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.
A comparative analysis of the Bophuthatswana bill of rights from an international law perspective.
(1984) Naidu, Arjuna.; Soni, Ramanlal.
It is difficult to define "human rights". Is it a political or a legal concept? Notwithstanding this difficulty which is primarily academic, Bophuthatswana has been able to entrench and enforce a justiciable Bill of Rights which is embodied in its Constitution. In Part One there is a general discussion on the concept of human rights together with a general overview of the events leading up to the independence of Bophuthatswana. The nature of the Bophuthatswana Constitution is analysed. The provisions of the Bill of Rights are enumerated and there follows a detailed discussion and analysis of all judicial decisions in which the Bill of Rights was in issue. The general theme of this thesis is to compare the Bophuthatswana Bill of Rights with other instruments, whether national, regional or international. Part Two, therefore looks at the protection of human rights in certain selected countries. These particular countries have been chosen because their Constitutions contain Bills of Rights. Part Two also examines in great detail the judicial protection of the rights guaranteed in each of these countries. For the sake of completeness, Part two concludes with a resume of the position of human rights in each of the other independent international states (that is, Transkei, Ciskei and Venda). Part Three considers the role of regional organisations and regional conventions on human rights of which the most effective is the European Convention. Part Four surveys the international protection of human rights, particularly the United Nations and the many conventions initiated by that body. Part Five comprehensively considers each human right enumerated in the Bill of Rights in a systematic and comparative manner with similar provisions in other national, regional and international instruments. In order that there might be some conception of the kinds of violations involved, decided cases under the European Convention are exhaustively referred to. Part Six concludes this thesis with a brief look at some other important rights (in the author's view) that are excluded from the Bill; and also a discussion on the future trends in Bophuthatswana with regard to the promotion and protection of human rights and fundamental freedoms.
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.
A critical appraisal of Africa's response to the world's first permanent International Criminal Court.
(2011) Du Plessis, Maximillian.
Abstract not available.
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.
Defences available to battered women who kill their abusers : a comparative analysis.
(2009) Krause, Samantha.; Hoctor, Shannon Vaughn.
Private defence is the civilized remnant of the ancient system of private vengeance as redress for wrong done. The Romans, in permitting self-help formulated the principle moderatio inculpatae (moderation in self-defence) which the European jurists later relied upon to develop a coherent doctrine of private defence. Certain types of intentional killings were no longer regarded as unlawful and therefore are not punished as murder. South African recognizes that killing is justifiable and therefore not murder. Despite the sound rationale underlying the defence, namely the upholding of justice theory where people acting in private defence perform acts where they assist in upholding the legal order, and despite the fact that the defence is established in both criminal law legal theory and practice, there are threshold problems with this rationale which has been subject to much academic criticism. Such criticism must be seen in the context of the wider debate surrounding the circumstances in which battered women kill their abusers - normally in circumstances where the threat is not imminent and therefore the need to uphold justice is not necessary. The purpose of this enquiry is to examine the development and functioning of the defence and more particularly to do so in light of a comparison with the means currently utilized to criminalize conduct falling outside the bounds of self-defence: one of the parent systems of South African law, namely English law and the United States, where battered woman syndrome originated and a profound influence on the way in which the elements of the defence are interpreted in that jurisdiction. For instance, in American law subjective tests for self-defence have been developed such as the particularizing standard. This standard asks whether a reasonable person with the accused’s particular non-universal characteristics would have both perceived the situation as the accused perceived it and would have reacted to that perception by committing the accused’s self-defensive act. If the answer is yes, then the act is considered reasonable. It assumes that individuals freely choose how to perceive and respond to a threatening situation but also acknowledge that certain kinds of nonuniversal characteristics (such as battered woman syndrome) exercise such a powerful causal force on individuals perceptions and actions that it would violate the voluntary act requirement when holding that individual who possess such a characteristic to a standard of conduct that does not take that characteristic into account. The study concludes with an assessment of the form the defence ought to take. In South African law the defence consists of the conditions relating to an attack which includes: an attack, and protected interest and the attack must be unlawful. In respect of the conditions relating to the defence, the defence must be reasonably necessary to avert the attack and the defence must be directed against the attacker. Aspects of these elements have proved to be controversial. In particular, the condition of reasonably necessary to avert the attack has been called into question. Furthermore the requirement of imminence has been rendered especially controversial especially when viewed from the battered woman’s perspective where battered woman syndrome plays a role i.e. the woman’s internal makeup having an influence on