ItemJustice for juvenile offenders under the new amended legal framework of the Child Justice Act.(2022) Naicker, Monishaa.; Mofokeng, Lesala Lucas.Juvenile justice has come a significantly long way in South Africa as separate system of law, which operates to specifically deal with children in conflict with the law based on international and regional instruments. While South Africa has undoubtedly sought to protect the rights of children who come into conflict with the law, there is still much room for further development and proper application of these laws. Recently the new amended Child Justice Act was passed and is awaiting promulgation. The amendments will enable the assessment of the criminal capacity of juveniles be dealt with in a more effective manner with the assistance of the police and probation officers. The policy of Diversion will also be at the forefront of facilitating the speedy process of juvenile offenders where possible. The issue of sentencing remains contentious, as juveniles are consistently sentenced to lengthy terms of imprisonment without the presiding officers having sufficient information to make a proper evaluation of an appropriate sentence. The Child Justice Act must be amended to include an in-depth sentencing policy in order to ensure that juveniles are afforded proper justice as per the vision imparted in the preamble of the Act. ItemIllicit financial flows: the reason Africa is debtor to the rest of the world.(2021) Govender, Devandran.; Gevers, Christopher Carl.Multinational companies engaging in commercial transactions or activities are responsible for 60% to 65% of illicit financial flows that leave Africa. Although on average Africa experienced a 5% annual economic growth for the last decade, the problem is, Africa experiences huge challenges to use domestic resources for investments. GFI estimated that trade mis-invoicing makes up the largest portion of illicit financial flows. The problem is that the global legal system aimed at tackling illicit financial flows is based on the idea that the issue should be addressed by the domestic courts. This idea is not practical since illicit financial flows consist of the acquisition and the cross-border transfer of funds. The objective of this study is to explore the magnitude and manner in which trade mis-invoicing contributes to illicit financial flows and provide a solution to such problem. The study objectives will be achieved by researching the most recent data from domestic and international sources. The findings of this study indicates that the Malabo Protocol, which is a regional instrument offers the most practical solution for the illicit financial flows from Africa. ItemA critical analysis of the offence of rape in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007: identifying challenges and providing solutions thereto.(2021) Hlongwane, Nompumelelo Portia.; Khumalo, KhulekaniThis study examines the reformation of rape laws in South Africa and challenges two inadequacies which are the result of the statutory definition of the offence created by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The first inadequacy being challenged is the retention of consent as an element of the offence. The second inadequacy is the bundling together of all acts of sexual penetration under the label of rape, which arguably infringes the principle of fair labelling. In the course of raising the above mentioned challenges, the present study also offers possible solutions to the impugned aspects of the offence. ItemTen 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. ItemPreliminary inquiries in children in conflict with the law: protection or prejudice.(2020) Latchman, Yaseera.; Subramanien, Darren Cavell.Preliminary inquiries come under the guise of the protection of the best interests of the child in conflict with the law. This process could however be more prejudicial than protective. This paper will explore whether the child facing the inquiry is at a greater degree of prejudice than the supposed protection the legislation offers. The paper will further consider the absence of legal representation at the preliminary inquiry stage of proceedings and the harm this can potentially cause to the child in conflict with the law. The Child Justice Act is contrasted with the Criminal Justice Act and what is actually in the best interest of the child is considered. ItemAn evaluation of the effect of mandatory minimum sentencing legislation on judicial discretion in South Africa.