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Criminal Law

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    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.
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    Battered women who kill abusive partners in non-confrontational circumstances : can South African law do more to protect them?
    Moodley, Leneshrie.; Hoctor, Shannon Vaughn.
    Abstract not available
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    The housebreaking crime to remain a common-law crime in South Africa.
    (2015) Mkhize, Richard Sbonelo.; Hoctor, Shannon Vaughn.; Goodier, Caroline Margaret Mary.
    The crime of housebreaking with intent to commit a crime was unknown in Roman and Roman-Dutch law. This crime was treated as an aggravated form of theft. It emanates from the English law crimes of burglary and housebreaking. Its development was fraught with technicalities due to the fragmentary nature of its elements. However, the South African law followed its own developmental path even though the English law authorities contributed to its development by way of authorities. There have been calls for this crime to be abolished or statutorily regulated due to the difficulties or problems caused by some of its elements and due to a lack of overarching rationale for it. The purpose of this dissertation is to examine the „breaking‟ and „premises‟ requirements of the common-law crime of housebreaking with intent to commit a crime from South African law perspective. These two elements have been criticised for causing most difficulties or problems for this crime. The various journal articles, textbooks, relevant case law and statutory provisions on this topic are considered for this dissertation. After due consideration of all the relevant material, it becomes conspicuous that the South African law cannot afford not to have this crime as part of our law; thus the crime cannot be abolished. The dissertation concludes that the crime of housebreaking should remain a common-law crime as opposed to the proposal to have it becoming a statutory offence.
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    A comparative study of corporate criminal liability : advancing an argument for the reform of corporate criminal liability in South Africa, by introducing a new offence of corporate homicide.
    (2014) Farisani, Dorothy Mmakgwale.; Hoctor, Shannon Vaughn.
    With corporations playing a prominent role in economies worldwide, economic activities sometimes result in the negligent deaths of people. Corporate criminal liability is a concept that is accepted in many countries including South Africa. In South Africa it is currently regulated by section 332 of the Criminal Procedure Act 51 of 1977. Despite the fact that corporations are juristic persons with no ability to think and act with intent, the concept of corporate criminal liability is in existence and several theories have been relied upon by various jurisdictions as their basis for corporate criminal liability. Two of these theories are ‘vicarious liability’ which result in the corporation being held vicariously liable for crimes committed by its officers and the ‘identification theory’ which result in the corporation being held personally liable for crimes committed by its officers. (A Pinto & M Evans Corporate Criminal Liability 2nd ed (2008) 24). Developments during the past twenty five years have shown that these theories are fraught with problems and these have led to corporations escaping liability, especially where there has been negligent loss of lives. To overcome these problems, jurisdictions such as England and Canada have recently resorted to having legislation that deal specifically with corporations that have negligently caused deaths. (England’s Corporate Manslaughter and Corporate Homicide Act 2007 and Canada’s Bill C-45 which became law on March 31 2004 and is now section 217.1 of the Canadian Criminal Code). In South Africa the rules governing corporate criminal liability include all crimes generally and there is a lack of successful prosecutions for deaths negligently caused by corporations. In this research the concepts of corporate criminal liability and corporate homicide in the three jurisdictions are fully examined. It is determined that regardless of the basis that each jurisdiction relies on, there are various problems that one encounters when dealing with corporate criminal liability and corporate homicide. Problems experienced by these countries will be fully discussed and these will include accounts of situations that led directly to the acceptance of corporate criminal liability into their laws as well as the subsequent decision to treat corporate homicide as a separate offence. The research is intended to be a thorough examination of the concepts of corporate criminal liability and corporate homicide and it is aimed at serving as a guide to South Africa on how to deal effectively with the challenge of corporate crime, specifically negligent deaths caused by corporations or corporate activities.
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    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.
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    An alternative approach to dolus eventualis.
    (2016) Tsuro, Janet Audrey.; Hoctor, Shannon Vaughn.
    Abstract not available.
