Academic literature on the topic 'Criminal law – South Africa'
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Journal articles on the topic "Criminal law – South Africa"
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Rumney, Philip N. S., and Charnelle van der Bijl. "Rape, Attitudes, and Law Enforcement in South Africa." New Criminal Law Review 13, no. 4 (2010): 826–40. http://dx.doi.org/10.1525/nclr.2010.13.4.826.
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This article examines the nature of social attitudes toward adult rape in South Africa and the ways in which they may influence the response of criminal justice professionals to cases of rape. Tis article draws on a small study of law students who completed a questionnaire that sought to examine specific beliefs regarding rape victims and their behavior during and following rape. Te questionnaire examines issues that do not appear to have been explored within attitude surveys thus far in South Africa. Te findings from this survey, along with the wider research literature on attitudes toward rape, suggest that rape myths and stereotypes are widespread in South African society and that they are also shared by some criminal justice professionals. Te article also notes some encouraging trends in South Africa. In particular, the judiciary has shown clear disapproval of the institutional failure to protect victims of rape and sexual assault. Te judiciary has also explicitly rejected myths pertaining to the behavior of rape victims, which will be discussed in this article. Although these trends are encouraging, there remains a clear need to address the problem of rape myths and stereotypes both in the general population and within the criminal justice system.
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Werle, Gerhard, and Moritz Vormbaum. "African States, the African Union, and the International Criminal Court : A Continuing Story." Volume 60 · 2017 60, no. 1 (January 1, 2018): 17–42. http://dx.doi.org/10.3790/gyil.60.1.17.
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This article analyses the strained relationship between African States, the African Union, and the International Criminal Court. It starts by scrutinising the allegations of ‘anti-Africa bias’ that the African Union and some African States have voiced towards the International Criminal Court. Then it looks at the threat of a pull-out of certain African States parties from the ICC Statute after Burundi, South Africa, and The Gambia declared in October 2016 that they were planning to withdraw from the Court. Finally, it analyses the Malabo Protocol, an initiative by the African Union which aims to create criminal chambers in the African Court of Justice and Human and Peoples’ Rights, simply put: an ‘African Criminal Court’.
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De Wet, S., and J. Visser. "DNA Profiling and the Law in South Africa." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 14, no. 4 (June 8, 2017): 170. http://dx.doi.org/10.17159/1727-3781/2011/v14i4a2587.
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DNA evidence is currently at the forefront of the arsenal of evidence employed in criminal trials. To ensure its optimum use in criminal proceedings, it is imperative that the legal fraternity is properly conversant with the scientific basis and presentation of such evidence, as well as with its potential pitfalls. In an effort to provide the legal profession with a background to this complex and useful type of evidence, this article looks at the biochemical nature of DNA, at DNA profiling and its use in criminal trials, and at the processes of DNA collection and analysis in the Biology Unit of the Forensic Science Laboratory of the South African Police Service. The presentation of DNA evidence in court is then evaluated and the future of DNA evidence, including legislative reform, and the creation of a DNA database are discussed.
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Mosaka, Tshepo Bogosi. "The Black Flame (part two): Snyman’s Criminal Law." South African Journal of Criminal Justice 34, no. 3 (2021): 442–60. http://dx.doi.org/10.47348/sacj/v34/i3a2.
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This is the second of a trilogy of papers (entitled after WEB du Bois’s trilogy of novels titled The Black Flame) reviewing Snyman’s Criminal Law. The decision to commence working on the review was made after encountering the unprecedented section on African customary law in the latest edition of the book. This is a major achievement for this work that promises an exciting change of direction. This paper focuses on four areas in which the book can proceed further into this new direction. These include: (i) a comprehensive clarification of the underlying jurisdictional complexity within which South African criminal law (as inheritor of Roman-Dutch and English law) currently finds itself; (ii) the comparative nature and source of Snyman’s preferred arrangement of his general principles of criminal liability; (iii) the brief account of legal history in the introductory section; and (iv) the section on African customary criminal law. The overall argument made is that a northbound-gazing criminal law scholarship makes comparative criminal law between South Africa and European jurisdictions virtually impossible. The next edition of Snyman’s Criminal Law will be served better by a comparative focus on African jurisdictions and less on Europe.
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Pillay, Judge Navi. "South Africa’s Engagement with International Human Rights Law." Stellenbosch Law Review 2021, no. 3 (2021): 356–85. http://dx.doi.org/10.47348/slr/2021/i3a1.
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The commitment to human rights is the cornerstone of the Constitution of the Republic of South Africa, 1996. However, South Africa’s human rights record in the international community often stands in stark contrast to its constitutional commitment to human rights. In both international and regional contexts, South Africa has demonstrated an inconsistent approach to foreign policy that is often guided more by political considerations than by a principled commitment to advancing human rights. This lecture provides an overview of South Africa’s engagement with international human rights law in the constitutional era and evaluates its human rights record in the international arena in a diverse range of fields. These fields include South Africa’s record of human rights protection in peace and security operations on the African continent; its record as a member of the UN Security Council and Human Rights Council; the assessment of its performance by UN human rights treaty bodies; and its record in respect of the Covid-19 pandemic, international criminal justice, the death penalty, and the arms trade. The lecture draws on Judge Pillay’s extensive experience in international law, including as President of the International Criminal Tribunal for Rwanda, Judge at the International Criminal Court in The Hague and former UN High Commissioner for Human Rights.
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Mosaka, Tshepo. "The Black Flame (part one): Snyman’s Criminal Law." South African Journal of Criminal Justice 34, no. 2 (2021): 214–30. http://dx.doi.org/10.47348/sacj/v34/i2a3.
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The latest edition of Snyman’s Criminal Law has reached the status of scholarly immortality. It has been revised by Hoctor, but Snyman’s name lives on. This is consistent with the argument made in Part one of the review of this book. This is a review conducted through a trilogy of papers, analogous to WEB du Bois’s trilogy of novels entitled the Black Flame. Part one begins by clarifying why this review is conducted in this way. The paper then proceeds to contextualise Snyman’s Criminal Law alongside the two dominant traditions of South African criminal law, following the work of Gardiner and Lansdown and De Wet and Swanepoel. Thirdly, the paper concludes by developing the argument that South African criminal law remains in a perpetual northbound-gaze towards Europe and away from Africa. This theme is developed further in Parts two and three of this review.
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Kawadza, Herbert. "Reconsidering criminal law-based liability for corporations and directors in South Africa." Journal of Financial Crime 26, no. 4 (October 7, 2019): 1085–94. http://dx.doi.org/10.1108/jfc-07-2018-0070.