the way she views the situation as opposed to an objective test is used to establish if the threat was imminent. While the English and American law elements of the duty to retreat, proportionality and reasonableness approximate the equivalent condition of reasonably necessary to avert the attack, the focal point of this defence in these jurisdictions has similarly been the imminence requirement and the test utilized for self-defence i.e. objective or subjective standard. Prior to evaluating the utility of these elements, the various rationales posited as a justification for the defence will be examined. It is submitted that while various rationales have been posited to form the basis of selfdefence, the autonomy theory (narrowly circumscribed) should be followed in South African law and that the traditional elements for self-defence should remain in force. Regarding the requirement that the attack be reasonably necessary, it is submitted that the traditional mechanism for distinguishing justified from unjustified self-defensive acts should remain an objective test. This is so because by taking account of the knowledge the defender has of her attacker the legal requirements of private defence will eventually be equated with those required for putative self-defence. If putative selfdefence goes to the issue of culpability, which is seen as a particular mental attitude or state of mind - South African law will be evincing a move toward a normative concept of fault. Such an approach has not proved unproblematic in South African law. Both early and modern common law as well as modern case law has expounded a coherent statement of the elements of self-defence which include imminence as a core feature. The problem is that traditional imminence rules do not cater adequately for the battered woman’s situation and for this reason theorists have advocated its abolition. The obvious problem with such a recommendation is that something must stand in its stead to distinguish legitimate cases from illegitimate cases of self-defence. In respect of the imminence requirement, the problems created by this standard cannot be solved by replacing imminence with necessity or by claiming priority for necessity or by demanding that imminence means pacifist rather than the libertarian version of necessity. These positions pose the question but do not answer it. Furthermore, if the imminence question cannot be answered by assuming one side of the necessity debate, then it cannot be answered by referring to the distinction between justification and excuse. It is submitted that “instead of viewing objectivity as not being able to account for battered woman’s situation – the opposite conclusion should be reached – that by rethinking certain situational factors as a set of relatively innocuous and perhaps necessary normative propositions then the abused woman’s situation is consistent with some very standard propositions in the law of self-defence. If the abused women is being attacked and the threat is imminent (in the traditional sense), then she should be able to avail to herself of self-defence, although it should be noted that the court should also consider the fact that the battered women placed herself in this dangerous situation. However, the court would also have to take into consideration the difficulty that the abused woman faced in extricating herself from this position. On the basis of a discussion of the various construals that inform the question of whether proportionality should form a necessary requirement for self-defence, including (i) the liberal aspiration to neutrality, (ii) constitutional norms and (iii) a duty of social solidarity to the state, it is submitted that proportionality should form an integral part of the requirements for self-defence. The test can be set out as follows: not only must the defence be necessary but also the means used by the accused for the purpose of averting the attack must be reasonable in the circumstances. This is in accordance with the autonomy theory. Therefore, would an “ordinary, intelligent and prudent person in the accused’s situation would react to establish if the self-defence claim was justifiable. However, it is submitted that not all the characteristics of the accused should be taken into account. Only those “characteristics which have the most (or direct) bearing on the accused’s situation” should be considered. Despite the rationales underlying self-defence, it has not been entirely clear whether an abused woman is expected to flee. It is submitted that there should be a duty to retreat. In the case of the abused woman, her situation is adequately catered for within the reasonableness neutrality perspective. In respect of the defence of provocation, Roman and Roman-Dutch law did not regard anger, jealousy or other emotions as an excuse for criminal conduct, but only as a factor which might mitigate sentence, if the anger was justified by provocation. South African law with its parent system in Roman-Dutch law might have followed this lead had it not result of the Transkei Penal Code of 1887, it envisaged a type of a partial excuse: even if been for the introduction of the mandatory death penalty for murder in 1917. In 1925 as a killing was intentional, homicide which would otherwise be murder maybe reduced to culpable homicide. The test for provocation was thus an objective one. By 1949 in R v Thibani it was held that provocation was not a defence but a special kind of material from which in association with the rest of the evidence the court should decide whether the accused had acted involuntary or without intent to kill. This introduced a subjective test for provocation. But a number of crucial issues remained unresolved; could intense provocation or emotional stress serve to exclude criminal capacity or voluntary conduct. After the decision in Chretien, the question arose, if severe intoxication could exclude these basic elements of liability then could it not also exclude provocation or emotional stress. At this point, the notion of criminal capacity came to the fore. This notion was unknown in South African common law and was adopted from Continental Legal systems, specifically