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    Non-pathological incapacity : reassessing the defence of provocation and emotional stress in South Africa.
    (2015) Maharaj, Sandhya.; Hoctor, Shannon Vaughn.
    The relationship between provocation and the criminal law can be categorised as a necessary but troubled union. Historically, anger was considered as a ground mitigating punishment in Roman law with the law distinguishing between crimes that were committed on impulse and those that were committed with premeditation. This attitude continued into the Middle Ages; however, anger was considered as a complete defence in certain circumstances. The attitude of the Roman-Dutch writers was that anger could only be regarded as a factor mitigating punishment in cases where the anger was justified and was not a ground which excluded capacity. . Since 17th century English law, provocation has been recognised as having an impact on the criminal liability of the accused who killed while ―passions were aroused‖. Serious crimes such as murder, committed while in a state of anger brought on by serious provocation were considered less serious than those commited in ―cold blood‖ or with premeditation. Historically, the basis for this leniency is rooted partly in the need for the concession to human frailty in cases where provocation leads to a loss of self-control. This basis for a defence of provocation continues in jurisdictions such as England and Canada. However, despite this leniency, the general approach in jurisdictions such as England and Canada is that a provoked act cannot excuse the agent from criminal liability completely, but only partially, as fundamentally, individuals are expected to exercise control over their emotions and their actions. Achieving this balance between the recognition of human frailty and enforcing a standard of acceptable behaviour in society, is where the controversy in jurisdictions such as England and Canada emerges. On this fundamental level, the provocation defence emerges as one of the most contentious defences in modern times and has remained that way for many years in jurisdictions such as South Africa, England and Canada. The dilemma in England and Canada centres around ensuring that there is room for a concession to human infirmity on the one hand, while simultaneously ensuring that unacceptable standards of behaviour are not condoned by the law. An important basic principle in most modern v legal systems is that acts of vengeance, which are argued to be the main motivation behind retaliation to provocation, should not only be discouraged but punished. It is due to these considerations of policy that the provocation defence in England and Canada exists only as a partial defence to murder. This approach is in stark contrast to the approach in South African law, where the law during the past quarter of a century, has gone far enough to allow provocation and emotional stress to operate as a complete defence. This dynamic approach is based on the psychological or principle-based approach to criminal liability which is based on the legal principle that unless an individual possesses the capacity or the fair opportunity to regulate his behaviour in accordance with the requirements of the law, the consequences of his behaviour should therefore not apply. The formulation of this innovative approach has been the source of debate which has focused on the purely subjective test for criminal capacity. The defence of nonpathological incapacity due to provocation and emotional stress has occupied an important role in South African criminal law as it accommodates those individuals who kill out of anger, emotional stress, fear, shock and emotional collapse provided that the accused did not possess criminal capacity at the time of the killing. The principle-based approach to provocation and emotional stress, though logical and in line with interests of justice and fairness has been under scrutiny since its development with commentators arguing that the defence of non-pathological incapacity due to provocation and emotional stress is inherently problematic and should, primarily on grounds of policy, be limited to prevent the ―hot-head‖ from being acquitted. This point has been argued by commentators in South Africa who believe that South African law should align itself with Anglo-American systems who take a more stringent stance in relation to provocation. It is with these arguments in mind that the notorious leading case of Eadie is assessed. It was hoped that the case of Eadie would provide much-needed clarity and offer a solution to the problem of perceived facile acquittals. It is submitted that the Eadie judgment failed in both respects. The study assesses this judgment and the reasons for its deficiencies. At present, the defence of of non-pathological incapacity due to vi provocation and emotional stress is in a state of limbo as confusion and controversy dominate. The cause of this disarray has emanated from the notorious landmark judgment by the Supreme Court of Appeal in Eadie. The Eadie judgment has brought about drastic and far-reaching repercussions to the criminal law to the extent that the defence of non-pathological incapacity due to provocation and emotional stress may have been abolished. The judgment itself has had varied interpretations with some academics welcoming its pronouncements, while others have being critical of certain aspects. This