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Purpose It is recognised that the mere proscription of corporate offences is not adequate to deter misconduct or engender compliance. There is a need for the enforcement of the rules through robust culture-changing sanctions. The purpose of this paper is to demonstrate the inadequacies of criminal law liability in ensuring compliance with ethical corporate conduct in South Africa. Design/methodology/approach This paper is purely qualitative. For expository purposes, it draws from the Criminal Procedure Act, 51 of 1977 as well the corporate criminality enforcement trends and data from the National Prosecutions Agency’s annual reports to demonstrate that much as criminal liability is enshrined in a statute it has, however, not yielded the expected results. It situates the debate within the broader economic criminological scholarship. Findings This paper argues that even though the option of prosecuting corporations and directors is part of South African law, many corporate offences are not brought into the criminal justice system. Judging by its erratic imposition, criminal liability has failed to express the indignation and condemnation that are normally attached to criminal sanctions. Several reasons account for this. These include evidentiary, legal, technical and definitional complexities of some corporate offences, which lead to them being regarded as “unprosecutable crimes”. This has a negative impact on enforcement. Originality/value This paper is novel because it approaches the debate from a fresh perspective, economics and criminology. Not much scholarly attention has been devoted to analysing the efficacy of criminal sanctions in the South African context. This paper attempts to fill that gap.
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Dugard, John. "Southern Africa Litigation Centre v. Minister of Justice and Constitutional Development (N. Gauteng High Ct., Pretoria)." International Legal Materials 54, no. 5 (October 2015): 927–44. http://dx.doi.org/10.5305/intelegamate.54.5.0927.
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In June 2015, President Omar Hassan Ahmad Al Bashir of Sudan attended a meeting of the African Union (AU) in Johannesburg, South Africa, despite the fact that a warrant had been issued for his arrest by the International Criminal Court (ICC) for the commission of war crimes, crimes against humanity, and genocide in the Darfur region. Although South Africa, a party to the ICC, was obliged to arrest Al Bashir and surrender him to the ICC under the terms of the Rome Statute of the ICC, the South African government made no attempt to apprehend him. On the application of a South African public interest law firm, the North Gauteng High Court ordered that the government was required by law to arrest and detain Al Bashir. Al Bashir was, however, allowed to leave South Africa.
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Kramers-Olen, Anne. "The defence of sane automatism and non-pathological criminal incapacity in South Africa: an epistemological intersection between psychology and law." South African Journal of Psychology 49, no. 2 (April 15, 2019): 188–98. http://dx.doi.org/10.1177/0081246319843228.
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Psychologists and psychiatrists are frequently requested to offer expert opinion regarding the defences of non-pathological criminal incapacity and sane automatism – which are increasingly raised in criminal courts in South Africa. This article briefly explores the development of these defences in South African criminal law and highlights some of the conceptual and epistemological difficulties at the intersection between the law and psychology. The changing legal understandings of the concepts of sane automatism and non-pathological criminal incapacity require careful consideration by mental health experts, and, while these experts can undoubtedly assist the courts, they should be cautious of using reductionist methods to conflate psychological concepts with legal concepts.
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Van der Merwe, Hermanus J. "The Prosecution of Incitement to Genocide in South Africa." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 5 (May 17, 2017): 327. http://dx.doi.org/10.17159/1727-3781/2013/v16i5a2436.
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The inchoate crime of direct and public incitement to commit genocide was first recognised under the Convention on the Prevention and Punishment of the Crime of Genocide (1948). The creation of the crime was a direct result of the horrific effects of acts of incitement before and during the Second World War. Today the crime is firmly established under international law and is also criminalised in many domestic legal systems. History shows that incitement to crime and violence against a specific group is a precursor to and catalyst for acts of genocide. Consequently, the goal of prevention lies at the core of the prohibition of direct and public incitement to genocide. However, it may be said that this preventative objective has thus far been undermined by a general lack of prosecutions of the crime, especially at the domestic level. This prosecutorial void is rather conspicuous in the light of the new vision of international criminal justice under which domestic legal systems (including that of South Africa) bear the primary responsibility for the enforcement of the law of the Rome Statute of the International Criminal Court (Rome Statute), which in Article 25(3)(e) includes the crime of direct and public incitement to commit genocide. This article provides a brief historical and teleological overview of the crime of direct and public incitement to commit genocide under international law, as well as the definitional elements thereof as interpreted and applied by the International Criminal Tribunal for Rwanda (ICTR). Thereafter it examines the criminalisation of incitement to genocide in contemporary South African law in order to assess South Africa’s capacity to prosecute incitement to genocide at the domestic level. In this regard there are, in theory, various 'legal avenues' for the prosecution of incitement to commit genocide in South Africa, namely: as a crime under the Riotous Assemblies Act 17 of 1956; as a crime under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act); or as a crime under customary international law pursuant to section 232 of the Constitution of the Republic of South Africa, 1996. The article reflects critically on the viability of prosecuting incitement to genocide in terms of each of these alternatives. The article highlights a number of practical and legal problems as regards the prosecution of incitement to commit genocide under the Riotous Assemblies Act as well as under customary international law. It is argued that the prosecution of incitement to genocide in terms of the ICC Act is preferable, as this would respond directly to an international consensus as regards the unique and egregious nature of genocide by providing for a limited form of extraterritorial criminal jurisdiction. Prosecution under the ICC Act would also reflect the objectives of the Rome Statute pursuant to which South Africa has certain international legal obligations. However, it is submitted that legislative amendment of the ICC Act is needed, since the crime is not explicitly provided for thereby at present. It is submitted that the legislative amendment must provide for the distinct crime of direct and public incitement to genocide in terms of South African criminal law. Such an amendment will remove the existing legal obstacles to the domestic prosecution of incitement to genocide and enable effective prosecution thereof at the domestic level. The proposed amendment will have the effect of strengthening the alignment between South African law and the objectives of the Rome Statute and may have preventative benefits in the long run.
Dissertations / Theses on the topic "Criminal law – South Africa"
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Teny, Jamual Peter Malual. "Comparing child justice legislation in South Africa and South Sudan." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/d1020941.
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The legal framework and legislation governing the rights of the children have become of great concern in modern societies, particularly, in the area of criminal justice and human rights. The Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child are basic international and regional conventions regulating the rights of the children and include how to deal with children in conflict with the law. States parties to these conventions are required to take appropriate measures, which includes enactment of legislation to give effect to these rights. Legislative instruments must address the following issues: The principle of the best interest of the child; the age of criminal responsibility; restorative justice; diversion; and the trials of children in conflict with the law. The above-mentioned instrument require and emphasise the use of an alternative approach in respect of the children who are in conflict with law. In this research a comparative approach is used to compare the South African and South Sudanese child justice legislative instruments. The legislative instruments pertaining to child justice in both countries are set out and compared. It is concluded that the South African legislative instruments are more aligned to the Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child. Recommendations and proposals are made to enact to adopt in South Sudan new legislative measures and provisions aim to afford more protection to children in conflict with the law and to strike a better balance between rights of a child and victim of crimes.
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Du, Plessis Jan Andriaan. "The impact of minimum sentence legislation on South African criminal law." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1020037x.
