Dissertations / Theses: '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, 2014
This 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.

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Brink, Ronelle Bonita. "The child accused in the criminal justice system." Thesis, Nelson Mandela Metropolitan University, 2010. http://hdl.handle.net/10948/1229.

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The high level of crime in South Africa raises the question about the failures of the criminal justice system on the one hand, and South Africa’s social policies on the other. Young people in South Africa can disproportionately be both victims and perpetrators of crime in the Republic of South Africa. The child accused in conflict with the law is dealt with in much the same way as their adult counterparts, as the criminal justice system was designed by adults for adults. South Africa became a signatory to the United Nations Convention on the Rights of the Child 19891(hereinafter referred to as UNCRC) on 16 June 1995. The UNCRC provides a backdrop to section 28 of the Constitution of the Republic of South Africa Act.2 Article 3(1) of the UNCRC provides as follows: “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be primary consideration.” South Africa is therefore according to article 40(3) of the UNCRC obliged to “establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law”.3 In terms of article 40(1) of the UNCRC “State Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”4 1 Adopted by the General Assembly resolution 44/25 on 20 November 1989. 2 The Constitution of the Republic of South Africa Act, Act 108 of 1996. Hereinafter referred to as the “Constitution”. 3 South Law Reform Commission Discussion Paper 96. 4 United Nations Convention on the Rights of the Child adopted by the General Assembly resolution 44/25 on 20 November 1989. iv Synopsis 2003 states that “the Ratification of the UNCRC by the South African government in 1995 set the scene for broad-reaching policy and legislative change”.5 The Constitution includes a section protecting children’s rights, which includes the statement that children have the right not to be detained except as a measure of last resort and then for the shortest appropriate period of time, separate from adults and in conditions that take account of his/her age. 6 After being off Parliament’s agenda since 2003, the Child Justice Act7 has recently been reintroduced. The Act aims to ensure consistent, fair and appropriate treatment of the child accused in conflict with the law. The question arises whether the South African Criminal Justice system involving the child accused adequately recognises and protects the interests of the child accused, particularly in view of the present international legal position.

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Ndzengu, Nkululeko Christopher. "A comparative analysis of aspects of criminal and civil forfeitures: suggestions for South African asset forfeiture law reform." Thesis, Nelson Mandela University, 2017. http://hdl.handle.net/10948/14267.

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In order for the proceeds of unlawful activities to be completely dislodged from the criminals’ hands, the latter should be effectively deterred from allowing their assets to be used to execute or facilitate the commission of offences. When properly exacted, in the interests of justice and within the existing constitutional framework, the legal process known as asset forfeiture should ensure that crime never pays. Asset forfeiture refers to both criminal forfeiture, which is conviction based following the United Kingdom asset forfeiture regime and civil forfeiture, which is non-conviction based following the United States of America one.2 Chapter 5 provisions of the Prevention of Organised Crime Act3 (hereafter POCA) provides for court, Basdeo M – Search, Seizure and Asset Forfeiture in the South African Criminal Justice System: Drawing a Balance between Public Utility and Constitutional Rights (2013) LLD, University of South Africa in Chapter 5 where a comprehensive comparative study of SA POCA and United States of America’s asset forfeiture and origin is undertaken. 3 Act 121 of applications for a restraint, confiscation and realisation for the recovery of proceeds of unlawful activities. The restraint is invoked when a suspect is to be charged or has been charged or prosecuted, there are reasonable grounds to believe that a conviction may follow and that a confiscation order may be made. Chapter 6 provisions of POCA provide for court applications for preservation and forfeiture order targeting both the proceeds of unlawful activities and removal from public circulation of instruments or assets used in the commission of offences where the guilt of the wrongdoer is not relevant. POCA has a Schedule with 34 items setting out examples of offences in relation to which civil forfeiture may be invoked. When the State discharges this noble professed task in the name of public safety, security and crime combating, legal challenges arise. This is more so within a constitutional democratic context where both individual and property rights are enshrined and protected. This study deals with some of these challenges. To the mind of a legal researcher, the law of asset forfeiture is, in this process, moulded and developed. South Africa (a developing country), Canada and New Zealand (developed countries in the north and southern hemispheres) have constitutional democracies. They also have asset forfeiture regimes, which attracted the attention of the researcher. The question is: can the developing country learn some best practices from the developed countries in this particular field? It would be interesting to establish this and the level of development of this field in the three countries under study. South Africa, with no federal government, has nine Provinces, single asset forfeiture legislation5 (combining both criminal forfeiture i.e. restraint, confiscation and realisation applications and civil forfeiture i.e. preservation and forfeiture applications), and a criminal statute6 applicable to all such Provinces. It also has, like Canada and New Zealand, pockets of asset forfeiture provisions embedded in various statutes. There is only one asset forfeiture office under the umbrella of the National Prosecuting Authority.7 It has branches8 in the Provinces, invoking the provisions of POCA, since 1999. It is not part of the police department. The researcher joined the South African Port Elizabeth branch in March 2003, Bloemfontein, Kimberly and Mmabatho branches from 2010 to 2011, July 2012 onwards in the Port Elizabeth and has practical experience in this regard. The Prevention of Organised Crime Act 121 of 1998. The Namibian POCA 29 of 2004 is almost a replica of the South African POCA except that the former makes express recognition of the victims of the underlying victims. The Criminal Procedure Act, 51 of 1977 (as amended). The Asset Forfeiture Unit (AFU) with its Head Office situated in Pretoria under the umbrella of the National Prosecution Authority, which Raylene Keightley in Young S Civil Forfeiture of Criminal Property Legal Measures for Targeting the Proceeds of Crime (2009) Cheltenham Edward Elgar Publishing, Inc.: Northampton, MA at 94 calls a specialist implementation agency. In Pretoria, Johannesburg, Cape Town, Port Elizabeth, East London, Durban, Bloemfontein, Kimberley, Mmabatho, Mpumalanga and Limpopo. It comprises of eleven Provinces to which the Criminal Code of Canada, the Controlled Drugs and Substances Act 1996 and a host of other statutes apply. Eight of the eleven Provinces have their own and distinct primary stand-alone asset forfeiture statutes introducing civil forfeiture10 as more fully explained in Chapter 2 of this study.

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Hlophe, Stanley Siphiwe. "The adoption of an inquisitorial model of criminal procedure in court proceedings relating to children." Thesis, Nelson Mandela Metropolitan University, 2011. http://hdl.handle.net/10948/1570.

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In this project the adoption of an inquisitorial model of criminal procedure in court proceedings relating to children is discussed. The traditional characteristics of adversarial and inquisitorial models of criminal procedure, the two models in a South African perspective and problems with the adversarial model are highlighted. That it terrifies and silence young victim and witnesses from giving evidence. The inquisitorial elements present in South African criminal procedure such as in bail proceedings, plea proceedings, powers of the presiding officer to call, recall and examine witnesses, powers of the presiding officer to exclude inadmissible evidence, evidence on sentence, and investigation on unreasonable delay on trials are discussed. The international instruments pertaining to children in conflict with the law and child witnesses are examined, together with their impact in our laws relating to children. The constitutional implications to the rights of children are discussed. The historical background that culminated to the Child Justice Act is highlighted. The Child Justice Act with particular reference to the inquisitorial aspects present in this Act is discussed. The measures that aim to protect child witness present in the Criminal Procedure Act, Criminal law Sexual offences and Related Matters Amendment Act and Children’s Act are highlighted. The conclusion, on the analysis of protective measures protecting children, is that in South African law there is a renewed interest in inquisitorial procedures as an effective means of ensuring justice. The conclusion suggests that adversarial model of criminal procedure is not the best method for our legal system to deal with children.