study considers the various interpretations and opinions put forth by academic commentators of the Eadie judgment in order to assess the precise significance of the exact import of the Eadie judgement and whether the changes made in this controversial case are warranted. Furthermore, this study evaluates and critically assesses the basis and justification for the defence in South African criminal law. In achieving this aim, the landmark judgment of Eadie is assessed to determine the extent to which the judgment goes in revising the traditional approach of the courts to provocation and emotional stress. In achieving the goal of this inquiry, which is to re-assess the defence of nonpathological incapacity due to provocation and emotional stress, the development of this defence was traced in South African law to determine if a coherent rationale exists underpinning the defence. The most important objective of this study is thus to assess whether the law governing the defence of non-pathological incapacity due to emotional stress and provocation in South Africa is in need of reform in light of the controversy and criticisms attacking the inherent nature of this defence. Furthermore, a comparative analysis is conducted with the respective provisions governing the provocation defence in Canadian law as well as English law, which is one of the common-law parent systems of South African law. It is important to gain an understanding of the basis of the defences in each jurisdiction; therefore, the origins of the defence of provocation in each jurisdiction are traced. The comparative analysis seeks to determine whether the approach to provocation in these jurisdictions is preferred to the principled approach in South African law and vii whether South Africa should place a greater emphasis on policy considerations in its treatment of provocation. Should South African law follow England and Canada by limiting the defence to a partial one the critical analysis of the different approaches will aid in identifying the pitfalls inherent in adopting aspects of these alternative models. The most important objective of this study is thus to assess whether the law governing the defence of non-pathological incapacity due to emotional stress and provocation in South Africa is in need of reform. In tracing the development of the law in South Africa, a historical survey of South African law and the development the defence of non-pathological incapacity due to provocation and emotional stress reveals somewhat of a turbulent past. Due to the differing influence of different parent systems of law, namely Roman and Roman-Dutch on the one hand and English law on the other, South African law took time to formulate its own unique approach to provocation. Emotions such as anger were historically never considered a complete defence to a killing in South African law. From this standpoint, the law moved on from considering the effect of provocation on criminal intention which was objectively assessed. Ultimately, the law progressed to a stage where intention is assessed subjectively as the focus fell on the state of mind of the accused. These developments eventually led to the re-assessment of the approach to provocation. The Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters, popularly known as the Rumpff Commission Report was highly influential in popularising the notion of criminal capacity which was subjected to investigation by the Commission. The recommendations of the Commission gave rise to s 78(1) of the Criminal Procedure Act of 1977 which governs mental illness. However, the test formulated was extended to encompass non-pathological incapacity. The Rumpff Commission Report identified two essential components of criminal capacity that is cognitive and conative capacity. The concept of self-control was defined in the Rumpff Commission Report. The popularization of this notion of criminal capacity eventually changed the landscape of how provocation and emotional stress is treated today. The emergence of the doctrine viii ―toerekeningsvatbaarheid‖ or criminal capacity marked the broadening of the defence which began towards the latter part of the twentieth century when it was accepted that factors such as intoxication, emotional stress and provocation could in circumstances impair criminal capacity. These factors are not the cause of a mental defect, thus the notion of non-pathological incapacity was developed. The courts recognised that criminal incapacity could result from non-pathological causes and the defence of nonpathological incapacity based on provocation and emotional stress emerged. Notably, the Rumpff Commission identified a third category, that of affective functions, which govern an individual‘s feelings and emotions. Provocation and emotional stress are categorised as affective functions, the Rumpff Commission cautioned against allowing affective functions excluding criminal liability in cases where volitional control and insight were present. Despite this warning South African law has allowed affective functions to impinge upon the inquiry into criminal capacity where cognitive or conative functions are affected. The case of Laubscher set out the classic two-stage test for the defence of nonpathological incapacity, which is: (1) the ability to distinguish between the wrongfulness or otherwise of his conduct, (2) the capacity to act in accordance with such an appreciation. The Laubscher case provided