(2021) Maharaj, Vijay.; Hoctor, Shannon Vaughn.This research project deals with the effect of mandatory minimum sentencing legislation on judicial discretion in South Africa, where courts have historically had carte blanche to exercise their considerably broad judicial discretion when sentencing offenders. This judicial discretion was significantly curtailed by the advent of the Criminal Law Amendment Act 51 of 1997, and subsequent amendments thereto. The legislation commenced on 1 May 1998 and is still currently in effect. The legislation was enacted in response to an increase in violent crime at that time, and prescribes mandatory sentences for murder, aggravated robbery, rape, as well as for serious financial crimes and others. The courts are thought to be contemptuous and repugnant towards this legislation as it significantly curtails their judicial discretion. Whilst the general public were initially appeased by the impact of this legislation, many detractors felt this amounted to a harsh sentencing regime, calling for these laws to be abolished during the 23 years of its operation. This is a qualitative study and is based largely on a critical analysis of information gathered from the source material in order to identify gaps and trends in the field of interest. The questions, arguments and debates arising from the chosen focus area are located in both the literature and case law. The research design utilised is desktop research, which relies on secondary data, which are already in existence, including government publications, published or unpublished information available from either within or outside an organization, data available from previous research, online data, case studies, library research, and the Internet in general. The research will clearly enunciate the current legislative and judicial positions and advance convincing arguments and viewpoints from an array of distinguished writers and commentators. Various writers agree that South Africa is in dire need of reforming its sentencing system and believe that mandatory minimum sentencing has failed to adequately address sentencing problems in South Africa, deter violent crime or reduce sentencing disparities. They opine that many individuals within the judicial and criminal justice systems are disgruntled with the current regime, resulting in attempts to circumvent and thus undermine the entire mandatory minimum sentencing scheme. ItemThe crime of genocide under international and South African law: a critical race perspective.(2019) Moodley, Celeste Jadine.; Gevers, Christopher Carl.The racial politics of international criminal law has been the subject of controversy for a considerable amount of time. The conceptualization of “race” in the crime of genocide has, in particular, been persistently problematic. Apart from having avoided interpreting “race” in the crime of genocide altogether in some instances, international tribunals and authors have developed inconsistent and ambiguous methods of interpretations for genocidal acts committed against a racial group. As a result, international criminal law has produced interpretations of “race” in the crime of genocide that have fallen short of the strict rules of legal interpretation. Further, such interpretations have been inconsistent with both the very specific historical production of “race” and “racism” and the very specific way in which racial hegemony continues to shape contemporary law and society. In light of this, this study proposes an alternative theorisation of “race” for the crime of genocide using a Critical Race Theory perspective. Complementary to this endeavor, this study particularly considers South Africa’s unique race discourse and its possible implications for the interpretation of genocidal acts committed against a racial group in South Africa. ItemFirearm control in South Africa: the implications of not allowing a citizen to possess a firearm, for the purposes of self- defence.(2019) Naicker, Lereshin.; Singh, Sandhiya.; Baqwa, Dumile.Violent crime in South Africa is at an all-time high. In South Africa, scholarly studies suggest that a firearm is mainly used in the commission of violent crimes. Police interventions and legislation aimed at curbing this pandemic, are argued to be ineffective and do not deal with the increasing proliferation rate of both legal and illegal firearms in South Africa. Due to the high violent crime rate, citizens begin to feel their lives are in danger and acquire a firearm for the purposes of self-defence. The possession of a firearm for the purposes of self-defence then becomes a contributory factor that increases the proliferation rate of illegal firearms in the country. Criminals rob firearm owners of their firearm and then use these firearms in the commission of future violent crimes. In order to address this contributory factor and the overall proliferation of firearms within the country, the state wished to enact The Firearms Control Draft Amendment Bill 2017. One of the major highlights from the Bill is the state’s intention to repeal Section 13 and Section 14 of the FCA. These two Sections allowed a law-abiding citizen to possess a firearm for the purposes of self-defence. In accordance with the purposes of the Bill, the states thinking was that by preventing citizens from owning firearms for self-defence, criminals will no longer be able to steal these firearms from citizens and use them in the commission of other violent crimes. The rationale was that there will be a decrease in the proliferation rate of firearms and the rate of violent crimes in the country. What the state failed to consider was that there were also other factors which contributed to the high proliferation rate of firearms in South Africa, and that these factors should be addressed first before enacting the Bill and preventing a citizen from owning a firearm for the purposes of self-defence. By rather suggesting that the Bill be enacted and that citizens no longer be allowed to own a firearm for the purposes of self-defence, certain rights that a citizen has would be infringed. This includes their right to life and the right to freedom and security of the person (specifically bodily integrity and the right to be free from all forms of violence). The Section 36 Analysis done in this study will show that the limitation on these rights is not reasonable or justifiable and that less restrictive means exist ,which should be utilized. ItemThe role of restorative justice in the sentencing of adult offenders convicted of serious crimes: some reflections through the case law.