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Van, Niekerk Hester Aletta. "Determining the competency of children with developmental delays to testify in criminal trials." Thesis, Rhodes University, 2015. http://hdl.handle.net/10962/d1017878.

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In South Africa children are required to testify under oath or admonition. The shortcomings of the competency test are of particular relevance to children with developmental disabilities, since courts are not equipped to adequately assess the competency of these children to give evidence. One component of testimonial competency, namely the understanding of the concepts truth and lies, is overemphasised and is examined with questions that are developmentally inappropriate for child witnesses in general. For children with cognitive disabilities, such questions create barriers for participation in the truth-seeking process. Consequently, convictions have been set aside on appeal owing to procedural irregularities found in the implementation of this test. In the literature review on testimonial competency, attention was given to restrictions that specific developmental disabilities impose on the perceptual, cognitive, communication and moral development of children. Two of four components – narrative ability and moral capacity – were studied in a sample of 184 children in middle childhood. Participants’ ability to give coherent and detailed accounts of events, their understanding of the concepts truth, lies, promises and the oath, and the Lyon and Saywitz oath-taking competency test, were investigated. Quantitative and qualitative methods were used for data analysis. Three groups were identified: those children with very limited, average or full testimonial competency. Their capacities were found to be related to maturation of cognitive functions and level of intellectual functioning. Participants were better able to demonstrate their understanding of truth and falsity by responding to the oathtaking test than giving verbal descriptions of these concepts. Whereas 1 percent of participants had a conceptual understanding of an oath, 15 percent understood the concept of a promise. Syncretism and confabulation compromised the narrative accounts of a substantial number of participants. Syncretism relates to immature narrative ability: correct details are combined in an illogical fashion. Confabulation refers to filling memory gaps with fabricated information. Guidelines on the competency determination of children with developmental disabilities were compiled. It is suggested that the competency examination be replaced by a formal, pre-trial competency assessment. The court should also receive expert evidence on how to facilitate meaningful participation when a child with sufficient testimonial competence is the witness.

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15

Nkosi, Zaba Philip. "An evaluation of South Africa's legislation to combat organised crime." Thesis, Nelson Mandela Metropolitan University, 2011. http://hdl.handle.net/10948/1566.

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Organised crime is a global phenomenon. It is a problem in South Africa as it is a problem in most countries. International and regional organisations, in particular, United Nations, Financial Action Task Force (FATF), and African Union (AU), have developed legislative measures and laid down minimum standards to assist party and non-party states to combat the scourge. Member countries and signatories to those instruments are ever encouraged to bring about national legislative and regulatory frameworks to criminalise predicate crimes, curb money laundering, confiscate instrumentalities and proceeds of such crimes, and to co-operate amongst themselves in their endeavours to fight the scourge. South Africa is a signatory and state party to the Vienna Convention, the Palermo Convention, African Union conventions, Southern African Development Community protocols, and has embraced Financial Action Task Force Forty Recommendations. As a signatory and a state party to these instruments, South Africa has passed, in its parliament, a vast array of legislative tools aimed at complimenting the criminalisation of organised crime related conduct (thus extending range of predicate crimes, and has also put in place preventative measures to be taken by financial, non-financial and professional institutions against money laundering practices, in order to deny organised criminals of illicit proceeds and a further use of property as an instrument of crime. The legislative framework is also aimed to foster international co-operation in the form of mutual assistance, extradition and enforcement of foreign judgements and sentences. There is a public perception, though, that crime pays in South Africa. The general public perception is that crime pays because the laws of the country always lag behind the ingenuity of organised criminals who, it is believed, are always a step or two ahead in better organisation of their nefarious activities and in the use of sophisticated methods of execution to achieve their goals. The objective of this research is to evaluate existing South African laws intended to deal with organised crime with relevant international instruments in order to establish whether the laws are adequate and are being implemented effectively to fight the scourge. The hypothesis of this research project is that South Africa has adequate laws (compliance); however, the problem lies in their implementation (enforcement). To obtain the necessary information to achieve the said objectives, the views made by various writers on organised crime were considered. The legislation currently in place to combat organised crime was identified and measured against aforementioned instruments in order to establish whether they do achieve the minimum standards set for the fight against organised crime. The comparison was done following the perspectives contained in these instruments in chapter form. In this regard, over-achievements as well as under-achievements were highlighted. For an example, article 6 of the Palermo convention instructs state parties to include as predicate offences all serious crime, punishable by maximum deprivation of liberty of at least 4 years or more, for money laundering. The Prevention of Organised Crime Act (POCA), on the other hand, contains no list of specific predicate offences, but makes an open-ended reference to the „proceeds of unlawful activities‟. It is, therefore, all-encompassing. Another example can be found in the South African definition of corruption. The South African statutory definition penalises corruption „in the widest sense and in all its forms, whereas that in the Palermo Convention is limited or restricted, as it does not instruct for the criminalisation of corruption involving foreign public officials or international civil servants. The evaluation of existing South African laws shows that South Africa has adequate laws to fight organised crime. There is, however, a room for improvement in their implementation, particularly in the prosecution of organised crimes. The South African government is urged to make available adequate financial resources to enable prosecutors to carry out their functions effectively in the fight against the scourge.

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16

Makasana, Velile. "The onus of proof and presumption of innocence in South African bail jurisprudence." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1020911.

