Browsing by Author "Khumalo, Khulekani."

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Common purpose: The last hope for the successful prosecution of 'mob justice' murder cases.
(2017) Monyela, Boitumelo Madira.; Khumalo, Khulekani.
Mob justice is prevalent in South Africa and the only way these “mob justice” cases can be successfully prosecuted is through the application of the common purpose doctrine. It should be noted that such an important doctrine is under siege, yet it actually has a crucial role to play in “mob justice” murder cases. Therefore, the purpose of this dissertation is to defend the importance of having the common purpose doctrine in the South African criminal justice system, particularly in the context of “mob justice” murder cases. I will defend its importance by responding to some of the scathing criticisms of the doctrine that were advanced S v Thebus and Another 2003 (2) SACR 319 (CC), followed by writers such as Burchell, Grant, Rabie and Boister.
A critical analysis of the crime of robbery "with aggravating circumstances".
(2017) Hodi, Mxolisi.; Khumalo, Khulekani.
This paper is a result of a critical consideration of the crime of robbery with aggravating circumstances as defined in section 1(1) (b) of the Criminal Procedure Act 51 of 1977. The historical origin and development of the crime was investigated. The development of the crime of robbery in South African law and the current law relating to robbery and robbery with aggravating circumstances were researched. Sentencing for the crime of robbery in comparison with robbery with aggravating circumstances in South African law is discussed and relevant aspects relating to criminal procedure Act were identified.
Critically evaluating the machinery of the Domestic Violence Act 116 of 1998 for combating domestic violence in South Africa.
(2017) Sibisi, Siyabonga.; Khumalo, Khulekani.
There is an international law duty on South Africa in terms of the Convention on the Elimination of Violence Against Women (CEDAW) and the Convention on the Elimination of Violence Against Woman (CEVAW). Section 12 (1) (c) of the Constitution of the Republic of South Africa, 1996 guarantees a right to be free from violence either from a public source or a private source. South Africa ranks amongst the most dangerous countries in the world. It is submitted that intimate partner violence is at its peak. Domestic violence is a direct violation of various other rights including the right to life, equality, human dignity, privacy, labour and housing. The Domestic Violence Act 116 of 1998 (the DVA) was passed as a means to combat domestic violence primarily by issuing protection orders to victims of domestic violence. This dissertation affirms that the protection order is the core machinery in the DVA for combating domestic violence. However it is further submitted that there are other machineries within the DVA that may equally be effective. It is trite that domestic violence still rears its ugly head. There are various causes for this. On one hand, some argue that the machineries are ineffective, and on the other hand, some argue that they are not being properly implemented. Therefore, the purpose of this dissertation is to set out the core machinery for combating domestic violence and then to critically examine the advances made in the implementation of the same machinery, focussing primarily on the criminal justice system and the challenges they face while implementing the DVA and providing possible solutions.
The historical progression of section 49 of the Criminal Procedure Act 51 of 1977: an overview of the past to present in line with the Constitution of South Africa.
Jabar, Adilla Abdool.; Khumalo, Khulekani.
Police officers are the people that need to utilise the law, especially with regard to effecting an arrest. They would need to know how to apply force in various situations and what limitations are there. It is therefore important for them to understand the purpose of section 49 of the Criminal Procedure Act 51 of 1977, and how to effect a lawful arrest. Crime is rife in South Africa and therefore section 49 had to undergo numerous amendments through the years to try and ensure that the police officials are using reasonable force when apprehending suspects, while also protecting the offender and his right to life. This dissertation aims at examining the three main versions of section 49, which are the 1977 version, the 2003 version and the current version of 2012. The purpose of this examinations is ultimately to assess whether the current 2012 version of section 49, which came about as a result of the Cavender v Minister a/Safety and Security 2001 (4) SA 273 (SCA) and Ex Parte Minister a/Safety and Security: in re S v Walters 2002 (4) SA 613 (CC) complies with these two landmark cases, and is therefore constitutional.
Prosecutorial power and authority: the need to curb the abuse of the power and authority to abandon prosecution in Swaziland.
(2019) Mbatha, Simangele.; Khumalo, Khulekani.
