Doctoral Degrees (Criminal Law)

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    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.
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    Seeking the best forum to prosecute gender-based violence in armed conflict situations in Africa.
    (2018) Ashiru, Margaret Olatokunbo.; Du Plessis, Maximillian.; Bosch, Shannon Joy.
    Sexual and gender-based violence (SGBV) has been a common feature of war, in armed conflict situations. This is particularly so on the African continent where sexual and gender-based crimes (SGBCs) are prevalent. Previously thought of as an unavoidable feature of war, it is now realised that SGBV is used as a weapon of war by perpetrators of these crimes. For years, SGBCs were marginalised and overlooked as they were not prosecuted as crimes in their own right. It was through the work of many feminists’ striving to have these crimes recognised and prosecuted in their own right, that these crimes were included as crimes in their own right in statues such as the International Criminal Tribunal for Rwanda and the Rome Statute. Though SGBCs were included as crimes in their own right in the Rome Statute, this did not necessarily mean that these crimes were tried and when tried, there is no assurance that they would be successful prosecuted. As a result, it is necessary that SGBCs committed during armed conflicts are prosecuted at the international, regional and domestic levels so that the impunity gap for these crimes is closed. This thesis therefore considers the prosecution of SGBV committed during armed conflicts in Africa at the International Criminal Court (ICC), regional (proposed African Court of Justice and Human and Peoples’ Rights) and domestic level (using the Democratic Republic of Congo as the case study). This is with a view to assessing whether these three forms of justice will bridge the impunity gap in bringing prosecutors to account and/or complement each other. The end result of this is to deter the occurrence of the above mentioned crime in Africa.
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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.