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The South African criminal justice process is such that there is an inevitable lapse of time between the arrest of the offender and his or her subsequent trial. The pre-trial incarceration presents a special problem. Between the arrest of the accused and release, the accused is being deprived of his or her liberty in circumstances where no court of law has pronounced him or her guilty. The right to bail is well entrenched in South African criminal justice system both in the Constitution Act and Criminal Procedure Act. Bail is always in the form of contract between the State and the accused, even though at times it may be opposed by the State. In the past the legal position based on the case law was that the presumption of innocence in bail proceedings operated in favour of the applicant even where it was said that there was a strong prima facie case against him or her. This position has slightly changed in that the courts in bail applications are not concerned with guilt, but that of possible guilt only to the extent that it may bear on where the interests of justice lie in regard to bail. The onus of proof in bail applications, other than Schedule 5 and 6 offences is borne by the State. Where Schedule 5 or 6 is applicable the onus is on the applicant. There are different requirements between schedule 5 and 6 that must be met by the applicant before release on bail is granted. In Schedule 5 offences the bail applicant must satisfy the court that the interests of justice permit his or her release. In determining whether the interests of justice permit the release of a particular applicant on bail, the courts are guided by the provisions of section 60(4) to (9) inclusive of section (11B)(c) of the Criminal Procedure Act. In such determination the courts must also take into account of section 60(60)(a) to (g) of the Criminal Procedure Act. In Schedule 6 offences there are two requirements namely: the exceptional circumstances and the interests of justice. The term “exceptional circumstances” does not have a closed definition. Both requirements must be established by means of written or oral evidence to the satisfaction of the court before bail may be granted. As pointed out above, the State may still oppose the release on bail of the applicant. It is now accepted in bail applications that ordinary circumstances may in particular context be blended with exceptional or unusual elements. In such cases the court is expected to apply its independent evaluation of evidence in order to determine whether the exceptional circumstances in the interests of justice permit the release on bail. Similarly to the South African bail jurisprudence the Rome Statute of the International Criminal Court recognises a right of the arrested person to apply for the interim release. It also recognises the need to establish exceptional circumstances for such release. The South African bail jurisprudence recognises the right to bail, and places reasonable and procedural limitations founded on the constitutional values and interests of justice. There are still practical challenges that need to be addressed as a results of the stringent requirements in section 60(11)(a) and (b) of the Criminal Procedure Act that relate to Schedule 5 and 6. It is therefore recommended that there is a need for the following: 1. Legislative intervention that will regulate and limit the time spent on investigations where bail has been refused. 2. Legislative intervention that will provide for an automatic review procedures in Schedule 5 or 6 offences where bail is refused on grounds that the interests of justice do not permit the release of the applicant on bail or for failure to prove exceptional circumstances. It is submitted that this may assist in reducing refusals of bail based on mistaken understanding of the law or facts or irregularities that may be prejudicial to the applicant or the administration of justice; or 3. Legislative intervention that will make it mandatory for a court that refuses to grant bail to reconsider its decision after a certain period in future provided that the trial has not been commenced with, in order to determine whether further incarceration is necessary or proportionate to the offence. It is submitted that this may assist the court to enquire into unreasonable delays on investigations or changed circumstances of the applicant in order to enable the court to reconsider its previous decision if necessary. This may further assist in offences where it is foreseeable that the trial court is likely to pass a partly or wholly suspended sentence in case of conviction. For example some cases fall within the scope of Schedule 5 by virtue of a previous conviction on Schedule 1 or release on bail on a Schedule 1 offence. The above recommendations may directly or indirectly contribute in balancing the scales of justice during the bail proceedings and its aftermath. These may contribute to the reduction of high numbers of the in custody awaiting trial prisoners while not compromising the current bail procedures.

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17

Jokani, Mkhuseli Christopher. "Innovations introduced into the South African criminal justice by the child justice Act 75 of 2008." Thesis, Nelson Mandela Metropolitan University, 2011. http://hdl.handle.net/10948/1571.

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The Child Justice Act 75 of 2008 has brought about some new elements in the South African Criminal Justice system in cases involving children in conflict with the law. The changes require that children in conflict with the law should be treated differently from adult accused persons. The Act is now regarded as a Criminal Procedure for children in conflict with the law. In other words the emphasis is on ensuring that children are diverted away from the formal Criminal Justice provided that children acknowledge responsibility. One of the elements that is introduced by the Act is the Preliminary Inquiry that is an informal, pre- trial procedure that must be held in respect of every child that is alleged to have committed an offence. The role of the Presiding Judicial Officer is very active during this stage because he is the one that takes charge of the proceedings and the role of the Prosecutor and the Legal Representative is very minimal. The purpose of the Preliminary Inquiry is in the main to determine whether a child in conflict with the law could be diverted if the provisions of section 52 (1) of the Act are complied with. Preliminary Inquiry if properly used will have possible benefits for the South African Criminal Justice system in that cases involving children will be timeously be finalised and the turn around time for criminal cases in general will possibly improve. Same will translate in the confidence of the citizens being improved in the Justice system. The second element that is introduced by the Act is formalised diversion into the Criminal Justice System. Diversion had for a number of years before the coming into operation of the Child Justice Act been used in South Africa but it was informal. The diversion that is envisaged by the Act is restorative in nature in that the Act seeks to involve the child offender, the victim, the community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent recurrence of the incident and promoting reconciliation. Restorative Justice is not a new invention in the South African legal system it is a return to traditional patterns of dealing with conflict and crime that had been present in different cultures throughout human history. Restorative Justice has been understood as Ubuntu in the African context. The Truth and Reconciliation Commission demonstrated the benefits of restorative justice in dealing with conflicts that had a potential of setting the country alight. Restorative Justice has evolved in South Africa throughout different historical epochs up to the current legal conjuncture. It has now been endorsed with success in precedent setting cases in the High Courts of the Republic and the Child Justice Act has now fully institutionalised it into the Criminal Justice system. One hopes that it will be extended beyond cases involving children in conflict with the law but to adult accused persons. Various pieces of legislation attempt to endorse the principles of restorative justice but are not as comprehensive as the Child Justice Act. There are 4 instances where a matter may be diverted in terms of the Act: (i) By a Prosecutor in terms of section 41; (ii) Diversion at Preliminary inquiry; (iii) Diversion before the closure of state case at trial; (iv) At any time during trial but before judgement. There are 2 diversion options that are provided by the Act that is level one diversion option in respect of schedule 1 offences and level 2 diversion options in respect of schedule 2 and 3 which are much more serious. The Act further entrenches Family Group Conference as well as Victim Offender Mediation which are restorative justice mechanisms. The legal consequences of diversion are that when the child has successfully complied is equivalent to an acquittal. The last element is the multi sectoral approach to crime fighting in that all role players should work together in dispensing justice to children in conflict with the law. The days of working in silos are now over because everybody has a role to play and there has to be collaboration at all levels. The Act entrenches the public private partnerships particularly in helping to rehabilitate and reintegrate children to society. The Act provides for the establishment of One Stop Child Justice Centres. The purpose is to promote cooperation between government departments, non governmental organisations and civil society to ensure integrated and holistic approach in the implementation of the Act. The Act further provides for the development of the National Policy Framework by the Departments of Justice and Constitutional Development, Social Development, Correctional Services, South African Police Services, Education and Health within 2 months of the commencement of the Act. The purpose is to ensure uniform, coordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters of child justice and enhance service delivery. This study seeks to examine the innovations brought about by the Child Justice Act into the South African Criminal Justice System. The study further explores the possible benefits that may accrue to the Criminal Justice System because of Preliminary Inquiry, Restorative Justice and the Multi Sectoral Approach to crime.

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18

Kulundu, Kenneth Wanyama. "South Africa and the International Criminal Court: investigating the link between complimentarity and implementation." Thesis, Rhodes University, 2006. http://hdl.handle.net/10962/d1003194.

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Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.

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19

Funk, Antje Elisabeth Margarete. "Criminal liability of Internet providers in Germany and other jurisdictions." Thesis, Stellenbosch : Stellenbosch University, 2004. http://hdl.handle.net/10019.1/70134.

