Advanced Criminal Justice

Permanent URI for this communityhttps://hdl.handle.net/10413/8385

Browse

Now showing 1 - 20 of 49

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.
Preventive law.
(1981) Robertson, Michael Keith.; McQuoid-Mason, David Jan.
No abstract available.
Expropriation and the social contract with reference to the relation between citizens and their property.
(1983) Erasmus, Gavin Mark.; Mathews, Antony Stuart.; Boulle, Laurence Joseph.
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.
An examination of the progression towards no-fault motor vehicle insurance, with particular reference to the Republic of South Africa.
(1986) Wills, Michelle A.
At present in South Africa, personal compensation in relation to motor vehicle accidents is firmly based on the delictual principle of 'fault'. This gives rise to a number of questions: Is this the system best suited to the realities of the motor vehicle and its accident-causing potential in modern society? Are the interests of society best served by a system of compensation based on fault? Is this the optimum system for the handling of the vast number of claims arising out of motor vehicle accidents? Are there alternative workable schemes which could be introduced? To these questions the writer addresses herself in this thesis. By no means will this thesis answer all the intricate and complex questions involved in the fault vs. no-fault debate. However, it is hoped that what follows will contribute to a better understanding of the basic issues involved and will facilitate further discussion with a view to improving the lot of the motor vehicle accident victim.
The undefended accused on trial : justice in the lower courts.
(1986) Steytler, Nicolaas Christiaan.; Olmesdahl, Michael C. J.; McQuoid-Mason, David Jan.
Due to the party-orientation and professional nature of the adversary mode of criminal procedure, the principles of a fair trial are best observed where the accused is represented by a lawyer. Given the advantages to be gained from legal representation, the principle of equal justice requires that all accused should have access to legal assistance and thus that legal aid should be provided for indigent accused. The South African legal aid scheme cannot yet provide assistance to all indigent accused because of the large number of these accused, the shortage of manpower and the lack of funds. There are, however, few legislative provisions to safeguard the rights of the vast majority of accused, arraigned in the lower courts, who remain undefended. The Supreme Court, in order to ensure that these accused are fairly tried, has imposed the following types of duties on judicial officers: (a) a duty to facilitate the accused's participation in the proceedings by advising him of his rights and duties and assisting him in their exercise; (b) a duty to control the prosecutor in the exercise of his powers; and (c) a duty to conduct an enquiry before arriving at administrative-type decisions. These duties are, however, inadequate to achieve the Court's, objective because, firstly, not all, rights are made accessible to the accused, and secondly, the duties are inadequate to ensure that the accused's guilt is reliably established. The failure of the legislature and the Supreme Court to incorporate the principle of equal justice into the legal process, has resulted in court proceedings that are characterized by unjust practices and outcomes. To ensure the more equitable prosecution of undefended accused it is suggested that an activist judicial officer should be responsible for the enforcement of all the principles of a fair trial (which would be concretized in clear legal rules) in an impartial manner, with his decisionmaking routinely supervised by the Supreme Court.
A consideration of the retention of the hearsay rule in the law of evidence.
(1987) Draeger, Justin Lawrence.; Newman, Ellie.
No abstract available.
An Evaluation of the Judge Presidency of John Dove Wilson of Natal (1910-1930)
(1987) Girvin, Stephen Darryl.; Spiller, Peter.
No abstract available.
A History of the Natal Provincial Division of the Supreme Court of South Africa during the Judge Presidency of Richard Feetham (1930-1939) : with particular reference to the bench and bar.
(1988) De Beer, Marina.; Spiller, Peter.; Newman, Ellie.
Richard Feetham was Judge President of the Natal Provincial Division from 1 May 1930 to 18 July 1939. He succeeded Dove Wilson who was an able but not a very learned or dynamic Judge President. Thus, at the time of his appointment the Natal Court and its judgments were treated with little respect by the other provincial divisions. Feetham JP, unlike his predecessor, was not only a scholar with a towering intellect but a man endowed with outstanding leadership qualities. He was thus ideally suited to bring about a change for the better in the status of the Natal Court. He did this by taking a dynamic lead and presided over and delivered a high proportion of the courts' judgments. He also set his brethren an excellent example by the high standard he set for himself and his court and which they emulated. This thesis thus also covers the careers of these puisne and acting puisne judges and their contribution towards the better administration of justice in Natal. In 1930 there existed in Natal a disinct system of dual practice with a de facto Bar. This system had been a vexed question in the minds of Natal lawyers for two decades but when Feetham JP was confronted with it he immediately addressed the controversial issue and brought about the necessary reforms to divide the legal profession and bring Natal into line with the rest of South Africa. This reform raised the quality of pleading and manner in which the law was presented. It also provided the Natal Bench with able personnel for the future from within Natal. Accordingly this thesis also assesses the careers of the main legal practitioners of that period and their contribution towards the development of the administration of justice in Natal. In less than ten years Feetham JP thus transformed the Natal Provincial Division from being weak and ineffectual to a position where it became a division respected for its Bench, judgments and legal profession. During the course of time history has confirmed the overall significance of Richard Feetham's Judge Presidency.