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The Criminal Law Amendment Act introduced a scheme where minimum sentences are prescribed for serious offences into the South African Criminal Law. The limitations put on the courts’ sentencing discretion were not received with unanimous approval from all quarters. The Constitutional Court declared the general working of the Act to be constitutional soon after its inception. Specific provisions pertaining to certain offences remained unpopular. The hefty sentence of 15 years imprisonment prescribed for the possession of a semi-automatic firearm is put forward as an example in this regard. High Courts avoid the minimum sentence prescribed for this offence by using different interpretational methods. Despite the sense of animosity towards the unfair contents of this provision, no ruling is made on the constitutionality thereof. An apparent deference towards the legislature could be detected on the part of the judiciary. South African jurisprudence discourages our courts to rule on the constitutionality of a law. It is only done when the defect could not be remedied by any other available means. The reluctance of our courts to make a ruling on the constitutionality of the semi-automatic provision does not promote legal certainty. High Courts attach different interpretations to the “true intention” of the legislature in order to bypass this provision. Logic dictates that inexperienced presiding officers with inferior interpretational skills would continue to hand down the minimum sentence while it remains on the law books. A sentence of fifteen years is also prescribed for robbery with aggravating circumstances. The existing common law on the interpretation of the definition of this offence provides for a wide range of human conduct to be included. Case law could be expected where the courts deviate from the prescribed sentence on a regular basis. This unscientific approach should be discouraged and a rethinking of the boundaries of this offence is suggested. The Act is doing more harm than good to our Criminal Law. The legislature could still provide other visible measures against serious crime without invading the sentencing discretion of the judiciary.
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Laing, Samantha Robyn. "The constitutionality of the Criminal Law (Forensic Procedures) Amendment Act." Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/18619.
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The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 came into operation in January 2015. The Act makes provision for the establishment of a National Forensic DNA Database, which will store DNA profiles of certain groups of people. This research will discuss the establishment of a forensic DNA database in South Africa. The legal position in the United States of America will also be considered, with specific reference to the states of Maryland, California and New York. This research will focus predominantly on the collection of DNA samples and profiles from arrestees. When such samples are allowed to be collected, what offences warrant the collection of such samples and the period within which the DNA samples need to be destroyed. Collecting DNA samples and profiles from certain persons could potentially violate particular rights in the Bill of Rights. The rights to privacy, bodily integrity, equality and human dignity are discussed as well as the approach the courts have adopted in dealing with such infringements or possible infringements. This research furthermore deals with the historical developments of DNA evidence and contains a brief discussion on expert evidence. This research also deals with the evidential value of DNA evidence, as well as possible problems faced by prosecutors and defence attorneys when dealing with DNA evidence. The Criminal Law (Forensic Procedures) Amendment Act is still very new, and therefore, there is not yet much case law in South Africa specifically dealing with the sections of the said Act. This research makes submissions and recommendations regarding certain sections of the Act, as well as the overall constitutionality of the Act.
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Sitole, Sizakele Elias. "A comparative analysis of mental illness as a defence in criminal law." Thesis, Nelson Mandela Metropolitan University, 2007. http://hdl.handle.net/10948/843.
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This dissertation deals with the comparative analysis of mental illness as a defence in criminal law. The mental illness / insanity defence is deemed applicable when the accused does not have mens rea or lacks criminal responsibility or is afflicted by the inability to appreciate the wrongfulness of his act and act accordingly, at the time of the commission of the offence due to a pathological disturbance of the mental faculties. A review of the law in South Africa, English Law and United States of America law was done with regard to their approach in connection with the matter. The legal systems of South Africa, English Law and the United States of America were compared and analyzed because English Law and United States of America are developed countries and I decided to compare their approach to insanity defence with reference to South Africa, which is a developing country. Similarities were drawn between South Africa and English Law and this could be attributed to the fact that South African law emanated from English law. This is an important research topic on comparative analysis of mental illness as a defence in criminal law. The law applicable today in South Africa in respect of the defence of mental illness is combined in the provisions of the Criminal Procedure Act 51 of 1977, which replaced the criteria as set out in the M’Naghten rules and the irresistible impulse test. In all the three countries law that were compared the burden of proof has always been on the accused to prove his case on a balance of probabilities but in South Africa the position now is he who alleges must prove because of the legislative amendments. United States of America law allows for the forcible medication with drugs of the mentally ill defendants who are charged with crimes so that they can be fit to stand trial. This is the only country in the ones that were analyzed, which practices such a barbaric and inhuman acts. In the USA , the defendant has the burden of proving the defence of insanity by clear and convincing evidence, and the finding in not guilty by reason of insanity, English law, South African law has the same finding in insanity cases. The most common diagnosis used in support of a defence of insanity continues to be schizophrenia in South Africa and in English law system. In the English law system, the Home Secretary has the power to order defendant to be detained in a hospital on the basis of reports from at least two medical practitioners that the defendant is suffering from mental illness, if the minister is of the opinion that it is in the public interest to do so. In South Africa, the accused will be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers. The detention of those found not guilty by reason of insanity could be challenged under the Human Rights Act in English law because the legal definition of insanity is far wider than the medical concept of mental disorder. The Drs under English Law have to use the legal, not the medical understanding of the mental disorder. The placing of a burden of proof on the defendant may be challengeable under European Convention of Human Rights as contrary to the presumption of innocence that is protected under convention. Finally this is a controversial subject on mental illness but the position in South Africa has been clear for a long time, and I did not come across any deficiencies in our law. I submit that South African law position on mental illness is good.
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Nzimande, Eric Sibusiso. "Minimum sentence legislation in South Africa." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/d1012041.
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Legislation regulating minimum sentences in South Africa was re-introduced by sections 51 to 53 of the Criminal Law Amendment Act 105 of 1997 which came into operation on 1 May 1998. These provisions were regarded as a temporary measure to be effective for two years, where after they were extended from time to time. After they had been extended for several times, section 51 was rendered permanent on 31 December 2007 by the Criminal Law (Sentencing) Amendment Act 38 of 2007. At the same time sections 52 and 53 were repealed by the same Act. Minimum sentence legislation was the result of a call by the community for heavier penalties and for the offenders to serve more realistic terms of imprisonment. There was also a general dissatisfaction about the perceived leniency of sentences imposed by the courts for serious crimes. During 1996 and in the wake of these concerns the Minister of Justice requested the South African Law Reform Commission to investigate all aspects of sentencing in South Africa. A Project Committee chaired by a judge of the High Court was appointed and it operated from the late 1996 to March 1998. Minimum sentences for certain serious crimes were one of the options to be investigated by the Project Committee. Consequent to this the Criminal Law Amendment Act 105 of 1997 was promulgated with effect from 1 May 1998. The legislature intended this Act to defer criminal activity, to avoid disparities in sentencing and to deal harshly with perpetrators of serious offences. The subsequent amendments to the Act included the granting of jurisdiction to the Regional court to pass life imprisonment, an automatic right of appeal against life imprisonment in respect of a juvenile accused and identification of circumstances that do not constitute substantial and compelling circumstances. Judicial discretion and departure from prescribed minimum sentences had initially presented a problem regarding its interpretation in a variety of cases in our courts. Eventually our courts came up with a clear interpretation of the meaning of the phrase substantial and compelling circumstances. This research project will analyze the provisions of the Criminal Law Amendment Act 105 of 1997 with regard to minimum sentences for certain serious offences. In the process case law and other literature will be discussed regarding the interpretation of minimum sentence provisions in the Act. Recommendations for legislation which will cover the aspect of sentencing on a wider scale are made.