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Thesis (LLM)--Stellenbosch University, 2004
ENGLISH ABSTRACT: This thesis deals with the criminal liability of Internet providers. The focus is on Germany, but the analysis is put in a wider, comparative context. This is done with reference to South Africa, as well as Europe and the American system. This thesis demonstrates and discusses the existing legal norms to regulate Internet provider liability for illegal content on the Internet and the international efforts to deal with this issue. In the introduction it is shown how the Internet has given rise to a new form of global communication and the accompanying legal problems. This is followed by an examination of the different functions Internet providers have. A survey of some of the important crimes affecting the Internet and also some Internet-specific offences put the more general issue of liability in a more specific context. Traditional and new forms of crimes are discussed. This section is followed by an analysis of Internet provider liability under German criminal law and Germany's Teleservices Act. From an international criminal law perspective some international instruments, like the Cybercrime Convention of the Council of Europe, is discussed. National legislation, especially in the context of the European Union, must always be put in the proper regional and international context. The thesis concludes with some thoughts on alternative, or perhaps complementary, methods to fight illegal and criminal conduct on the Internet. This is done not as a critique of the responses to Internet crime, but rather to strengthen the many hands trying to reduce Internet crime.
AFRIKAANSE OPSOMMING: Hierdie tesis handeloor die strafregtelike aanspreekliheid van Internet diensverskaffers. Die fokus val op Duitsland, maar die analise word ook geplaas in 'n wyer, vergelykende konteks. Dit word gedoen met verwysing na Suid-Afrika, sowel as Europa en die VSA. Die tesis demonstreer en bespreek die bestaande regsnorme wat Internet diensverskaffers reguleer met spesifieke verwysing na aanspreeklikheid vir onwettige inhoud op die Internet en internasionale pogings om hierdie probleem aan te spreek. Ter inleiding word daar aangetoon hoe die Internet aanleiding gee tot nuwe vorme van globale kommunikasie en die regsprobleme wat dit tot gevolg het. Dit word gevolg deur 'n ondersoek na die verskillende funksies van Internet verskaffers. 'n Ontleding en bespreking van Internet-spesifieke misdrywe plaas die meer algemene vraagstuk in 'n meer gefokusde konteks. Tradisionele en nuwe vorme van misdaad word bespreek. Hierdie afdeling word gevolg deur 'n ontleding van Internet diensverskaffer aanspreeklikheid ingevolge Duitse reg en die Duitse wetgewing op die terrein van telediens. Uit 'n internasionale strafreg oogpunt word sekere internasionale instrumente, soos die Cybercrime Convention van die Raad van Europa, bespreek. Nasionale wetgewing, veral in die konteks van die Europese Unie, word ook in die relevante regionale en internasionale konteks geplaas. Die tesis word afgesluit met sekere gedagtes oor alternatiewe, of moontlik komplimentêre, metodes in die stryd teen Internet-kriminaliteit. Dit moet nie gesien word as kritiek op die huidige stand van sake nie, maar eerder as 'n poging om die talle rolspelers in die stryd teen Internet misdaad se hande te sterk.

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20

Isaacs, Alfred Eugene. "The challenges posed by mandatory minimum sentence legislation in South Africa and recommendations for improved implementation." University of the Western Cape, 2004. http://etd.uwc.ac.za/index.php?module=etd&amp.

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Generally the Courts have a discretion to impose sentence. Violent crime was rampant in South Africa. The response of the legislature in dealing with crime was to enact legislation in 1997 like sections 51 to 53 of the Criminal Law Amendment Act 105 of 1997 which prescribe severe mandatory sentences for a large number of serious offences like murder, rape and armed robbery. This legislation come into effect on 1 May 1998 and was to have effect for two years. The President could with the concurrence of Parliament by proclamation extend its operation for one year, that was in fact done. The latest extension of the Criminal Law Amendment Act 105 of 1997 was for a further two years making the minimum sentence provisions valid until 30 April 2005. The Courts did not like these mandatory sentences because of the limitation it places on judicial discretion and dealt with this legislation that limited their judicial discretion restrictively in order to defend their sentencing discretion. Although the Criminal Law Amendment Act of 105 of 1997 was held not to be unconstitutional the Courts stll sought to give it a narrow interpretation. This research paper include an outline of the Criminal Law Amendment Act
the Constitutional challenges that were brought against the Criminal Law Amendment Act
the judicial interpretation of the Criminal Law Amendment Act as well as the applicability of the Criminal Law Amendment Act to District Courts and juvenile ovenders
the procedural requirements that must be complied with in the Criminal Law Amendment Act and its consequences if not complied with. This paper examined how the Courts defined substantial and compelling circumstances, the approaches adopted by the Courts and when deviation from the Criminal Law Amendment Act can take place. It also include the challenges posed by mandatory minimum sentence legislation as well as recommendations for the improved implementation of the Criminal Law Amendment Act.

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21

Agbonjinmi, Ayodeji Peter. "Enforcement of criminal offences in terms of the National Water Act 36 of 1998." Thesis, University of Limpopo, 2007. http://hdl.handle.net/10386/582.

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Thesis (LL.M. (Environmental law and Management)) --University of Limpopo, 2007.
The purpose of this thesis was to critically examine the enforcement of environmental regulations with special reference to the enforcement of offences in the National Water Act 36 of 1998. “Enforcement” was conceptualized as “power” the exercise of which is constrained by the constitutionally guaranteed rights, especially the rights contained in Chapter 2 of the Constitution of the Republic of South Africa Act 108 of 1996 – the Bill of Rights. “Compliance” was conceptualized as a rational action. The polluter is both a rational economic actor as well as a rational political actor. “Enforcement” and “Compliance” were further considered as economic activities with costs and benefits. The “responsive enforcement and compliance” model was also adopted in this thesis. Environmental regulation is contentious because of the failure to adequately distinguish environmental crimes (mala prohibita) from common law crimes (mala in se) and the erroneous believe in the immutability of law especially pro-defendant procedural rights in criminal prosecution. This failure to distinguish environmental crimes from common law crimes resulted in the requirement of the proof of mens rea in criminal prosecution for breach of environmental law. Arguments were advanced to show that mens rea can easily be proved in environmental law areas of land use and development and resource conservation while it is a Herculean task for the prosecutor to prove mens rea in waste disposal and pollution offences. Arguments were also advanced, in terms of s. 24 of the 1996 Constitution and s. 2 of the National Environmental Management Act 107 of 1998, to show that “sustainable development” and the principles derived therefrom, especially the “precautionary principle” and the “polluter–pays principle”, are part of the corpus of South African constitutional and statutory laws. The “precautionary principle” and the “polluter-pays principle” have assumed the status of customary international law, and consequently part of South African laws in terms of s. 232 of 1996 Constitution. The provisions of s. 24(b) of 1996 Constitution prescribed both positive and negative duties for the state in respect of environmental regulation and prescribed the ambit of environmental regulation in South Africa. The “precautionary principle” is interpreted as deliberation guiding in form and a legal rule in content. The “precautionary principle” as a rule guides the actions of organs of state and other environmental stakeholders. The “polluter-pays principles” is interpreted as a legal rule which should be applied in the “all-or-nothing” sense. Arguments were advanced for the application of the “polluter-pays principles” in criminal prosecution. The legal effect of the application of “polluter-pays principle” in criminal prosecution for environmental crimes is to negative mens rea and transform environmental crimes to strict liability offences. In the environmental law areas of land use and development and resource conservation where mens rea is easily provable, the application of the “polluter-pays principle” would limit the prosecutor’s duty to proving, beyond reasonable doubt, the acts that constitute the offence against the accused. Thereafter, it is opened to the accused to prove, on scale of probabilities, that he lacks the mens rea (dolus or culpa) necessary for conviction. In the area of waste disposal and pollution control where proof of mens rea is difficult, the application of the “polluter-pays principle” should result in the application of the rule in Rylands Fletcher. All the prosecutor need do to obtain conviction is to prove, beyond reasonable doubt, the acts that constitute the offence against the accused. The Reconstruction and Development Programme (RDP) is identified and recognized as the dominant social paradigm (DSP) in South Africa. It is within the context of this DSP that environmental regulation is situated. Examining the penal provisions in the National Water Act 36 of 1998 against the background of the DSP, one is not left in doubt why the water pollution and degradation offences in the Act are fault-based. The DSP also partly accounts for the subordination of criminal law to administrative and civil judicial procedures in the enforcement of offences in the NWA 36 of 1998. Offences in the NWA 36 of 1998 were classified into 5 groups– failure crimes, reporting crimes, fraud crimes, obstruction crimes and environmental injury crimes. The failure crimes, reporting crimes, fraud crimes and obstruction crimes are common law crimes (mala in se) in the environmental law context, they are therefore subject to criminal prosecution like any other common law crime. Most of the environmental injury crimes are subject to administrative and civil judicial penalties, that is, the criminal sanction is subordinated to administrative and civil enforcement. The water pollution and degradation offences in s. 151 (1)(i)(j) of NWA 36 of 1998 are fault-based. In a water stressed country, this is a subsidy to industry for job creation and poverty eradication as dictated by the DSP– the RDP. However, in the prosecution for water pollution and degradation offenses, the application of the “polluter-pays principle” would negative mens rea. The legal effect is that in any prosecution for water pollution or degradation, to secure conviction, the prosecutor is only expected to prove the acts constituting the offence beyond reasonable doubt. It is thereafter open to the accused to the prove, on scale of probabilities, that he lacked either the dolus or culpa required to ground conviction. Since different cast of players are responsible for environmental protection and criminal prosecution (the National Prosecution Authority), coordination amongst the environmental agency, the prosecuting authority and the police is recommended. This can be achieved, inter alia, through joint participation in national enforcement conferences and joint participation in environmental task forces.