a theoretical framework for the defence and stated that in terms of legal principle, non-pathological incapacity could lead to an acquittal; the defence of non-pathological incapacity gained an autonomous independent existence from the defence of pathological incapacity. The court emphasised that in order for an accused to be criminally accountable, the accused‘s mental faculites must be such that he is legally to blame for his conduct. The law distinguishes between conduct which is uncontrolled and that which is uncontrollable; it is uncontrolled actions which attracts criminal liability as the conduct is blameworthy. In the last two decades, the law‘s treatment of provocation and emotional stress has undergone major development with the defence of non-pathological incapacity due to provocation and emotional stress becoming a legitimate, fully-fledged defence. However, a controversial aspect of the provocation defence in South African law is the fact that criminal capacity is completely subjectively assessed. ix There have been certain contentious acquittals in cases such as Arnold, Moses and Nursingh which further fuelled debate on the acceptability of a defence based on provocation and emotional stress and highlighted the risk of facile acquittals. However, the acquittals in these cases unearthed problems relating to application of principle rather than the principle itself. In each case the presence of a series of goal-directed acts on the part of the accused indicated the presence of conative capacity, volitional control and insight on the part of both accused were present therefore indicating that capacity was not lacking. It is submitted that these cases were wrongly decided which consequently brought the defence of non-pathological incapacity due to provocation and emotional stress into disrepute. However, it is clear that the acquittals in these cases were a direct result of failure of the courts to properly apply the fundamentals of the defence to the facts. A significant feature of Nursingh is that the prosection did not lead expert testimony to rebut the expert evidence led by the defence. In Arnold, the State did not lead expert psychiatric evidence either in support of its case or challenge the opinions of the evidence led by the defence witness. This may have created an unbalanced view for the court. In an attempt to bring clarity to this area of the law and to quell public outrage arising from the acquittals in Arnold, Nursingh and Moses, the court in Eadie effected fundamental changes in the form of a policy brake to the principles underpinning the defence of non-pathological incapacity, which, in a drastic turn of events, has led to uncertainty regarding whether the defence of non-pathological incapacity still exists. There are two major difficulties arising from the Eadie judgment. First, there is undoubtedly the court‘s conflation of the defence of non-pathological incapacity with the defence of sane automatism; the ramifications of this conflation are tremendous and far-reaching. It is submitted, with respect, that the court in Eadie has demonstrated a failure to understand the distinct attributes and purpose of both defences of nonpathological incapacity and the defence of sane automatism. In terms of legal principle, there is a distinct difference between making a decision and having the ability to execute the decision. A person may be capable of voluntary conduct but may lack the x ability to set goals and may not have the ability to pursue these goals or to resist impulses to act contrary to what his insights tell him is right and wrong. In addition, the subjective test for capacity is substituted by the objective standard in the form of the test for sane automatism. The result is that the test for voluntariness occurs twice, firstly to determine if the accused acted voluntarily, and secondly once cognitive capacity is determined, in lieu of the test for conative capacity. This new development results in unnecessary duplication and complication. This amounts to the integration of a totally different defence, sane automatism, into the defence of non-pathological incapacity. Hence the test for capacity is defeated and thus becomes redundant. The conflation of the two defences creates difficulties not only in application, but the presence of automatism also erodes the test for capacity; there is a clear misunderstanding since the lack of capacity does not necessarily mean voluntary conduct is not present. The rejection of the difference between the test to determine voluntariness and the test for conative capacity will lead to the basic concepts of criminal liability losing their significance. Furthermore, the negation of the existence of the defence is detrimental to the criminal law system as it results in the partial elimination of the element of criminal capacity. It is submitted that the defence serves an important need in society and erosion of the defence is not in the interests of justice as it deprives individuals such as the battered woman of a defence; it is submitted that victims of abuse who kill their abusers stand a greater chance of succeeding when pleading non-pathological incapacity due to provocation and emotional stress. The second major problem with the Eadie judgment relates to the introduction of an objective test into the inquiry for criminal capacity. There have been proposals by academics to bring South African criminal law in line with