Doctoral Degrees (Advanced Criminal Justice)

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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.
A critical appraisal of Africa's response to the world's first permanent International Criminal Court.
(2011) Du Plessis, Maximillian.
Abstract not 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 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.

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