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22

Machitela, Malesela Abram. "Critical analysis of how the South African criminal law addresses cybercbullying." Diss., University of Pretoria, 2019. http://hdl.handle.net/2263/73398.

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The work deals with shortcomings in the South African Criminal Law in respect of how to addresses cyberbullying crime. The report focus on how American Legislation deals with cyberbullying as compared to South African Legal framework. The work critically analyses the the South African legislation dealing with cyberbulying as a criminal offence.
Dissertation (LLM)--Universtity of Pretoria, 2019.
None
Procedural Law
LLM
Unrestricted

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23

Grobler, Chazanne. "An Analysis of the Cultural Defence in South African Criminal Law." Diss., University of Pretoria, 2014. http://hdl.handle.net/2263/46121.

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South Africa is a multi-cultural country priding itself on the fact that its Constitution protects the vulnerable, minorities, and all those who do not have a voice to speak for themselves. The right to participate in, and enjoy, the culture of one’s choice is specifically protected in sections 30 and 31 of the Constitution, and the law of the land has a duty to fulfil this obligation. The protection of cultural rights stems from the fact that the cultural identity of a person plays an integral part in every person’s life. Culture shapes the way a person thinks and acts. Certain crimes can be committed as a result of the cultural beliefs of a person. One of the most prominent, culturally-motivated crimes that take place in South Africa is witchcraft-related killing. The belief in witchcraft is used throughout this study to illustrate the need for, and use of, the cultural defence. The legal culture that currently dominates criminal law was shaped by colonialism and Apartheid. During the analysis of the legal responses in criminal cases, and, specifically, witchcraft-related crimes, society did not deal with the cases in the light of the Constitutional duty to protect the right to culture. Cultural rights within criminal law need still to be explored. In order to bridge the gap in criminal law between the right to participate in, and enjoy, the cultural life of one’s choice, and the fact that culture influences the way an individual thinks and acts, it is submitted that the cultural defence should be formalised. The cultural defence can be defined simply as a legal strategy that will enable a court to consider how the cultural background of an accused person has affected his or her behaviour. The cultural defence, if formalised, will be a multiple defence, striking at the elements of capacity and fault. When a person is confronted with a dangerous or threatening situation, he or she will act instinctively. The roots of the unconscious behaviour in dangerous situations are culturally shaped. Culture can, therefore, be a great driving force, and, as a result, influence the capacity of a person to act. With regard to intention, the court will need to take cognisance of the cultural beliefs of the person and how they influenced the state of mind of the accused at the time the crime was committed. This study takes an in-depth look at the elements of capacity and fault and how cultural beliefs should be incorporated within these elements. The cultural defence does not, however, cater for any common and garden variety of criminal and, therefore, specific guidelines need to be set in place to prevent any abuse. This study will illuminate all the possible problems and solutions relative to the defence to determine whether the formalisation of the defence will be the best manner to develop criminal law in line with the Constitution. It is submitted that the cultural defence, if properly applied within the parameters set out in the study, should be formalised as its advantages will outweigh its disadvantages.
Dissertation (LLM)--University of Pretoria, 2014.
tm2015
Public Law
LLM
Unrestricted

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24

Lamprecht, Adriaan Matthys. "The use of closed-circuit television in South African criminal courts." Diss., University of Pretoria, 2019. http://hdl.handle.net/2263/73091.

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In the last decade the use of closed-circuit television or similar electronic devices (CCTV) has started to play a significant role in courtrooms, both as a silent witness and as a device through which to receive testimony. The benefits of optimising the use of CCTV for receiving testimony are numerous. This paper focusses on two, namely easier access to justice through criminal courts, and bridging the gap between the protective measures created by legislation with regard to vulnerable witnesses and the effective implementation of said measures. The requirements for using CCTV to receive testimony, if interpreted in a reasonable way, does not limit the type of device or facility to be used. It merely stipulates that the facilities at a remote point be overseen by a designated official, and that the device to be used must allow all parties, both at the court point and at the remote point, to hear and see the other parties, and to be able to follow the proceedings. In recent years technology has advanced to such an extent that audio-visual capable devices are readily available. It is proposed that if the above interpretation is followed, the facilities through which testimony can be given by means of CCTV need not be stationary, it can travel to where it is needed thereby making courts more accessible, and alleviating trauma with regards to vulnerable witnesses who can testify at a designated buildings and no longer needs to go to court, a place designed to be intimidating.
Mini Dissertation (LLM)--University of Pretoria, 2019.
Procedural Law
LLM
Unrestricted

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25

Ndawula, Barnabas. "Criminalisation of HIV/AIDS in South Africa: a critical look at the Criminal Law (Sexual offences and related matters) Amendment Act 32 of 2007." Thesis, Nelson Mandela Metropolitan University, 2010. http://hdl.handle.net/10948/1280.