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Mujuzi, Jamil Ddamulira. "Life Imprisonment in International Criminal Tribunals and Selected African Jurisdictions - Mauritius, South Africa and Uganda." Thesis, University of the Western Cape, 2009. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_7837_1268591893.
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The study has three major aims: To give a detailed discussion of the question of punishment and the three major theories or objectives of punishment &ndash
retribution, deterrence and rehabilitation, from a philosophical point of view
To discuss the law and jurisprudence relating to life imprisonment in the international criminal tribunals of Nuremberg, Tokyo, the Former Yugoslavia, Rwanda, International Criminal Court and the Special Court for Sierra Leone (SCSL). The emphasis will be on the theories of punishment these tribunals have stressed in sentencing offenders to life imprisonment
To discuss the history and major legal developments relating to life imprisonment in three African countries, viz, Mauritius, South Africa and Uganda. The study will also discuss: the offences that carry life imprisonment
the courts with jurisdiction to impose life imprisonment
legal representation for accused facing life imprisonment on conviction
the theories of punishment that courts have emphasised in sentencing offenders to life imprisonment
and the law and mechanisms governing the release of offenders sentenced to life imprisonment in the above three countries.
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Kerscher, Martin. "Plea bargaining in South Africa and Germany." Thesis, Stellenbosch : Stellenbosch University, 2013. http://hdl.handle.net/10019.1/80257.
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Thesis (LLM)--Stellenbosch University, 2013.Bibliography
ENGLISH ABSTRACT: Plea bargaining describes the act of negotiating and concluding agreements in the criminal procedure. Usually the prosecutor and the accused agree that the accused will plead guilty to the charge brought against him in exchange for some concession from the prosecution. The bargain is not limited to the presented subject. Agreements can contain the non-prosecution or reduction of charges, specific terms of punishment, conditions of probation and much more. In many countries the vast majority of criminal cases are disposed by way of bargaining. Plea bargaining breaches with the concept of a conventional trial and consequently clashes with well-known fundamental principles of the criminal procedure. Moreover, bargaining before criminal trials strongly implicates the constitutionally secured rights of the accused as well as of the public interest. Although plea bargaining is broadly criticized for its implications on essential rules and principles, the use of the practice is widespread. There are clear benefits to the participant, such as to avoid a lengthy trial with an uncertain outcome. South Africa, as a legal system with roots in the common law, adopted the procedure in 2001 with the implementation of s 105A into the Criminal Procedure Act. The German legislature in 2009 decided to regulate what until then had been informal practice by inserting several rules into the German criminal procedure, amongst which s 257c contains the main provisions. The implementation of bargains into the German law has produced tensions particularly due to the inquisitorial basis of the criminal procedure that stands in civil law tradition. This thesis evaluates how South African and German provisions on plea bargaining differ, i.e., on which different backgrounds they are based on, how the bargain procedures are construed and to what extent statutory plea bargaining in both legal systems displaces informal traditional agreements. The comparison is enriching under the aspect that both countries implemented the bargain procedure but had to place them on fundamentally different grounds. Having presented the grounds that motivated the research (Chapter I.), the origins of plea bargaining in general as well as the legal development toward the present statutory provisions in both countries are examined (Chapter II.). The bargain procedures are compared in detail (Chapter IV.). A large part focuses on particular problem areas and how both legal systems cope with them (Chapter V.). The result of the research is summarized in a conclusion (Chapter VI.).
AFRIKAANSE OPSOMMING: Pleitonderhandeling kan beskryf word as die proses van onderhandel en die aangaan van ooreenkomste in die strafproses. Die vervolging en die verdediging sal gewoonlik ooreenkom dat die beskuldigde skuldig sal pleit in ruil vir een of meer toegewings deur die vervolging. Ooreenkomste kan insluit die nie-vervolging of vermindering van klagte, spesifieke aspekte van vonnis, voorwaardes van parool en talle meer. In ‘n hele aantal lande word die oorgrote meerderheid van sake afgehandel by wyse van pleitooreenkomste. Dit is egter duidelik dat pleitooreenkomste in konflik is met die konsep van ‘n gewone verhoor en is gevolglik ook in konflik met van die grondbeginsels van die strafprosesreg. Dit raak ook die grondwetlike regte van beskuldigdes en die belange van die samelewing. Ten spyte van hierdie kritiek en meer, is die praktyk van pleitonderhandeling wydverspreid. Daar blyk besliste voordeel te wees vir die deelnemende partye, byvoorbeeld die vermyding van lang verhore met onsekere beslissings. Suid-Afrika (met ‘n sterk gemeenregtelike tradisie) het die praktyk van pleitonderhandeling formeel en per statuut in 2001 aanvaar, met die aanvaarding en invoeging van artikel 105A in die Strafproseswet, 1977. Die wetgewer in Duitsland het in 2009 besluit om die informele praktyk van pleitonderhandeling te formaliseer met die invoeging van sekere bepalings in die Duitse strafproseskode. Hierdie invoeging het sekere spanning veroorsaak in die Duitse strafproses, veral weens die inkwisitoriese tradisie in daardie jurisdiksie. Hierdie tesis evalueer die Suid-Afrikaanse en Duitse benaderings tot pleitonderhandelinge, hoe dit verskil, die verskillende regskulturele kontekste waarbinne dit plaasvind, en die mate waartoe pleitonderhandeling in beide sisteme informele ooreenkomste vervang het. Die vergelykende ondersoek bevind dat beide stelsels die pleitooreenkoms ingestel het, maar dit moes doen mvn fundamenteel verskillende gronde. Hoofstuk I (die motivering vir die studie), word gevolg deur ‘n historiese ondersoek (Hoofstuk II). Die verdere hoofstukke fokus op die regsvergelykende aspekte en die gevolgtrekkings word in Hoofstuk VI uiteengesit.
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Tshikovhi, Rotondwa Happy. "The law relating to double jeopardy in labour law." Thesis, University of Limpopo, 2014. http://hdl.handle.net/10386/1236.
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Thesis (LLM. (Labour Law)) --University of Limpopo, 2014This research focuses on the application of the double jeopardy principle in labour law, section 188(1)(a (b) of the Labour Relations Act 66 of 1995, (herein the LRA) which provides that the dismissal is unfair if the employer fails to prove that the reason for the dismissal is fair and was effected in accordance with a fair procedure. The first point which I would explain is the meaning of double jeopardy and whether it is applicable in labour law. The research articulates that the double jeopardy principle applies to labour law and enumerates ways it can be applied. The South African courts, in particular, the Labour Court and the Labour Appeal Court have delivered several judgements on the double jeopardy principle. These cases will be critically discussed in detail. Comparison will be made with foreign labour law jurisprudence on the double jeopardy principle, particularly in Australia and the United States of America.