Germany. The notion took hold with the Rumpff Commission of Inquiry into the Responsibility of Deranged Persons and Related matters, the recommendations of which gave rise to the provision of section 78 (1) of the Criminal Procedure Act. In S v Mahlinza set out that criminal capacity of actor is an essential requirement necessary to establish criminal liability. Criminal capacity consists of cognitive component i.e. ability to distinguish between right and wrong and conative capacity i.e. the ability to act in accordance with the distinction. If either was lacking no liability would ensue. In S v Van Vuuren, the court expressed in unequivocal terms that the accused could not be held liable where failure to comprehend what he is doing is attributable to a combination of factors such as provocation or emotional stress. The very idea of allowing provocation to function as a defence excluding an accused’s criminal liability is inherently controversial. From a moral and ethical perspective people are expected to control themselves, even under provocation or emotional stress. To allow it to function as a complete defence as opposed to mitigating factor means that it gives credence to the belief that retaliation is justified in the eyes of the law and this is the very thing criminal law guards against. Despite the well established nature of the defence of non-pathological incapacity, the law has been thrown into flux by the decision of the Supreme Court of Appeal in S v Eadie which constituted a serious erosion of the notion of criminal capacity, with a concomitant “ripple effect” on other topics within the general principles of criminal law. The question this case has highlighted for South African law of non-pathological incapacity is whether the boundaries of the defence have been inappropriately extended. This is so since the court held not only that there is no distinction between the defence of automatism and nonpathological incapacity, and that it would have to be established that the accused acted involuntarily in order for her defence of lack of capacity to prevail, but furthermore held that the court should assess the accused persons evidence about his state of mind by weighing it against his actions and surrounding circumstances, thereby introducing an objective test. Theorists such as Burchell have considered this move “bold” and “encouraging” for its emphasis on objective norms, and the fact that it brings it into line with both the English and American jurisdictions, where not only is an objective element introduced into the enquiry, but where loss of self-control is not totally excusable since the law assumes that provoked party was not totally incapable of controlling anger. If an accused was unable to control himself, a full excuse would be defensible. The notion of capacity has its approximate equivalent in the English and American law of provocation where the jury must consider the subjective question of whether the accused was actually provoked to lose self-control, the defence requires that a reasonable person in the same circumstances would have lost-self control and acted as the accused did. The South African notion of capacity is examined with reference to the way provocation is treated in these jurisdictions. Should non-pathological incapacity be equated with automatism, the established precedent in provocation and other cases of non-pathological incapacity would have to be revised by implication, and would have serious implications for the principle of legality and restricting the scope of the defence for battered women. Furthermore, it is submitted that a move towards an objective test should not be followed. This is so since such an approach does not extend to encompass the battered woman’s mental and emotional characteristics including recognized psychological disorder symptoms. This results in the court not having any meaningful way to determine whether the battered woman lost self-control and furthermore it will lead to increasing attention being directed at how far the objective test be tailored to fit the capacity of the accused. The problem with the capacity test is that it has created via the Criminal Procedure Act a new element of liability by drawing from both the general physical and the mental liability enquiries. Therefore, by duplicating the voluntary act requirement under mens rea, the courts have asked the same question twice. Once the accused is shown to be acting voluntarily, there will be a measure of goal-directed conduct. Where goal-directed conduct is present, it necessarily implies that here must be a level of capacity present in the case of the defence of non-pathological incapacity. In other words, the question is not whether capacity is present, but to what extent it is present. This point is not acknowledged by our courts: the concept of psychological fault underlying South African law offers no explanation for the fact that culpability is capable of gradation. The effects of battering could be used to support a defence of diminished capacity, which focuses not on mitigating circumstances of the act, but rather on the actor’s inability to form the requisite mens rea for the offence charged. However, the introduction of such a defence could only be achieved by returning to the rules relating to provocation followed in South Africa prior to 1971. According to the specific intent doctrine, policy considerations require that an accused should not be completely acquitted. However, these considerations require that an accused should not be completely acquitted. However, these considerations also require that an accused not be convicted of murder but of culpable homicide. This compromise solution (of culpable homicide) can only be reached by treating provocation as a special defence, one which is not strictly adjudicated in terms of the general principles relating to culpability (mens rea). Furthermore, it is submitted that a subjective test must be applied, since Snyman’s objective-subjective test leads to an illogical confusion between the subjective and objective elements.
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.

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