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Human Immuno Virus (HIV) and Acquired Immuno Deficiency Syndrome (AIDS) have formed part of the South African landscape since the first report in 19831and today South Africa is reported to be the country with the highest number of people living with HIV/AIDS in the World2. This state of affairs, in combination with South Africa’s high sexual crime rate resulted in a general public out-cry with calls for the government and the legislature to enact laws to stem the spread of HIV/AIDS3. Government and the legislature finally responded by way of promulgating the criminal law (sexual Offences and related matters) Amendment Act4 (hereinafter the sexual Offences Act). The Sexual Offences Act inter alia provides for the compulsory testing of alleged offenders of sexual crimes5 This treatise will show that chapter five of the sexual Offences Act, indirectly criminalises HIV/AIDS, and that this is not desirable. It will be submitted that the criminalisation of HIV is against the stated UNAIDS policy 6 It is finally submitted in this treatise that South Africa should repeal all provisions in its law that directly or indirectly criminalises HIV/AIDS transmission and instead follow both and is a deterrent to public health methods of curbing the epidemic, while at the same time exacerbates the spread of the epidemic by forcing people who are HIV positive not to openly come out. It will be argued in the use of criminal law against the transmission of HIV creates stigma and is also an attack on individual human rights. The study will also show that the supposed marginalised persons, such as women and children are not protected by the use of criminal law in the prevention of HIV transmission, contrary to the arguments of the proponents of those who support the use of criminal law. The study will show that far from protecting these marginalised groups of people, criminalisation of HIV transmission, does in fact hurt them the UNAIDS policy and the South African development corporation (SADC) Model Law on HIV and AIDS.

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26

Jordaan, Jason. "An examination of validation practices in relation to the forensic acquisition of digital evidence in South Africa." Thesis, Rhodes University, 2014. http://hdl.handle.net/10962/d1016361.

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The acquisition of digital evidence is the most crucial part of the entire digital forensics process. During this process, digital evidence is acquired in a forensically sound manner to ensure the legal admissibility and reliability of that evidence in court. In the acquisition process various hardware or software tools are used to acquire the digital evidence. All of the digital forensic standards relating to the acquisition of digital evidence require that the hardware and software tools used in the acquisition process are validated as functioning correctly and reliably, as this lends credibility to the evidence in court. In fact the Electronic Communications and Transactions Act 25 of 2002 in South Africa specifically requires courts to consider issues such as reliability and the manner in which the integrity of digital evidence is ensured when assessing the evidential weight of digital evidence. Previous research into quality assurance in the practice of digital forensics in South Africa identified that in general, tool validation was not performed, and as such a hypothesis was proposed that digital forensic practitioners in South Africa make use of hardware and/or software tools for the forensic acquisition of digital evidence, whose validity and/or reliability cannot be objectively proven. As such the reliability of any digital evidence preserved using those tools is potentially unreliable. This hypothesis was tested in the research through the use of a survey of digital forensic practitioners in South Africa. The research established that the majority of digital forensic practitioners do not use tools in the forensic acquisition of digital evidence that can be proven to be validated and/or reliable. While just under a fifth of digital forensic practitioners can provide some proof of validation and/or reliability, the proof of validation does not meet formal international standards. In essence this means that digital evidence, which is preserved through the use of specific hardware and/or software tools for subsequent presentation and reliance upon as evidence in a court of law, is preserved by tools where the objective and scientific validity thereof has not been determined. Since South African courts must consider reliability in terms of Section 15(3) of the Electronic Communications and Transactions Act 25 of 2002 in assessing the weight of digital evidence, this is undermined through the current state of practice in South Africa by digital forensic practitioners.

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27

Fine, Hilton Basil. "The history of the Cape Supreme Court and its role in the development of judicial precedent for the period 1827-1910." Master's thesis, Faculty of Law, 1986. https://hdl.handle.net/11427/31980.

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Hahlo and Khan have aptly described South African law as a ‘three-layered cake’. This dissertation is not so much concerned with the ingredients of the cake, but with the Cape Supreme Court which was used to ‘bake’ the third layer, and the judges who were employed to supervise the task. However, in order t wet the appetites of the legal gourmets, an attempt has been made to analyse the ingredient of judicial precedent, and to serve it up in the form of ‘icing’.

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28

Niesing, Gysbert. "The admissibility of unconstitutionally obtained evidence : issues concerning impeachment." Thesis, Stellenbosch : Stellenbosch University, 2005. http://hdl.handle.net/10019.1/50465.

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Thesis (LLM)--University of Stellenbosch, 2005.
ENGLISH ABSTRACT: The law regarding the admissibility of unconstitutionally obtained evidence for impeaching the accused's testimony is still undeveloped. This work discusses three of the options available to South African courts and the difficulties inherent in each. The first is to follow the approach of the Supreme Court of the United States. The American approach regarding the exclusion of evidence from the case in chief is strict. Courts are not bestowed with a discretion to admit unconstitutionally obtained evidence: Unless one of the accepted exceptions exist, a court must exclude unconstitutionally obtained evidence in order to deter unconstitutional behaviour by the authorities. Deterrence of unconstitutional police behaviour is however no longer considered controlling when cross-examining the accused. Unconstitutionally obtained evidence - both real and testimonial communications - is therefore admissible for impeachment purposes despite being excluded from the case in chief. The rationale is to prevent the accused giving perjurious testimony in the face of the prosecution's inability to impeach the accused's veracity in the usual manner. The application of the American approach in South Africa has however already been rejected in S v Makhathini.1 The second possibility is for South African courts to follow the position of the Supreme Court of Canada in R v Calder.2 The admissibility of impeachment evidence in Canada - as with evidence in chief - is based on the effect of its admission of the repute of the administration of justice. However, evidence excluded from the case in chief will only in very rare circumstances be admitted in cross-examination of the accused. Finally, the option suggested by this thesis, is to continue the trend started by s 35(5) of the South African Constitution, which has already been applied with great success in cases where the admissibility of unconstitutionally obtained evidence in the case in chief is in issue. Section 35(5), like the Canadian s 24(2) it bears some resemblance to, gives courts a discretion to exclude unconstitutionally obtained evidence on the basis of unfairness to the accused or the effect admission will have on the administration of justice. It is submitted in this thesis that, because of the interlocutory nature of a ruling on admissibility, this approach adapts easily to the admission of limited purpose evidence such as impeachment evidence: If the admission of the unconstitutionally obtained evidence, regardless of whether it was previously excluded from the case in chief, renders the trial unfair or would otherwise be detrimental to the administration of justice it must be excluded.
AFRIKAANSE OPSOMMING: Die reg in verband met die toelaatbaarheid van ongrondwetlik verkree getuienis vir 'n geloofwaardigheidsaanval op die beskuldigde is nog in 'n vroee stadium van ontwikkeling. Hierdie tesis bespreek drie moontlikhede beskikbaar aan Suid-Afrikaanse howe en die probleme inherent aan elkeen. Die eerste is om die posisie van die Amerikaanse Hooggeregshof te volg. Die Amerikaanse posisie betreffende die toelaatbaarheid van getuienis tydens die staat se saak is streng. Howe het geen diskresie om ongrondwetlik verkree getuienis toe te laat nie: Behalwe in gevalle waar aanvaarde uitsonderings bestaan, moet 'n hof dus ongrondwetlik verkree getuienis uitsluit om ongrondwetlike optrede deur die owerhede te voorkom. Voorkoming van ongrondwetlike optrede aan die kant van die polisie is egter nie meer die beherende oorweging wanneer die beskuldigde in kruis-ondervraging geneem word nie. Ongrondwetlik verkree getuienins - beide reel en verklarend van aard - is gevolglik toelaatbaar vir doeleindes van 'n geloofwaardigheidsaanval, ten spyte daarvan dat dit moontlik ontoelaatbaar was tydens die staat se saak. Die rede is om te voorkom dat die beskuldigde meinedige getuienis lewer terwyl die staat verhoed word om the bekuldigde se geloofwaardigheid op die gewone manier te toets. Hierdie posisie is egter al verwerp in S v Makhathini. 3 Die tweede moontlikheid is om die posisie soos uitgele deur die Hooggeregshof van Kanada, in R v Calder 4 te volg. In Kanada word die toelaatbaarheid van getuienis rakende geloofwaardigheid - sowel as getuienis rakende skuld - bepaal deur die invloed wat die toelating daarvan op die reputasie van die regspleging het. Getuienis wat ontoelaatbaar is tydens die staat se saak sal egter slegs in baie beperkte omstandighed toegalaat word tydens kruisondervraging van die beskuldigde. Laastens, die opsie wat voorgestel word deur hierdie tesis, is om voort te gaan met die patroon wat ontwikkel is deur art. 35(5) van die Grondwet van Suid-Afrika, wat alreeds met groot sukses toegepas is in sake waar die toelaatbaarheid van ongrondwetlik verkree getuienis in die staat se saak ter sprake was. Artikel 35(5), soos Kanada se art 24(2) waarmee dit tot 'n mate ooreenstem, gee howe 'n diskresie om ongrondwetlik verkree getuienis uit te sluit op grond van onregverdigheid teenoor die beskuldigde of indien die toelating daarvan 'n negatiewe invloed op die regspleging sal he. Omdat 'n beslissing oor die toelaatbaarheid van getuienis tussenstyds van aard is, pas dit goed aan by die verdere ondersoek na die toelaatbaarheid van getuienis wat slegs VIr 'n beperkte doel aangebied word: Indien die toelating van ongrondwetlik verkree getuienis, ongeag of dit voorheen uitgesluit was uit die staat se saak, die verhoor onregverdig maak of die regspleging negatiefbeinvloed, moet sulke getuienis uitgesluit word.