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Fischer, Carl Frederich. "An evaluation of the constitutionality of the common law crime of criminal defamation." Thesis, Nelson Mandela Metropolitan University, 2008. http://hdl.handle.net/10948/749.
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The challenge in the law of defamation lies in finding the appropriate balance between the two competing rights of freedom of expression and an unimpaired reputation. From Roman and Roman-Dutch law into the modern era, criminal and civil defamation have been very closely linked. The elements and defences are substantially alike. There were several calls prior to 1994 for the abrogation of criminal defamation. Now that the right to an unimpaired reputation, as part of the right to human dignity, and the right to freedom of expression is constitutionally guaranteed, quo vadis the crime of criminal defamation? The Supreme Court of Appeal has recently granted a petition for leave to appeal against convictions for criminal defamation on this very point: is the offence constitutional. Due to the paucity of criminal defamation precedent, the copious civil law precedent concerning civil defamation must be analysed to determine what view the Supreme Court of Appeal will adopt. Prior to 1994 the right to an unimpaired reputation has trumped freedom of expression. Since then, the two leading decisions by the Supreme Court of Appeal and the Constitutional Court have ameliorated this situation slightly, according freedom of expression more weight. Claiming the previous common law position was incorrect, they claim the present common law position is constitutionally sound. Thus the Constitution has in essence had no effect to date upon the balancing of competing rights in the law of defamation. Both courts have erred in according the right to freedom of expression too little weight. This may be due to three judicial errors. Firstly, they have under-appreciated that the values of dignity, equality and freedom fortify and are fortified by the right to freedom of expression. Aspects of dignity such as self-actualisation, self-governance and an acceptance that humans have intrinsic worth are heavily reliant on freedom of expression, particularly political expression. Secondly, while political expression lies at the core of freedom of expression, reputation lies nearer the periphery of the right to dignity. Rights at the core ought to trump competing but peripheral rights. Thirdly, erroneous statements are inevitable in free debate. Unless they too are protected, unacceptable self-censorship occurs. The correct approach is as a matter of policy, particularly regarding political expression, to balance the competing rights with one’s thumb on the free expression side of the scales. This seems the trend of the European Court of Human Rights in recent cases In Canada, an offence punishing libel made intentionally but without knowledge of its falsity was recently ruled unconstitutional. On the other hand, another offence punishing libel made with knowledge it was false, videlicet punishing the intentional publication of defamatory lies, was ruled constitutional. Criminal defamation clearly infringes upon the right to freedom of expression. For this infringement to pass constitutional muster it must be reasonable and justifiable in an open and democratic society. It fails the limitation test due to the lack of proportionality between its objective in protecting the right to an unimpaired reputation and the harm it does to the right to expression. There are three reasons: firstly the “chilling effect” of imprisonment, over and above pecuniary damages, unacceptably stifles free debate. Secondly, it may punish even the truth, yet protect a falsehood, since the truth per se is not a defence. An undeserved reputation is thus more highly valued than the publication of that truth. Finally there is a well-developed civil remedy that adequately protects the right to reputation of aggrieved persons. In the appeal concerning the constitutionality of the common law offence of criminal defamation, the Supreme Court of Appeal ought to find it unconstitutional.
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Krause, Samantha. "Provocation as a defence in English and South African criminal law." Thesis, University of Port Elizabeth, 2003. http://hdl.handle.net/10948/310.
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In the past 20 years the defence of provocation has shifted from the periphery of South African law to a fully developed defence available to those who kill when provoked. Not only is the defence available to the provoked, but it has been extended to those who kill when subjected to emotional stress. However, the defence is mirred in controversy and bad decisions. Not only has the precise nature of the defence not been clarified, but this lack of clarity has been exacerbated by confusing decisions of our courts. This confusion is partly a result of the development of the defence of incapacity, particularly its extension to cases involving provocation and mental stress, and partly a result of its application in practice. Three major problems have plagued the provocation defence. Firstly, the courts have confused the defence of sane automatism with that of non-pathological incapacity. Secondly, there has been an implied use of an objective test in determining criminal incapacity where the enquiry has clearly been a subjective one. Thirdly, it has been held that the problem may not so much be the subjective aspect of provocation, but rather its application. The real problem seems to lie in the theoretical confusion as to the precise meaning of lack of “selfcontrol”. Lastly, on occasion the courts have failed to distinguish lack of capacity from diminished responsibility. Thus, in order to gain clarity concerning this “grey” area of the law these problems have created, it is necessary for South African law to consult more authoritative sources to receive guidance for the problems identified. One of those sources that has been consulted is that of English law. English law, however, deals with the defence of provocation in a different manner. Raising a defence of provocation here does not result in an acquittal but rather in a reduction of the charge to manslaughter. However, the English law on provocation is also 7 plagued by various problems. Firstly, there is the issue of cumulative provocation. Generally, there is little difficulty in cases where there is no “immediate trigger”. Secondly, the fundamental flaw with the current test of the reasonable man is that the courts have had to swing between the two aims of taking a compassionate view of human frailty while endeavoring to maintain an objective standard of the reasonable man. Lastly, it can be said that the problem with the proportionality requirement is that it makes the provocation defence dependant upon the assessment of the accused’s conduct after he or she lost his or her selfcontrol rather than on his or her giving way to passion and losing control in the first place. It is clear that from the problems identified in both South African law and English law concerning the defence of provocation the courts in each jurisdiction will have to pay careful attentio n to the problems highlighted and apply the law in such a way so as to ensure clarity and legal certainty.
Books on the topic "Criminal law – South Africa"
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McQuoid-Mason, David Jan, and Linda Coetzee. Street law South Africa: Practical law for South Africans : educator's manual. 2nd ed. Lansdowne [South Africa]: Juta, 2005.
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Snyman, C. R. A criminal code for South Africa: With a commentary. [South Africa]: Juta & Co., 1995.
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Glanz, Lorraine. Preventing juvenile offending in South Africa: Workshop proceedings. Pretoria: HSRC Publishers, 1994.
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Commission, South African Law. Simplification of criminal procedure: Access to the criminal justice system / South African Law Commission. [Pretoria]: The Commission, 1997.
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Glanz, Lorraine. An analysis of South African crime statistics: Convictions for the period 1956 to 1988. Pretoria: Human Sciences Research Council, 1992.
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Rabie, Marinus André. A bibliography of South African criminal law: General principles. Cape Town: Juta, 1987.
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A country at war with itself: South Africa's crisis of crime. Johannesburg: Jonathan Ball, 2007.
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Koyana, Digby Sqhelo. Influence of the Transkei Penal Code on South African criminal law. Alice: Lovedale Press, 1992.
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Commission, South African Law. Simplification of criminal procedure. [Pretoria]: The Commission, 1994.
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Commission, South African Law. Simplification of criminal procedure: Out-of-court settlements in criminal cases. [Pretoria]: South African Law Commission, 2001.