(2020) Govender, Shamla.; Hoctor, Shannon Vaughn.No abstract available. ItemBalancing the right of the accused to access the police docket with the duty of the state to prosecute: an analysis of the impact of the Constitution.(2019) Ngobane, Yolokazi.; Whitear-Nel, Nicola Jane.Prior to the constitutional dispensation, South Africa was under parliamentary sovereignty and as a result, the right of access to the police docket was unprecedented. When the 1993 Constitution came into effect, it granted South African citizens several rights which were mostly derived from international instruments. Furthermore, the state transitioned from parliamentary sovereignty to constitutional supremacy. Constitutional supremacy guarantees that the rights entrenched in the Constitution take precedence before any other legislation or case law. Consequential to this transition, the court set new precedence by declaring blanket docket privilege unconstitutional. This dissertation examines the extent to which the accused is granted access to the information contained in the police docket. Both presiding officers and legal scholars have submitted that the accused is not granted unfettered access to the police docket. Upon careful examination of statutory provisions, relevant case law, journal articles and textbooks, it is clear that legislature has been very slow in enacting legislation aimed at regulating the right of access to the docket and this could have a negative effect on the accused, especially those without counsel. As it stands now; this right is too complex for laypersons to understand. This dissertation concludes that accused persons must be afforded an opportunity to examine the contents of the police without all the red tape that surrounds such access. ItemAn analysis of spousal competence and non-compellability in terms of section 198 of the Criminal Procedure Act 51 of 1977.(2018) Lazarus, Melissa.; Khan, Franaaz.Marital privilege to be or not to be that is the question? The origins of marital privilege dictate that it has been founded on the biblical principles of the sacredness of the union between man and wife. So holy is this union that wives could not betray their husbands as they would be betraying the God-ordained marital union. As a result, wives were not competent or compellable witnesses against their husbands. Over the years the privilege has been developed in English common law where wives were declared to be competent and later non-compellable subject to exception only when an accused spouse has been charged with an offence that falls within a specific category. South Africa has adopted marital privilege from the English common law and has since codified it through the enactment of Section 198 of the Criminal Procedure Act 51 of 1977. According to this section spouses cannot be compelled to testify against each other unless the crime for which the accused spouse is charged with appears in the categories listed in Section 195 of the Criminal Procedure Act. This study examines the particular sections that pertain to spousal non-compellability. In so doing it highlights the development of the privilege in English common law and South Africa. There are many criticisms that are levied against affording a privilege to a particular class of persons. The most prevailing argument is that the non-compellability exception given to spouses is unconstitutional because it violates the right to equality in terms of section 9 of the constitution. This study examines the merits of this argument and reaches the conclusion that spousal non-compellability fails to withstand the test against unfair discrimination on the basis of marital status. It is a provision which fails to acknowledge the ever changing needs of a modern society in which we no longer have a one dimensional view of what may constitute a marital relationship. To this end the privilege does not take into account same sex couples, co-habitants and those persons that cannot get married legally. While it may be necessary for spouses and same sex couples to confide in each other without having to be fearful that their communications could be subject to testimony in court, to allow the privilege to remain in existence in its current form is to perpetuate unfair discrimination and inequality within our constitutional democracy. This creates an undesirable situation and therefore demands action in the form of reforming the privilege rather than a total abolishment of the exception. This study seeks to put forth recommendations in this regard by examining the nature, genesis and evolution of spousal competence and non-compellability in South African law. ItemUnderstanding the legal principle of dolus eventualis in the context of fatalities arising from motor vehicle collisions.