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29

Pelgrim, Riekje. "Witchcraft and policing South Africa Police Service attitudes towards witchcraft and witchcraft-related crime in the Northern province /." Leiden : African Studies Centre, 2003. http://hdl.handle.net/1887/12920.

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30

Ndzengu, Nkululeko Christopher. "The war againts organised crime: a critical assessment of South African asset forfeiture law and its impact on redress for victims of crime." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/905.

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This research will be undertaken in the field of both criminal and civil law with particular focus on international interventions in the fight against organized criminal activities, assets forfeitsure in South Africa in general and its treatment of victims of the underlying forfeitsure crimes ("the victims") in assert forfeitsure, more specifically.

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31

Van, der Merwe Abrie. "An analysis of assisted dying and the practical implementation thereof in South African criminal law." Diss., University of Pretoria, 2017. http://hdl.handle.net/2263/65628.

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This dissertation will examine the legality of assisted dying procedures performed in the Republic of South Africa. This is due to the rising awareness about terminal patients’ dignity and autonomy at the end of their life. The physician’s liability, who assists such a patient to end their life, will be examined and whether there is any legal recourse available will be explored. Comparisons will also be made between other legal systems, including Canada, the Netherlands, Oregon of the United States of America and England and Wales. These jurisdictions have been chosen to provide a wide variety of perspectives and possible alternatives that South Africa should take into consideration should parliament or the courts decide to argue the matter. Other sources are also considered, such as the influence of the history and development of the common law crime of murder, as well as the role the Health Professions Council of South Africa will play. Possibly most importantly, the material criminal law of South Africa is thoroughly studied with all forms of assisted dying in mind. This is to establish what kind of liability, criminal or otherwise, a physician might incur should they decide to assist a patient in these circumstances. Lastly, recommendations are made based on the research done throughout this dissertation, which would ideally assist in any future arguments made on the topic.
Dissertation (LLM)--University of Pretoria, 2017.
Public Law
LLM
Unrestricted

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32

Ramalohlanye, Zandile. "An assessment of the suitability of the criminal cartel offence in South African competition law." Master's thesis, University of Cape Town, 2013. http://hdl.handle.net/11427/9157.

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Includes bibliographical references
Section 73A of the Competition Amendment Act 1 of 2009 which will be inserted into the Competition Act 89 of 1998, will hold directors/executives criminally liable for infringing s4(1)(b) of the Competition Act. Section 4(1)(b) specifically prohibits firms from engaging in price-fixing, collusive tendering, market allocation which are regarded as egregious forms of activity. The underlying justification for the cartel offence is the protection of consumer welfare and on the other hand to address the under-deterrent nature of monetary administrative penalties in the fight against cartels. In its current form, s73A has several weaknesses which will negatively impact competition enforcement; particularly the leniency policy which is the Commission’s most effective weapon against cartelisation. The emergence of follow-on damages litigation as a legal remedy and class actions as a procedural mechanism in the bread class action, have paved the way for private competition enforcement as a more effective deterrent. The lack of a statutory regulatory framework compelled the courts to develop the common law regarding follow-on damages litigation and class actions. Although the exercise has highlighted the challenges associated with the lack of judicial guidance in developing directives, it has indicated that private competition enforcement is a pragmatic solution for cartelisation.

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33

Dean, O. H. "The application of the Copyright Act, 1978, to works made prior to 1979." Thesis, Stellenbosch : Stellenbosch University, 1988. http://hdl.handle.net/10019.1/4934.

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Thesis (LLD) -- Stellenbosch University, 1988.
Article 1 Section 8 Clause 8 of the Constitution of the United States of America empowers Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". This simple clause sums up in a few words the philosophy and underlying principles of modern copyright law. Copyright law, like other branches of intellectual property law (i.e. the laws of patents, trade marks and designs), seeks to create a system whereby the creator of original works or intellectual property is afforded a qualified monopoly in the use or exploitation of his work in order, first, to compensate and reward him for the effort, creativity and talent expended and utilized in the creation of his work, and secondly, to act as an incentive for him to use his talents and efforts to create more and better works or items of intellectual property. The qualified monopoly is limited in duration and after the expiry of the term the work falls into the public domain and can be freely used and reproduced by others. A balance is struck between the interests of the individual and the public interest. The rationale behind this philosophy is the establishment of a profit incentive for creators of intellectual property. The effectiveness of the profit motive is dependent upon the degree to which the creator of the intellectual property is able to maintain and enforce his qualified monopoly. If the law is not effective in enabling the creator of intellectual property to maintain and enforce his monopoly then the efficiency of the operation of the profit motive will be impaired. Consequently, the soundness and effectiveness of the law of copyright is a . significant factor in the promotion of the creation of intellectual property and ultimately• in enriching our culture and promoting our knowledge and well-being. Viewed from a different perspective, the purpose of copyright is to prevent one man from appropriating to himself what has been produced by the skill and labour of others1 . In broad terms, copyright may be described as the exclusive right in relation to a work embodying intellectual property (i.e. the product of the intellect) to do or to authorize others to do certain acts in relation to that work, which acts represent in the case of each type of work the manners in which that work can be exploited for personal gain or profit. Copyright is an immaterial property right. The subject of the right is a work of the intellect or spirit and thus an intangible. Copyright in a work is akin to ownership in a tangible article. The following analysis of the essential nature of copyright by Slomowitz AJ in Video Parktown North (Pty) Limited v Paramount Pictures Corporation is instructive: "It seems to me that when he who harbours an idea, by dint of his imagination, skill or labour, or some or all of them, brings it into being in tactile, visible or audible form, capable thereby of being communicated to others as a meaningful conception or apprehension of his mind, a right of property in that idea immediatelycomes into existence. The proprietary interest in that object of knowledge is the ownership of it and is called 'copyright'. It might just as well be called 'ownership', but we have chosen to call it by another name, reserving 'ownership' as the appellation for the proprietary interest in corporeal things, by way of semantic, but not, as I see it, legal, distinction. In this sense, copyright has sometimes been called 'intellectual property', as it indeed is. " Copyright subsists in the work of the intellect embodied in a material form which is a tangible article. The tangible or physical form of the work embodies two separate items of property, i.e. the copyright in the work of the intellect and the ownership of the tangible article. Ownership of the two items of property must be distinguished and can vest in different persons. Transfer of the ownership of one of the i terns of property does not necessarily affect transfer of the ownership of the other item of property.