Find full textBook chapters on the topic "Criminal law – South Africa"
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Kemp, Gerhard. "South Africa." In Homicide in Criminal Law, 195–215. New York : Routledge, 2018. | Series: Substantive issues in criminal law: Routledge, 2018. http://dx.doi.org/10.4324/9781351016315-12.
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Dyani-Mhango, Ntombizozuko. "South Africa's contribution to international criminal justice." In The Routledge Handbook of African Law, 491–510. London: Routledge, 2021. http://dx.doi.org/10.4324/9781351142366-33.
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Chibueze, Remigius. "International Criminal Jurisdiction of the African Court of Justice and Human and Peoples’ Rights: Promoting or Obstructing Accountability?" In International Law and Development in the Global South, 115–38. Cham: Springer International Publishing, 2023. http://dx.doi.org/10.1007/978-3-031-13741-9_8.
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Knobel, Johann C. "South Africa." In Tort and Insurance Law, 484–516. Vienna: Springer Vienna, 2002. http://dx.doi.org/10.1007/978-3-7091-6120-3_21.
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Kemp, Gerhard, and Bernard Ntahiraja. "Africa." In Fault in Criminal Law, 288–309. London: Routledge, 2022. http://dx.doi.org/10.4324/9781003279181-17.
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Theron, Jan, and Ursula Titus. "South Africa." In International Handbook of Cooperative Law, 687–700. Berlin, Heidelberg: Springer Berlin Heidelberg, 2013. http://dx.doi.org/10.1007/978-3-642-30129-2_32.
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Collier, Debbie. "South Africa." In Ius Comparatum - Global Studies in Comparative Law, 431–56. Cham: Springer International Publishing, 2018. http://dx.doi.org/10.1007/978-3-319-90068-1_24.
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Sundaram, Jae. "South Africa." In Pharmaceutical Patent Protection and World Trade Law, 169–96. New York: Routledge, 2018. | Series: Routledge research in intellectual property: Routledge, 2018. http://dx.doi.org/10.4324/9781315267692-10.
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Shomade, Salmon A. "South Africa." In Colonial Legacies and the Rule of Law in Africa, 150–89. London: Routledge, 2021. http://dx.doi.org/10.4324/9780429355189-6.
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Ramontja, Thibedi, and Sunday Mabaso. "South Africa II." In Mining Law and Economic Policy, 93–114. Cham: Springer International Publishing, 2022. http://dx.doi.org/10.1007/978-3-031-07048-8_6.
Full textConference papers on the topic "Criminal law – South Africa"
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Jordaan, Jason. "A Sample of digital forensic quality assurance in the South African criminal justice system." In 2012 Information Security for South Africa (ISSA). IEEE, 2012. http://dx.doi.org/10.1109/issa.2012.6320431.
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Mostert, Sias, Mothibi Ramusi, Herman Steyn, and Martin Jacobs. "A National Pathfinder Satellite for South Africa." In 56th International Astronautical Congress of the International Astronautical Federation, the International Academy of Astronautics, and the International Institute of Space Law. Reston, Virigina: American Institute of Aeronautics and Astronautics, 2005. http://dx.doi.org/10.2514/6.iac-05-b5.1.03.
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Butgereit, Laurie. "Covid-19 New Cases Measurements and Benford's Law with Specific Focus on South Africa." In 2021 International Conference on Artificial Intelligence, Big Data, Computing and Data Communication Systems (icABCD). IEEE, 2021. http://dx.doi.org/10.1109/icabcd51485.2021.9519321.
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Pillay, Nischolan, and Yashaen Luckan. "The Practicing Academic: Insights of South African Architectural Education." In 2019 ACSA Teachers Conference. ACSA Press, 2019. http://dx.doi.org/10.35483/acsa.teach.2019.22.
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Architectural education, in the past had a grounding in a strict apprentice or pupillage method of training architects. The apprentice was someone who worked or trained under a master that transferred skill through a “hands on” approach. Architecture was regarded as one of the arts and there was no formal training to qualify one as an architect. It was through the acclaimed Vitruvius that the architectural profession was born. Vitruvius had published “Ten Books on Architecture” that led to an attempt to summarize professional knowledge of architecture and in doing so became the first recognizable architect. The architectural profession spread throughout Europe in the mid-16th century and the builder and architect became two distinct characters. Although architecture had become a profession, it wasn’t up until the late 17th century that architecture became an academic pursuit through an institutionalized educational system known as École des Beaux Arts, however the pursuit of a strict academic scholar was not the focus. At the beginning of the 1800’s, The University of Berlin in Germany forged the fundamental research and scholarly pursuit. Architecture, like the professions of medicine, law etc. became a system of academic pursuit where professors concentrated deeply on academics first and professional work second. It is through the lens of history we can decipher how architecture became an academic discipline almost de-voiding it of its vocational nature. In its current standing, various universities place a high emphasis on research output from their academic staff. Presently, architecture schools in South Africa recruit lecturers on their academic profiles, rather than their vocational experience. The approach of which has devalued the input of industry into education. It has been noted that there has been an increase in an academic pursuit rather than a professional one for the lecturers that teach architecture. This research explores the views of academics on architectural education, teaching methods and the importance of practice at South African universities. The authors of this research provide an auto-ethnographic insight into their invaluable experience of being academics at two large Universities in South Africa and concurrently run successful practices. The research makes use of a mixed method approach of secondary data from literature and semi-structured interviews posed to academics. Initial findings reveal that academics are pushing the industry to play a part in the education of architects; however, the extent must be determined. If industry plays a role in the education of architects, what factors are considered and how does this inter-twine with the academic nature of training? What strategies are academics employing to make sure students are vocationally well trained and academically capable? Another important question to ask is what qualities make an academic architect in the 21st century?
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Onuoha, K. Mosto, and Chidozie I. Dim. "Prospects and Challenges of Developing Unconventional Petroleum Resources in the Anambra Inland Basin of Nigeria." In SPE/AAPG Africa Energy and Technology Conference. SPE, 2016. http://dx.doi.org/10.2118/afrc-2571791-ms.
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ABSTRACT The boom in the development of unconventional petroleum resources, particularly shale gas in the United States of America during the last decade has had far reaching implications for energy markets across the world and particularly for Nigeria, a country that traditionally has been Africa’s leading crude oil producer and exporter. The Cretaceous Anambra Basin is currently the only inland basin in Nigeria where the existence of commercial quantities of oil and gas has been proven (outside the Tertiary Niger Delta Basin). The possibility of similarly finding commercially viable resources of unconventional petroleum resources in the basin appears quite attractive on the basis of the existence of seepages of shale oil and presence of coal-bed methane in some of the coal seams of the Mamu Formation (Lower Coal Measures) in the basin. This paper presents the results of our preliminary assessment of the shale oil and gas resources of the Anambra Basin. Our main objective is to locate the zones of very high quality plays within the basin, focusing on their depositional environments (whether marine or non-marine), areal extent of the target shale formations, gross shale intervals, total organic content, and thermal maturity. Data on the total organic content (TOC %, by weight) and thermal maturity of shales from different wells in the basin show that many of the shales have high TOCs (i.e greater than 2%) comparable to known shale gas and shale oil plays globally. Shale oil seepages are known to occur around Lokpanta in south-eastern Nigeria, but there is a general predominance of gas-prone facies in our inland basins indicating good prospects for finding unconventional petroleum in this and other Nigerian inland sedimentary basins. The main challenge to the exploration of unconventional resources in Nigeria today has to do with the absence of the enabling laws and regulatory framework governing their exploration and subsequent exploitation. The revised Petroleum Industry Bill (PIB) currently under consideration in the National Assembly is expected to introduce drastic and lasting changes in the way the petroleum industry business is conducted in the country, but all the provisions of the draft law pertain mainly to conventional oil and gas resources.