(2019) Reddy, Dhamien.; Reddi, Managay.No abstract available. ItemVictim precipitation in the crime of rape: does it still feature as an evidentiary tool and barrier to reporting and convictions in South Africa. A case analysis.(2018) Enigbokan, Omotunde Omotayo.; Bhamjee, Suhayfa.; Toohey, Jacintha Deleane.No abstract available. ItemSection 174 of the Criminal Procedure Act 51 of 1977 : does the interests of justice and the outcome in S v Dewani herald that it is time to eject this provision from our law?(2017) Chetty, Aaliyah.; Reddi, Managay.Section 174 of the Criminal Procedure Act 51 of 1977 encompasses the right of an accused to be discharged from the offence he has allegedly committed where, at the close of the State’s case, there is no evidence on which the court may draw the accused to the charge. The section and its forerunners have dwelled in South African law for some time. In the first instance, the discharge provision was used as an instrument to prevent the jury from reaching perverse decisions. Nevertheless, despite the abolition of the jury system of adjudication in South Africa in 1969, there is no doubt that the section ensures that the accused’s fair trial rights are fulfilled. However, though discharge may seem like a straightforward task for a judge who, at the close of the State’s case, has a sense of the strength of the allegations against the accused, it is far from this. Over the years, South African courts and scholars have grappled with the interpretation of the section, more especially with the words ‘no evidence’. Furthermore, there have been countless debates on the standard of evidence and the role ‘credibility’ should play at the discharge stage of the proceedings. As a result, there is evidence, fairly recently from the outcome in S v Dewani  JOL 32655 (WCC), which suggests that courts do not fully understand and appreciate the extent of their role in deciding to discharge an accused. Thus, the aim of this dissertation is to critically analyse s 174 of the Criminal Procedure Act 51 of 1977 in respect of its interpretation, its history and its operation in another jurisdiction, and produce a meaningful interpretation which would restore purpose to the section in South Africa. Furthermore, the case of S v Dewani will be thoroughly analysed as it is a recent application of s 174 of the Criminal Procedure Act 51 of 1977. ItemA comparative study pertaining to the laws of Germany and America in respect of the test for dolus eventualis with a specific focus on the crimes of murder and culpable homicide.(2017) Hagglund, Kirstin Beverley.; Khan, Franaaz.Dolus eventualis has correctly been described as an ‘enigma’. Not only has it been variously described by the courts, but they have applied the two-stage test, the cognitive and conative component, without providing an in-depth analysis of it means. Both dolus eventualis required for murder and conscious negligence required for culpable homicide contain an element of subjective foresight of the remote possibility of death occurring. As a result, the distinction between murder and culpable has become confused over the years, evident in the courts vacillating between findings of murder and culpable homicide. Regarding the cognitive component, the lack of clarity lies in the degree of foresight which is required, and with regard to the conative component, not only has it been variously described, but it is labelled ‘an unnecessary appendage’. Considering this lack of clarity, there exists a need to examine the test for dolus eventualis in the case of murder and to determine whether it can be distinguished from culpa, in the case of culpable homicide. German law is faced with the same lack of clarity when trying to demarcate bedingter Vorsatz from bewuste Fahrlassigkeit, the equivalent of South African dolus eventualis and conscious negligence respectively. American law is also faced with difficulties when trying to distinguish cases of manslaughter, the South African equivalent of culpable homicide, from ‘extreme indifference’ murder which occurs under substantially the same circumstances as dolus eventualis. Therefore, South African, German and American law and academic opinion is consulted to establish how the respective countries have dealt with the conflation of murder and negligent killings. This has been done by conducting desktop-based (digital and manual) research. From the findings of the research, the current test for dolus eventualis cannot properly be distinguished from cases of culpable homicide and should be reformulated to include foresight of a real, reasonable or substantial possibility of death ensuing. This creates a higher standard of proof which is appropriate for the seriousness of the crime of murder and allows for the contentious conative component to be dispensed with. However, if death was not foreseen as probable, it needs to be asked whether the accused’s conduct offends the legal system to cover those situations in which the accused’s conduct has no social utility and displays an extreme indifference to the value of human life. ItemThe right to a fair trial; an analysis of s342 (a), s168 of the Criminal Procedure Act and a permanent stay of prosecution.