other jurisdictions in AngloAmerica by incorporating an objective test into the defence, mainly to prevent abuse of the defence. However, it is submitted that this study has revealed that the incorporation of an objective test is not only unnecessary, but will be detrimental to the proper functioning of the defence, as there are clear problems concerning the application of an objective standard in the form of a reasonable or ordinary person. xi This conclusion can be deduced after analysing the results of the comparative analysis. Jurisdictions such as Canada and England have a strong bias for the use of an objective test which is considered to be an essential safeguard within the defence. The model of the reasonable man or ordinary person is favoured to determine if the reasonable man would have lost control in the same way as the accused. There is difficulty in deciding what attributes to assign to the fictional reasonable/ordinary person. This has led to inconsistent judgments and confusion in both England and Canada. The objective test is arguably one of the most problematic aspects of the provocation defence in England and Canada. There is a common problem of interpretation and application of the objective test. The difficulties associated with the objective test was one of the main problems identified with the now abolished provocation defence in terms of section 3 of the Homicide Act of 1957. Clearly, England and Canada have struggled with creating a balance in respect of the problem of accommodating human weakness while simultaneously ensuring that a person‘s right not to be killed by enraged individuals is protected. This delicate balance has seemed elusive and almost impossible to achieve. This indicates that fundamentally, that the rationale for the objective test is flawed and application of this rigid standard is practically unworkable since the courts are unable to effectively apply a stringent objective standard; a just and fair result cannot be obtained especially considering the nature and differing effects of provocation on different individual. This strongly indicates that the use of an objective test in trying to uncover what was going on in the mind of a human being is fundamentally illogical and application of this standard will be difficult to interpret and to apply to the facts, besides being extremely unfair and unjust. The use of ―reasonable man‖ or the ―ordinary man‖ to determine acceptable behaviour has been justifiably described as ―oxymoronic‖. In light of the introduction of an objective test in Eadie, it is submitted that the use of an objective test within the defence of provocation constitutes an unjust imposition of dominant cultural values. This criticism is key especially in light of the history and xii racial and socio-economic diversity in South Africa, furthermore, social and economic backgrounds may differ immensely from person to person and it is unfair and unjust to apply a uniform standard which cannot take cognisance such differences. Furthermore, it is correctly argued that an objective test subverts the principle upon which the concept of justification on which the criminal law is based, that individuals are autonomous moral agents who possess the right to freedom of action, therefore it is in light of this principle they are held responsible for their actions. Therefore, in terms of this argument the introduction of an objective test for conative capacity can be subjected to constitutional challenge for unjustifiably infringing on the right to dignity, granted by section 14 of the 1996 Constitution, furthermore, the right to freedom and security of the person in terms of section 12(1) (a) of the 1996 Constitution. The comparative analysis has revealed that there are other problems with the provocation defence in England and Canada. The restrictive nature of the defence in both jurisidictions have led to problems of gender discrimination by not encompassing persons such as the battered woman. The requirement of loss of self-control is a large part of the problem in both England and Canada since it is predicated on the angered states and is dependent on the ―eruptive‖ moment. This leaves little room for other causes of loss of self-control such as fear, thereby automatically excluding cases involving cumulative provocation from the ambit. A coherent rationale for the defence in England and Canada does not exist and there is debate regarding whether the defence is a justication or an exuse. This is the cause of the problem as in terms of policy, the actions of an accused can neither be partially justified or partially excused, since a degree of blameworthiness exists. Though the current defence in England has undergone reformation and now accommodates loss of self-control emanating from fear, the new provisions may still prove problematic, as fear and loss of self-control in English law may be incompatable as killing arising out of fear usually lacks the traditional eruptive moment. The notion of self-control in the respective defences is flawed and is the primary cause of gender discrimination against abused persons such as the battered woman in England and Canada. xiii It is argued that the defence of non-pathological incapacity due to provocation and emotional stress in South Africa has avoided these problems for several reasons. Firstly, there is a solid theoretical framework underpinning the notion of loss of self-control which derives much