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.
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.
The horizontal application of the South African Bill of Rights.
(1998) Chetty, Karun D.; Govender, Karthigasen.
The Constitution of the Republic of South Africa, Act 200 of 1993 which operated as the interim constitution of the Republic introduced a new legal order predicated on constitutionalism and constitutional supremacy. Within it was entrenched a justiciable Bill of Rights that guaranteed the enforcement and protection of the fundamental rights of the individuals of the state. Notionally and traditionally bills of rights have been conceived as a mechanism for the protection and enforcement of fundamental human rights against the state, the abuse of state authority and sate power. Such an application has been typified as the vertical application of the bill of rights . During the drafting process of the Interim Constitution, the Technical Committees commissioned by the Multi-Party Negotiating Process for that purpose were preoccupied with the question as to whether the South African Bill of Rights should apply in the private sphere between private persons acting inter se; such an application being typified as the horizontal application. The result was an ambiguous text. The question of whether the Bill of Rights was indeed capable of a horizontal application was intensely debated before the Constitutional Court of South Africa in Du Plessis And Others v De Klerk And Another 1996 (3) SA 850. And in an equally intense judgment the majority of the Court concluded that the Bill of Rights was not in general capable of a direct horizontal application. Although influenced by a strenuous textual analysis, there were other considerations too that influenced the Court's decision. One of the most important of these was that the operation of a bill of rights in the private sphere would be contrary to the notion of a constitutional state and that it would make the law vague and uncertain. However, the very same Constitutional Court a few months later in In Re: Certification of the Constitution of the Republic of South Africa, 1996, 1996 (10) BCLR 1253 (CC) certified that Section 8 (2) of Chapter 3 unequivocally provided for the horizontal application of the Bill of Rights. This dissertation examines the paradigms within which the Bill of Rights operates horizontally and analyzes the apprehensions expressed in Du Plessis v De Klerk within the context of these paradigms.
Food legislation in third world countries : a case study of Zambia.
(1998) Nakazwe, Mbita.; McQuoid-Mason, David Jan.
Advances in the food industry have made food consumption increasingly complex. Varieties of foodstuffs that are available to consumers each day are on the increase. It is therefore essential that legislation in place ensures the heal th of unsophisticated consumers, in the face of a sophisticated food industry. The need for food safety legislation is even more crucial to Third World countries where literacy levels are low, poverty levels high, and chronic food shortages, prevalent. An important question that any developing country has to address is how it can better equip its food control system within its own limited resources? Does the answer lie in an increase in the amount of food safety legislation? Or in the improvement of enforcement mechanisms? This thesis investigates the existence and effectiveness of food safety legislation in typical Third World countries and for this purpose, Zambia has been chosen as a particular case study. The aim of the study is to analyse the existing legal framework and to assess the effectiveness of its enforcement. This has been done by way of library research and personal interviews. The Internet also proved to be a valuable research tool. From the findings of the study it is clear that although there exists within the country a legal framework controlling food quality and safety, the same requires urgent amendment and more effective enforcement. It was realised from the findings of this study that the situation that currently obtains in Zambia can only be left unattended at the nation's peril. It is imperative that legislation in operation is made more effective especially with regard to food imports where a notable lacuna exists. The enforcement of legislation is another area that desperately requires reform. The solution to the problem of food safety in Zambia does not lie in advocating an increase in the quanti ty of legislation but rather in its quality. There is a need to increase consumer awareness through food safety and quality consumer education programmes and the active participation of consumer groups in matters of food safety and control. Overcoming the problem of food safety requires the concerted efforts on the part of all key players, the government, industry and consumers themselves.
Comparative analysis of the defence of provocation.
(2000) Pather, Sivikalay.; Louw, Ronald.
No abstract available.