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Liu, Qi, Huifeng Liu, Xi Wang, WanJun Li, Guobin Yang, Baletabieke Bahedaer, Long Yan, et al. "The Research on Decommissioning and Abandonment Engineering Practice of Onshore Oilfield: A Case Study of Block 1/2/4 in South Sudan." In SPE Symposium: Decommissioning and Abandonment. SPE, 2021. http://dx.doi.org/10.2118/208494-ms.
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Abstract At the end of the lifespan of this onshore oilfield development, all wells and oil production system, transmission pipelines and all surface infrastructures shall be decommissioned in accordance with international guidelines for abandonment of oil and gas facilities. The development and production period relevant to Block 1/2/4 shall be ceased in 2033 as the PSC law approved by South Sudan Government. Considering that South Sudan is located along the Nile River in Africa, necessary measures shall be taken with respect to activities in the field to ensure effective protection for the environment. In addition, difficulties which have negative impact on decommission assessment shall be taken into account, such as inadequate wells data, the destruction of the facility by war, high security risks of Block 1/2/4, costly decommissioning and abandonment fees and so on. This paper combines the practice of Block 1/2/4 in South Sudan to introduce the decommissioning plan, abandonment working process, standard operation procedure for wells and surface facility disposal, and the calculation of the decommissioning fund. The decommissioning may include complete removal or abandonment in-situ which based on an evaluation of cost, safety and environmental impact. While a detailed decommissioning and abandonment proposal has been compiled and updated during the production phase of the project. When the final decommissioning and abandonment plans have been developed for upstream and midstream, the costs have been updated accordingly. These estimates had utilized by the operators to fund the decommissioning and abandonment obligations in accordance with the provisions of the oil company. The D&A task was successful and finally approved by the authority of government. Due to the successful completion of the decommissioning task of Block1/2/4, a completed decommissioning and abandonment management system has been established, including D&A cost calculation and standard operation procedure for wells and facility disposal, which can lower the environmental risk and reduce the capital expenditure at the end of the project. It can be regarded as a classic practice in petroleum industry and has a strong reference value.
Reports on the topic "Criminal law – South Africa"
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Cachalia, Firoz, and Jonathan Klaaren. Digitalisation, the ‘Fourth Industrial Revolution’ and the Constitutional Law of Privacy in South Africa: Towards a public law perspective on constitutional privacy in the era of digitalisation. Digital Pathways at Oxford, July 2021. http://dx.doi.org/10.35489/bsg-dp-wp_2021/04.
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In this working paper, our focus is on the constitutional debates and case law regarding the right to privacy, adopting a method that is largely theoretical. In an accompanying separate working paper, A South African Public Law Perspective on Digitalisation in the Health Sector, we employ the analysis developed here and focus on the specific case of digital technologies in the health sector. The topic and task of these papers lie at the confluence of many areas of contemporary society. To demonstrate and apply the argument of this paper, it would be possible and valuable to extend its analysis into any of numerous spheres of social life, from energy to education to policing to child care. In our accompanying separate paper, we focus on only one policy domain – the health sector. Our aim is to demonstrate our argument about the significance of a public law perspective on the constitutional right to privacy in the age of digitalisation, and attend to several issues raised by digitalisation’s impact in the health sector. For the most part, we focus on technologies that have health benefits and privacy costs, but we also recognise that certain technologies have health costs and privacy benefits. We also briefly outline the recent establishment (and subsequent events) in South Africa of a contact tracing database responding to the COVID-19 pandemic – the COVID-19 Tracing Database – a development at the interface of the law enforcement and health sectors. Our main point in this accompanying paper is to demonstrate the value that a constitutional right to privacy can bring to the regulation of digital technologies in a variety of legal frameworks and technological settings – from public to private, and from the law of the constitution to the ‘law’ of computer coding.
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Cachalia, Firoz, and Jonathan Klaaren. A South African Public Law Perspective on Digitalisation in the Health Sector. Digital Pathways at Oxford, July 2021. http://dx.doi.org/10.35489/bsg-dp-wp_2021/05.
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We explored some of the questions posed by digitalisation in an accompanying working paper focused on constitutional theory: Digitalisation, the ‘Fourth Industrial Revolution’ and the Constitutional Law of Privacy in South Africa. In that paper, we asked what legal resources are available in the South African legal system to respond to the risk and benefits posed by digitalisation. We argued that this question would be best answered by developing what we have termed a 'South African public law perspective'. In our view, while any particular legal system may often lag behind, the law constitutes an adaptive resource that can and should respond to disruptive technological change by re-examining existing concepts and creating new, more adequate conceptions. Our public law perspective reframes privacy law as both a private and a public good essential to the functioning of a constitutional democracy in the era of digitalisation. In this working paper, we take the analysis one practical step further: we use our public law perspective on digitalisation in the South African health sector. We do so because this sector is significant in its own right – public health is necessary for a healthy society – and also to further explore how and to what extent the South African constitutional framework provides resources at least roughly adequate for the challenges posed by the current 'digitalisation plus' era. The theoretical perspective we have developed is certainly relevant to digitalisation’s impact in the health sector. The social, economic and political progress that took place in the 20th century was strongly correlated with technological change of the first three industrial revolutions. The technological innovations associated with what many are terming ‘the fourth industrial revolution’ are also of undoubted utility in the form of new possibilities for enhanced productivity, business formation and wealth creation, as well as the enhanced efficacy of public action to address basic needs such as education and public health.
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Boustati, Boustati. Narcotics Flows Through Eastern Africa: the Changing Role of Tanzania and Mozambique. Institute of Development Studies, March 2022. http://dx.doi.org/10.19088/k4d.2022.074.
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In the last few decades, the southern route’s use for drug trafficking gained prominence as increased law enforcement and unrest in the Middle East made the traditional ‘Balkan route’ less viable. This southern route transports drugs, mainly heroin, from its production in Afghanistan to Pakistan or Iran, to eastern Africa – including Tanzania and Mozambique- and consequently to South Africa, after which it is moved to Europe (Aucoin, 2018; Otto & Jernberg, 2020). Notable targets of trafficking via the southern route have been the United Kingdom, Belgium, and the Netherlands (UNDOC, 2015). It is difficult to know for certain the quantities of drugs being trafficked through eastern Africa, but the literature puts it at up to 40 tonnes, with 5 of those staying behind, while the rest is transported overseas (Haysom et al., 2018a, 2018b). Due to various political and economic shifts, methamphetamines produced in Afghanistan recently also began to be trafficked alongside heroin shipments through the southern route, with recent estimates putting it at 50% of drugs being trafficked (Eligh, 2021). Most of the literature agrees that, in recent years, drug trafficking routes in eastern Africa have shifted due to political changes, but there is no evidence to suggest that the amount being trafficked have decreased.