(2017) Ngalo, Londeka Zandile.; Van der Merwe, Eben.Abstract not available. ItemCultural defences in an open and democratic South Africa with specific reference to the custom of ukuthwala and belief in Witchcraft.(2016) Nzimande, Wandisiwe Patricia.; Hoctor, Shannon Vaughn.The Constitution of the Republic of South Africa guarantees the right to culture for all its citizens and guarantees non-discrimination on account of religion, conscience, belief and culture. Culture shapes our identity; influence our reasoning, perception and behaviour therefore culture should be a crucial consideration when determining a person’s criminal liability. This paper is based on a notion that conduct of an individual can be seen as an indigenous belief or custom in terms of African customary law but at the same time be considered a crime in terms of our common law and statutory law. This paper will be dealing with the controversial custom of ukuthwala and the belief in witchcraft. This paper will seek to demonstrate that conduct of an accused who thwalas a girl with the honest and bona fide intention to secure a wife under the custom of ukuthwala, where the accused had a genuine yet mistaken belief that his conduct was justified under the custom of ukuthwala his mistaken yet genuine belief may exclude the element of mens era. This paper will further seek to demonstrate that in witchcraft related offences where the belief in witchcraft and the belief in the supernatural is the motivation for the commission of the offence such belief have the potential of excluding the perpetrator criminal liability. Therefore this paper seeks to demonstrate the importance of the recognition of a cultural defence in an open and democratic South Africa. ItemThe effect of sentencing HIV-positive offenders to imprisonment.(2016) Manyathi, Linda Lydia.; Hoctor, Shannon Vaughn.South African correctional centres are overcrowded. There is high-risk sexual behaviour and a lack of nutritious diet, all of which contributes to increasing THE level of stress among inmates. This negatively affects the immune system. These correctional centre conditions are harsh, even to HIV-negative inmates, how much more SO to those who are HIV-positive. The typical lifespan of an HIV-positive person is 10 to 15 years, though, with the aid of ARVs, it can be prolonged. However, in order for ARVs to be effective one must exercise and eat a balanced diet. Re-infection, lack of exercise, lack of nutritious meals and high stress significantly reduce the effectiveness of ARVs. Therefore, offenders who are known to be HIV-positive and are then sentenced to life imprisonment are less likely to serve their full sentence. With overcrowding, HIV-related illnesses easily spread to other inmates and, to make matters worse, high-risk sexual behaviour increases the possibility of infection to HIV-negative inmates. The Correctional Services Act provides that correctional institutions should make provision for: adequate accommodation, nutritious meals, segregation of inmates for medical reasons, safe custody, hygienic living conditions and health care. But, with the prevailing correctional centre conditions of overcrowding, malnutrition, lack of exercise and sexual abuse, it is clear that the Department is failing to deliver on the mandates given to it by the Correctional Services Act. The result of this is that imprisonment for HIV-positive offenders becomes a very difficult experience, as overcrowding leads to low security, bed-sharing and the survival of the fittest. Overcrowding further gives power to gang activities within the correctional centres, because the conditions of low security require that inmates provide their own security, which is paid for at the cost of sexual favours and tattoos which may involve contaminated blades. This exposes other inmates to HIV infection and those who are already infected become re-infected. Sentencing offenders that are known to be HIV-positive to imprisonment promotes the spread of HIV within correctional centres and into the general public. South Africa has the highest HIV infection rate in the whole world. The United States is looked at for possible solutions for curbing the spread of HIV, as there is no sentence that will suit such offenders. This dissertation seeks to investigate possible measures that can be implemented in South African correctional centres to ensure that the spread of HIV in correctional centres is limited. ItemA re-orientated approach towards understanding white collar crime and its impact on South Africa as a developing country.(2015) Munien, Gonaseelan.; Reddi, Managay.Abstract not available. ItemWill a restorative justice approach to sentencing improve the efficacy and functioning of the criminal justice system?(2015) Delomoney, Devani.; Hoctor, Shannon Vaughn.No abstract available.