Battered women syndrome : a possible defence in South African law for women who kill?
(2000) Singh, Nerisha.; Louw, Ronald.
No abstract available.
The rights of prisoners under the South African constitution : compatibility with international norms and standards.
(2001) Mubangizi, John Cantius.; Nadasen, Sundrasagaran.; Devenish, George Edwin.
Prisoners' rights are human rights first. Any investigation of such rights has to have regard to that fact. In order to clearly understand the context within which prisoners' rights are provided for and protected or abused, a holistic approach is necessary. Accordingly, chapter one deals with introductory and histor ical perspectives. The magnitude of the problem under investigation is highlighted, the objectives of the study are outlined and the hypothesis is stated in these terms: The rights of prisoners under the South African Constitution are protected, observed and compare well with international norms and standards. A brief indication of the methodology of research is given and a literature survey undertaken. The chapter also deals with definitions and classifications wherein prisons and prisoners are defined and classified. An overview of the various justifications (purposes) of imprisonment is given and the chapter concludes with a survey of the origins and history of prisons and prisoners ' rights. As with all other human rights, the protection of prisoners' rights takes place at two levels: the domestic and the international level. A study of prisoners' constitutional rights necessitates a basic understanding of certain aspects of international human rights law. Chapter two begins with an overview of international protection of human rights and proceeds to explain how international human rights norms can be enforced in domestic law. The larger part of the chapter is dedicated to the law governing international human rights protection for prisoners . The instruments providing for such protection are outlined and discussed. The application and interpretation of such instruments are also examined. It is then concluded that, in spite of the problems inherent in the enforcement of human rights standards through international mechanisms, international law plays an important role in the protection of prisoners' rights. Chapter three provides a detailed discussion of the rights of prisoners as provided for under section 35 of the Constitution of the Republic of South Africa (Act 108 of 1996). The discussion is enhanced and reinforced with case law illustrating the approach taken by the courts in interpreting and applying the said rights. Other constitutional rights relevant to prisoners are also discussed together with the pertinent case law. It is then concluded that the introduction of a Bill of Rights in the Constitution has brought a new dimension and challenge to the protection and realisation of prisoners' rights in South Africa. It is also concluded that the courts, especially the Constitutional Court, have risen to the challenge in attempting to give some effect and meaning to the rights of prisoners brought about by the new constitutional order. In an effort to place South Africa in a regional context, chapter four adopts a comparative approach. The rights of prisoners in various African countries are discussed. The countries include Zimbabwe, Zambia, Namibia and Uganda. Prisoners' rights under the constitutions of each country are first outlined. This is followed by a discussion of the approaches taken by the courts in interpreting those rights and then the views of observers regarding the protection of prisoners' rights in those countries are outlined. The conclusion is that at least on paper and in terms of judicial practice, the rights of prisoners in South Africa enjoy more constitutional protection than in other African countries. The focus of chapter five is on the investigation regarding the extent to which prisoners' rights in South Africa are implemented and protected in actual practice. The chapter contains an analysis of the statistical data obtained through field study based on prisoners' perceptions of the realization of their constitutional rights. In analysing the data, statistical illustrations are used. Statistical methods are also used in testing the hypothesis. The main conclusion of the study is that the constitutional rights of prisoners in South Africa are not sufficiently protected and implemented. This and other conclusions and recommendations are set out in chapter six. The thrust of the conclusions and recommendations is that something has to be done regarding police brutality, prison conditions and overcrowding, juvenile offenders, mentally ill prisoners , ratification and incorporation of relevant international human rights instruments and access to courts. Suggestions on how to address these issues are made. Other recommendations include abolishing the privilege system in prisons, increasing the role of NGO's, provision of education and public awareness, privatization of prisons and legislative intervention .
The future of clinical legal education in Lesotho : a study of the National University of Lesotho's legal education and its relevance to the needs of the administration of justice in Lesotho.
(2002) Letsika, Qhalehang A.; McQuoid-Mason, David Jan.
No abstract available.
An evaluation of the role of United Nations civilian and military peacekeepers, with particular reference to conflict management training in the SADC region.
(2002) Ogunsanya, Vivian Oluwakemi.; Rycroft, Alan John.
No abstract available.
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.
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.

Browse

Browsing Advanced Criminal Justice by Issue Date