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Michel, Bob, and Tatiana Falcão. Taxing Profits from International Maritime Shipping in Africa: Past, Present and Future of UN Model Article 8 (Alternative B). Institute of Development Studies (IDS), November 2021. http://dx.doi.org/10.19088/ictd.2021.023.
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International maritime shipping is an essential part of global business. Since the establishment of the current international tax regime in the 1920s, there has been a consensus that profits generated by this business are taxable only in the residence state –the state where the shipowners are located. Source states – the port states where business physically takes place – are generally expected to exempt income from international shipping. This standard is currently reflected in Article 8 of the OECD Model and Article 8 (Alternative A) of the UN Model, and is incorporated in the vast majority of bilateral tax treaties currently in force. Exclusive residence state taxation of shipping profits is problematic when the size of mercantile fleets and shipping flows between two states are of unequal size. This is often the case in relations between a developed and developing country. The latter often lack a substantial domestic mercantile fleet, but serve as an important revenue-generating port state for the fleet of the developed country. To come to a more balanced allocation of taxing rights in such a case, a source taxation alternative has been inserted in UN Model Article 8 (Alternative B). From its inception, Article 8B has been labelled impractical due to the lack of guidance on core issues, like sourcing rules and profit allocation. This gap is said to explain the low adoption rate of Article 8B in global tax treaty practice. In reality, tax treaty practice regarding Article 8B is heavily concentrated and flourishing in a handful of countries in South/South-East Asia – Bangladesh, India, Indonesia, Myanmar, Pakistan, the Philippines, Sri Lanka and Thailand. All these countries subject non-resident shipping income to tax in their domestic income tax laws. Except for India, all countries are able to exercise these domestic tax law rules in relation to shipping enterprises located in the biggest shipowner states, either because they have a treaty in place that provides for source taxation or because there is no treaty at all and thus no restriction of domestic law. None of the relevant tax treaties contain a provision that incorporates the exact wording of Article 8B of the UN Model. If other countries, like coastal countries in sub-Saharan Africa, are looking to implement source taxation of maritime shipping income in the future, they are advised to draw on the South/South-East Asian experience. Best practice can be distilled regarding sourcing rule, source tax limitation, profit attribution and method of taxation (on gross or net basis). In addition to technical guidance on tax, the South/South-East Asian experience also provides important general policy considerations countries should take into account when determining whether source taxation of maritime shipping profits is an appropriate target for their future tax treaty negotiations.
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Gledhill, Igle, Richard Goldstone, Sanya Samtani, Keyan Tomaselli, and Klaus Beiter. Copyright Amendment Bill Workshop Proceedings Report. Academy of Science of South Africa (ASSAf), 2022. http://dx.doi.org/10.17159/assaf.2022/0078.
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The genesis of the Copyright Amendment Bill was in 2009, when the Department of Trade and Industry (DTI) initiated various studies and impact assessments. In July 2015, the DTI published a Draft Copyright Amendment Bill for public comment. The final 2017 version of the Bill was approved by Parliament in 2019 and it was sent to President Cyril Ramaphosa for action in terms of Section 79(1) of the Constitution. Section 79(1) states that “The President must either assent to and sign a Bill passed in terms of this Chapter or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration”. The President referred the Bill back to Parliament for review on 16 June 2020, on constitutionality issues. In response to the President’s reservations, Parliament’s Portfolio Committee on Trade and Industry has invited stakeholders and other interested parties to submit written submissions on certain sections of the Bill by no later than 9 July 2021. The current copyright law is outdated and does not address the digital environment. The Academy of Science of South Africa seeks to take into account the status of the copyright legislation and the anticipated effects of the amendment Bill on different issues and thereafter, provide recommendations to the President.
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Kahima, Samuel, Solomon Rukundo, and Victor Phillip Makmot. Tax Certainty? The Private Rulings Regime in Uganda in Comparative Perspective. Institute of Development Studies, January 2021. http://dx.doi.org/10.19088/ictd.2021.001.
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Taxpayers sometimes engage in complex transactions with uncertain tax treatment, such as mergers, acquisitions, demergers and spin-offs. With the rise of global value chains and proliferation of multinational corporations, these transactions increasingly involve transnational financial arrangements and cross-border dealings, making tax treatment even more uncertain. If improperly structured, such transactions could have costly tax consequences. One approach to dealing with this uncertainty is to create a private rulings regime, whereby a taxpayer applies for a private ruling by submitting a statement detailing the transaction (proposed or completed) to the tax authority. The tax authority interprets and applies the tax laws to the requesting taxpayer’s specific set of facts in a written private ruling. The private ruling offers taxpayers certainty as to how the tax authority views the transaction, and the tax treatment the taxpayer can expect based on the specific facts presented. Private rulings are a common feature of many tax systems around the world, and their main goal is to promote tax certainty and increase investor confidence in the tax system. This is especially important in a developing country like Uganda, whose tax laws are often amended and may not anticipate emerging transnational tax issues. Private rulings in Uganda may be applied for in writing prior to or after engaging in the transaction. The Tax Procedures Code Act (TPCA), which provides for private rulings, requires applicants to make a full and true disclosure of the transaction before a private ruling may be issued. This paper evaluates the Ugandan private rulings regime, offering a comparative perspective by highlighting similarities and contrasts between the Ugandan regime and that of other jurisdictions, including the United States, Australia, South Africa and Kenya. The Ugandan private rulings regime has a number of strengths. It is not just an administrative measure as in some jurisdictions, but is based on statute. Rulings are issued from a central office – instead of different district offices, which may result in conflicting rulings. Rather than an elaborate appeals process, the private ruling is only binding on the URA and not on the taxpayer, so a dissatisfied taxpayer can simply ignore the ruling. The URA team that handles private rulings has diverse professional backgrounds, which allows for a better understanding of applications. There are, however, a number of limitations of the Ugandan private rulings system. The procedure of revocation of a private ruling is uncertain. Private rulings are not published, which makes them a form of ‘secret law’. There is no fee for private rulings, which contributes to a delay in the process of issuing one. There is understaffing in the unit that handles private rulings. Finally, there remains a very high risk of bias against the taxpayer because the unit is answerable to a Commissioner whose chief mandate is collection of revenue. A reform of the private rulings regime is therefore necessary, and this would include clarifying the circumstances under which revocation may occur, introducing an application fee, increasing the staffing of the unit responsible, and placing the unit under a Commissioner who does not have a collection mandate. While the private rulings regime in Uganda has shortcomings, it remains an essential tool in supporting investor confidence in the tax regime.