of its content from the Rumpff Commission Report, and the case of Laubcher which provides guidance on the application of the test for capacity. The recognition of affective functions causing lack of criminal capacity in South African law has brought persons such as the battered women within the scope of the defence and has avoided the problems relating to gender discrimination, therefore it is submitted that this was a positive and forward-thinking development in South African law. Therefore, it is submitted that the Eadie judgment is problematic on several levels and has brought tremendous confusion and uncertainty to the defence of non-pathological incapacity due to provocation and emotional stress. Judicial intervention is necessary in order to bring clarity and restore the defence of non-pathological incapacity due to provocation and emotional stress in terms of the two stage test delineated by Laubscher by over-ruling Eadie. It is submitted that the fears of easy acquittals are unfounded, proper application of the established principles governing the defence are adequate safeguards for preventing facile acquittals. However, there is one short-coming of the defence, this relates to the uncertain role of expert evidence. It is submitted that analysis of South African case law reveals that there is lack of clarity regarding the role of expert evidence in cases involving non-pathological incapacity due to provocation and emotional stress. There is uncertainty surrounding the necessity of the expert testimony, though it has been stated that the success of the defence is unlikely if expert testimony is not led in support of the defence. Due to the nature of this defence, which may involve killings arising from trauma, especially when abused persons are involved such as the battered women, the law should be reviewed with the view of making referrals for psychiatric evaluation and counselling mandatory. Providing a structure regulating expert evidence will assist in ensuring that case law is consistent. xiv Furthermore, from the assessment of case law it is clear that an imbalance of expert evidence on the part of the prosecution may deprive the court of a balanced view and result in inconsistent case law. Thus, it is proposed that expert testimony should be mandatory. This, according to Burchell, will ensure that the court obtains a balanced, well-informed view, which will work to prevent facile acquittals and ensure consistent outcomes of cases. The defence of non-pathological incapacity is lacking in this respect; consultation and review of this area is required with the view to formulating a structure that could form part of the provisions of the Criminal Procedure Act of 1977. Furthermore, it has correctly been argued by Burchell that expert evidence should be led after evidence relating to the accused‘s version of events has been heard. Expert witnesses would thus have an opportunity to re-evaluate their evidence after hearing the facts of the case as well as hearing the accused‘s version being tested at crossexamination. This is important since the psychiatric evidence is largely based on the cogency of the accused‘s version of events. It is submitted that these proposals will ensure that established principles which were eroded by Eadie are restored while addressing a clear void in respect of the lack of clarity and framework delineating the role of expert testimony. The defences in both England and Canada are based on the misguided need to accommodate human frailty and predicated on the problematic concept of loss of selfcontrol which favours angered states, there this concept lacks effective content. This is the reason that determining the rationale for the partial defence in both jurisdictions has proved tricky. The defence in both England and Canada falter in this respect. It is submitted that it is unwise to adopt the foreign models of the provocation defence such as the English and Canadian model. The defence of non-pathological incapacity is a simple formulation which lacks the unnecessary complexities and unfair rigidity of both the English and Canadian codified provisions. A coherent rationale exists which provides for a solid basis for providing an acquittal based on blameworthiness.
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    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.
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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.
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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.
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    What constitutes 'substantial and compelling circumstances' in the mandatory and minimum sentencing context?
    (2016) Njoko, Thulisile Brenda.; Hoctor, Shannon Vaughn.
    No abstract available.
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    The right to remain silent : an unfair advantage.
    (2017) Khedun, Chantal Bodha.; Reddi, Managay.
    Abstract available in PDF file.
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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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    The role of public participation in landfill management: a community case study.
    (2018) Marnewick, Gillian.; Kidd, Michael Anthony.
    No abstract available.
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    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.