Repository logo

Masters Degrees (Criminal Law)

Permanent URI for this collection


Recent Submissions

Now showing 1 - 20 of 20
  • Item
    A critical evaluation of the doctrine of common purpose in South African law.
    (2013) Walker, Shelley Anne.; Hoctor, Shannon Vaughn.;
    Although South African law adopted the doctrine of common purpose from 19th century English law, the scope of the doctrine has been considerably extended. Whereas English law required presence at the time of the crime, in pursuance of a conspiracy to commit the crime in concert, South African law has dispensed with the need for all these requirements to be met. Thus, where there is a prior conspiracy, South African law does not require presence at the time of the crime, or an actual contribution towards its execution. Where there is presence at the time of the crime, it is unnecessary to prove a prior conspiracy, or an actual contribution towards the execution of the crime. All that is required is unilateral conduct showing solidarity with the conduct of the actual perpetrator. South African law has also dispensed with the need to establish the scope of a common purpose as a matter of objective fact. It is only necessary to prove association in a criminal enterprise of some kind, coupled with the necessary mens rea for the crime. This means that liability for a serious crime like murder can arise from a relatively trivial act of association, which in no way contributed to the death of the deceased, or encouraged or facilitated the commission of the crime. This is an unacceptable departure from the principles of normative criminal justice, which require liability and punishment to be commensurate with personal culpability. Although the normative basis for the doctrine was originally thought to lie in the principles of mandate, mandate cannot offer a tenable justification for the doctrine in its present extended form. It is argued that there is in fact no normative basis for the doctrine in this form. The only justifications that remain are instrumental in nature. The lack of a normative basis for the doctrine is inimical to a rational, systematic and principled approach to the law, whilst disregard for the principles of culpability, fair labelling and proportionality in punishment is unacceptable in a constitutional dispensation concerned with protecting fundamental human rights. At the same time, instrumental justifications for the doctrine are unconvincing. It is accordingly submitted that the South African law of complicity is in need of reform to render it constitutionally compliant.
  • Item
    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.
  • Item
    The role of public participation in landfill management: a community case study.
    (2018) Marnewick, Gillian.; Kidd, Michael Anthony.
    No abstract available.
  • Item
    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.
  • Item
    The right to remain silent : an unfair advantage.
    (2017) Khedun, Chantal Bodha.; Reddi, Managay.
    Abstract available in PDF file.
  • Item
    What constitutes 'substantial and compelling circumstances' in the mandatory and minimum sentencing context?
    (2016) Njoko, Thulisile Brenda.; Hoctor, Shannon Vaughn.
    No abstract available.
  • Item
    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.
  • Item
    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.
  • Item
    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.
  • Item
    An alternative approach to dolus eventualis.
    (2016) Tsuro, Janet Audrey.; Hoctor, Shannon Vaughn.
    Abstract not available.
  • Item
    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.
  • Item
    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.
  • Item
    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.