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Criminal Law

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Browsing Criminal Law by Author "Bhamjee, Suhayfa."

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    The end of the rope: The Criminal Law’s perspective regarding Acts of Consensual Sexual Violence between adult partners within the South African, English and Canadian legal frameworks.
    (2018) Soni, Vishay Kumar.; Bhamjee, Suhayfa.
    Nestled within the Constitution lies a guarantee for the sanctity and enforcement of sections 10, being the right to human dignity, 11, promising the right to life and 12, protecting the freedom and security of the person.1 On the converse, the acts of consensual sexual violence between adult partners, from the practices of sadomasochism and BDSM, question the very essence of these protected Constitutional rights. South African criminal courts have not yet heard a matter concerning a dispute arising from consensual sexual violence. However, such may not be completely obscured within the vast discord of legality. The complexity and lingering shroud of legal ambivalence over this practice raises the question of whether South African courts will deem such activity as inherently criminal, based on existing legislation; along with the similarities in both national and international case law. Will a court find its definition within the common law crime of assault, or pay homage to the aforementioned Constitutional rights and rule in favour of the rights to privacy, dignity and freedom of expression? A court may also draw inspiration from the assessment of public policy, public interest and the often-illusive judicial perspective of victimless crimes. This dissertation analyses the development of relevant criminal cases within the jurisdictions of England and Canada involving consensual sexual violence, bringing varying degrees of bodily harm, and its displacement within those legal systems. The dissertation interprets and compares such developments by the implementation of a cross-jurisdictional timeline regarding cases of consensual sexual violence and similar acts. Such leads to the juxtaposition within South African criminal jurisprudence, paying homage to the relevant Constitutional rights guaranteed to every citizen within South Africa. The dissertation delves into the assessment and interpretation of relevant South African viewpoints regarding legal aspects such as consent, public policy, autonomy, dignity, sexuality, and elements of assault. This inquiry determines whether there is a duty upon the State to intervene and control such practices of consensual sexual violence in the democratic society,or whether there is any respite for the State within the private confines of consensual adult interactions. Ultimately, this dissertation analyses the possible legality of consensual sexual violence arising in varying degrees of bodily harm between consenting adult partners within South Africa. This is explored through perspectives of English and Canadian law by implementing a cross-jurisdictional timeline, in juxtaposition to the South African Constitutional prerogatives. Such a comparative inquiry leads to the possible position of the South African law in dealing with acts of consensual sexual violence and the interpretation of harm that emanates from these practices.
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    Sentencing juveniles according to the Child Justice Act: a critical evaluation of application of the principle that "detention must be a measure of last resort and for the shortest possible period of time" in the case law.
    (2016) Gurahoo, Juanita.; Bhamjee, Suhayfa.
    The 1990s gave momentum to the Child Justice Movement motivated by the need for a separate criminal justice system to deal with juvenile delinquency. The movement’s focus was on law reform, child detention, and restorative justice. International instruments endorsed by South Africa contributed to the promulgation of children’s rights under the Constitution. The Constitution brought about change regarding the treatment of juvenile delinquents in conflict with the law. Section 28 emphasises that the best interests of the child is of paramount importance, apropos of every matter that affects the child, including detention. The main objective of the CJA is to divert juvenile delinquents away from the criminal justice system by means of restorative justice conditioning to prevent re-offending. However, the CJA acknowledges that diversion may be unsuitable, inadequate, and unsuccessful, hence the creation of child justice courts to sentence juvenile delinquents. The CJA does not only set out the rights of children, but also it lays down when imprisonment may occur, the various sentences that may be imposed, and the benefits of treating children differently from adults. The guiding principle behind the CJA is that children should not be treated more severely than adults; and one must have regard to international instruments which state that detention should always be a measure of the last resort and for the shortest possible period. Despite these fundamental legislative changes, the research has indicated that the majority of sentencers have imposed lengthy detention sentences for juveniles who have committed serious crimes in violation of the constitutional principle that juvenile detention must be a measure of last resort and for the shortest possible period. It was found that the principle: ‘juvenile detention should be a measure of last resort and for the shortest possible period’ is not only vague, but creates inconsistency during sentencing because of its inability to give objective sentencing guidelines and the operation of excessively wide judicial discretion. This results to numerous appeals and reviews of sentences, while children’s rights are not upheld in the most stringent manner as required by the Constitution and international instruments. These juvenile rights violations can be attributed to the fact that the seriousness of the offence was found to be overemphasised at the expense of the youthfulness of the accused. Furthermore, it was found that there is little deviation in the length of sentences imposed under the CJA and that of the CPA. Similarly, there seems to be little deviation between the sentences imposed on juveniles and those that are imposed on adults. All the while restorative justice is ignored. The aim of this dissertation was to investigate the legislative sentencing principles for juveniles aged 14 years and older who have committed serious crimes. This dissertation questioned whether the constitutional entrenchment of juvenile rights and the promulgation of the CJA had made any substantial difference in the types of sentences and sentence duration imposed on juveniles who commit serious crimes. It was recommended that the legislature should provide an objective juvenile sentencing guideline to limit the operation of excessively wide judicial discretion and combat the vagueness sentencers experience of the principle that juvenile detention should be a measure of last resort and for the shortest possible period. The Dutch are renowned worldwide for their liberal sentencing regime promoting restorative justice practices. Hence, it was recommended that the legislature should opt to create an objective juvenile sentencing guideline which is based on the Dutch bos-polaris sentencing guidelines. Furthermore, it was recommended that restorative justice sentences should be emphasised and endorsed amongst sentencers. The CJA is primarily based on the premise that restorative justice 6 will allow for the rehabilitation and reintegration of juvenile offenders. This premise is supported by academics who have frequently asserted that juveniles are more prone to rehabilitation than adults; and that research has found juvenile rehabilitation to be highly successful.