Section 6 of the Swaziland Criminal Procedure and Evidence Act 67 of 1938 makes provision for the stopping of a prosecution. The wording of the section is structured in such a manner as to afford the prosecution too wide a discretion without setting in place checks and balances to foster accountability from the Director of Public Prosecutions department on the use of such power and authority, and as such, opens a door to the abuse of the power and the maladministration of justice. Not only do provisions of section 6 of the Act provide for more than one interpretation, but it is further argued that this section falls short of the spirit and purport of the Constitution of Swaziland, 2005, insofar as it negates the right to equal protection of the law as enshrined under section 20(1), particularly by failing to afford victims of crime any consultative audience before the decision to stop a prosecution is made, thus rendering the section ambiguous and unconstitutional. By embarking on a comparative study of the provisions as are found in South African statutes on the stopping of a prosecution, it is hoped that lessons will be drawn from the rich criminal jurisprudence and possibly incorporated to develop Swaziland law.
Re-opening the debate on developing the crime of public violence in light of the violent protests and strikes.
(2015) Khumalo, Khulekani.; Hoctor, Shannon Vaughn.
While section 17 of the Constitution guarantees the right to freedom of assembly, the violence that often accompanies the exercise of this right culminates in the violation of the rights of non-protesters to, inter alia, life, dignity, equality and freedom and security of the person. The crime of public violence is the primary measure in place for the maintenance of the community’s interest in public peace and order as well as the protection against the invasion of the rights of other people. Therefore, this dissertation seeks to lead a debate on the question whether the apparent failure of the crime of public violence to adequately safeguard the rights of non-protesters means that the crime falls short of the objectives of section 39(2) of the Constitution and thus requires to be developed in order to promote the spirit, purport and objects of the Bill of Rights? If so, how must the development take place in order to meet these objectives? Addressing the topic for debate invariably leads to an assessment of the jurisprudential direction the South African courts are likely to take in the question of developing the crime of public violence as a remedy to the erosion of the rights of non-protesters during violent protests.
Section 15 and 16 of the Criminal Law (sexual offences and related matters) Amendment Act 32 of 2007; lessons from the teddy bear clinic case.
(2016) Denness, Yolynn Rutanya Nicolette.; Khumalo, Khulekani.; Hoctor, Shannon Vaughn.
Abstract not available.
Ten years into the Child Justice Act 75 of 2008: Locating the position of imprisonment within the restorative justice framework.
(2020) Mohan, Rochelle Celene.; Khumalo, Khulekani.
Prior to the Child Justice Act 75 of 2008, South Africa’s child justice system was regulated by the Constitution, the common law and various legislations. Child offenders were processed in the same criminal justice system as adult offenders. The adoption of the Child Justice Act created the procedural framework that is influenced by restorative justice principles and Ubuntu, for dealing with child offenders. In the midst of this rights-based approach child justice system, Chapter 10 of the Child Justice Act regulates the process of sentencing child offenders and provides a list of sentencing options, which includes imprisonment. The essential question to this study is whether the child justice courts are effectively applying the provisions pertaining to the imprisonment of child offenders in terms of the Child Justice Act. Court judgments where the sentencing of child offenders were an issue are examined. The existence of these cases illustrates that the effective application of the imprisonment provisions (these being section 69(1) and (4) of the Child Justice Act) remains a challenge even though the child justice courts have had ten years since the promulgation of the Child Justice Act to ensure these provisions are effectively and consistently applied.
Towards establishing the ‘security laws’ interpretation regime’ which will facilitate the interpretation of state security laws in a manner that upholds and protects the rule of law and human rights: a South African perspective.
(2020) Khumalo, Khulekani.; Hoctor, Shannon Vaughn.
One issue that has confronted democratic states for many years is the often broad and vague nature of security laws, and the consequent need for striking a balance between security laws and the rule of law as well as human rights. A number of democratic states currently rely on legal interpretation as a method for striking the requisite balance. However, it is unfortunate that the courts do not have a consistent record when it comes to interpreting security laws consistently with the rule of law and human rights. To try and solve this conundrum, this thesis studies and analyses the South African security and emergency laws, and thereafter concludes that certain techniques which have evolved over time, can be used to secure the interpretation of security laws in a manner that is cognisant and respectful of the rule of law and human rights. Taken together, these techniques constitute what in this thesis is termed the ‘security laws’ interpretation regime’. Thus, the present thesis proposes the formal establishment of the said interpretation regime. Once established, the interpretation regime will become a precedent for how judges in democratic states can achieve a transformative, liberal, purposive and substantive interpretation of security laws that is cognisant and respectful of the rule of law and human rights. The envisaged interpretation regime will also set South Africa on the right path to being a precedent of good practice when it comes to the interpretation of security laws consistently with the rule of law and human rights.