire need of reforming its sentencing system and believe that mandatory minimum sentencing has failed to adequately address sentencing problems in South Africa, deter violent crime or reduce sentencing disparities. They opine that many individuals within the judicial and criminal justice systems are disgruntled with the current regime, resulting in attempts to circumvent and thus undermine the entire mandatory minimum sentencing scheme.
An Evaluation of the Judge Presidency of John Dove Wilson of Natal (1910-1930)
(1987) Girvin, Stephen Darryl.; Spiller, Peter.
No abstract available.
An evaluation of the role of United Nations civilian and military peacekeepers, with particular reference to conflict management training in the SADC region.
(2002) Ogunsanya, Vivian Oluwakemi.; Rycroft, Alan John.
No abstract available.
An examination of the progression towards no-fault motor vehicle insurance, with particular reference to the Republic of South Africa.
(1986) Wills, Michelle A.
At present in South Africa, personal compensation in relation to motor vehicle accidents is firmly based on the delictual principle of 'fault'. This gives rise to a number of questions: Is this the system best suited to the realities of the motor vehicle and its accident-causing potential in modern society? Are the interests of society best served by a system of compensation based on fault? Is this the optimum system for the handling of the vast number of claims arising out of motor vehicle accidents? Are there alternative workable schemes which could be introduced? To these questions the writer addresses herself in this thesis. By no means will this thesis answer all the intricate and complex questions involved in the fault vs. no-fault debate. However, it is hoped that what follows will contribute to a better understanding of the basic issues involved and will facilitate further discussion with a view to improving the lot of the motor vehicle accident victim.

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