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34

Silkstone, Christine. "Psychopathy in South African criminal case law between 1947 and 1999: an exploration of the relationship between psychology and law." Master's thesis, University of Cape Town, 2012. http://hdl.handle.net/11427/12009.

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This study drew on South African criminal case reports containing judicial pronouncements on psychopathy between 1947 and 1999 to explore the historical relationship between psychology and the law. In criminal law, where mental illness is alleged, the issue of responsibility arises. During the period of the study, there were important legal developments in the criminal law relating to criminal responsibility, including the formulation of a statutory test for capacity in 1977 that did away with the M’Naghten Rules and irresistible impulse principle, ... Diminished responsibility was also entrenched in the criminal law in the same Act. Psychopathy provided an interesting case study as, in terms of legal thinking, a diagnosis may indicate pathology but is not of a degree that it necessarily follows that it would be unreasonable to assign blame in law.

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Netto, Lauren Joy. "The development of a pro forma document for use in police rape investigations in South Africa." Thesis, Rhodes University, 2000. http://hdl.handle.net/10962/d1002540.

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This research developed a pro forma document for use in police rape investigations in South Africa. The immediate context for the research is the alarmingly high incidence of rape in South Africa. The rape statistics vary to an extent, largely due to the fact that a large proportion of the rapes that occur in South Africa are not reported to the police. These statistics expose the limited success of the South African Police Services (SAPS) in terms of investigating rape cases in this country, as well as the public perception of the effectiveness of the South African Police Services in this regard as evidenced by the non or under-reporting of rape in South Africa. The pro forma document is an investigative tool designed to standardise and systematise rape investigations by providing set guidelines for obtaining the essential information about each rape case. This is a prerequisite for Tender profiling, which involves predicting the relationship between offence and offender variables. Profiling can only be successful if the investigator obtains all the information about a crime. Hence the pro forma document, as an investigative instrument designed to access essential information about a crime, is a key requirement for the development of informed and accurate profiles of offenders. As a standardised form, the document will allow for systematic and thorough rape investigations in South Africa. The researcher employed the qualitative methodology of action research. This entailed involving the participants in all stages of the research process. The data was collected by means of focus group interviews with detectives from the Serious and Violent Crimes Unit and the Child Protection Unit in Grahamstown. Additional sources of data were various investigative documents that originated from a number of different countries. Analysis of the data followed a number of procedural steps specifically suggested for focus group interview research and involved a process of coding. The codes identified during the analysis provided the foundation for the items that were included in the pro forma document. In keeping with the action research approach, the participants were caned upon to evaluate the progress of the research after the initial data collection and analysis were completed, and a draft version of the pro forma document had been compiled. This feedback provided another source of data which contained suggestions for amendments to the pro forma document which the researcher implemented. The research process was hindered to a certain extent by the unpredictable nature of police work which influenced the data gathering procedure. This could point to a possible limitation of the research. Furthermore, the aim of the research was to develop a pro forma document for use in rape investigations in South Africa. This aim did not encompass marketing the document. Herein lies another possible limitation of the research in that the document has not yet been used and tested in real cases. A discussion of the research process includes issues involved in practically implementing the pro forma document in rape investigations.

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Dipa, Asanda. "The recognition of victims rights of sexual offences." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/d1014361.

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“Indeed in rape cases it is the victim who is most often placed on trial rather than the perpetrator, accused of having ulterior motives and subjected to degrading questions with often pornographic overtones. Prosecutors might fail to adequately address the victims needs and all too often, information is either intentionally or unintentionally withheld from victims.” The victims of sexual offences have to face not only the consequences of the sexual crime that was perpetrated upon them, but they also have to deal with the effects of the criminal justice system. Victims who take part in the criminal justice system should not be exposed to unnecessary distress and trauma. The victims of sexual offences must not be re-victimised by the criminal justice system. Re-victimisation has been coined to describe the experience where victims are subjected to further victimisation by the very state organs to whom they turn for assistance. This has the effect that the victim is victimised twice, first by the offender and then by the criminal justice system. It is therefore the duty of the law to protect this group of witnesses from such a traumatic and damaging experience. The question that needs to be answered in this research is whether the Sexual Offences and Related Matters Amendment has made any difference in respect of protection of victims sexual crimes. It was concluded that the Sexual Offences Act is indeed a step in the right direction to protect the rights of victims of sexual offences but that it could have afforded more protection.

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37

Hendriks, Renette. "Die aard van borgverrigtinge met spesifieke verwysing na die toepassing van die reels van die bewysreg op sodanige verrigtinge." Thesis, Stellenbosch : Stellenbosch University, 2004. http://hdl.handle.net/10019.1/21556.

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Thesis (LLM) -- Stellenbosch University, 2004.
Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: When evaluating a bail application, the court must take into consideration the interests of the accused against those of the community. The main goal of this assessment is to find a balance between said interests. While an application for bail is made at a stage where guilt has not been proven, it is of extreme importance that the court must not infringe on the fundamental rights of the accused which include the right to personal freedom and the presumption of innocence. In order to protect the rights of the bail applicant within the proper functioning of the legal system, it is important to determine the nature of bail proceedings. As shown in this thesis, bail proceedings are sui gelleris in nature, which means that a separate set of rules of the law of evidence is applicable to these proceedings. The object of this thesis is to identify the rules of law of evidence applicable to bail proceedings as well as to clarify the deviation from the normal rules of evidence which apply to the trial of the accused. In chapter one the purpose and nature of bail proceedings as well as the characteristics of accusatorial and inquisitorial systems, are discussed. Problem areas within the South African legal system with regards to bail applications are also highlighted in this chapter. In chapter two the application of the primary rules of the law of evidence with regards to bail proceedings are investigated as well as the admissibility of evidence pertaining to prior convictions of the applicant, opinion evidence and character evidence. In chapter three the admissibility of hearsay evidence at bail proceedings is discussed. The constitutionality of the privilege pertaining to the police docket is dealt with in chapter four. Chapter five deals with the infom1er's privilege. The requirements that have to be met in order to qualify for protection under the said privilege, are examined. Chapter six focuses on the privilege against self-incrimination and the manner In which it is applied in bail proceedings. The provisions of s 60(11B)(c) of the Criminal Procedure Act and the role of the presiding officer are also discussed in this chapter. Chapter seven focuses on the burden of proof in bail applications. Chapter eight contains a summary and recommendations.
AFRIKAANSE OPSOMMING: By die beoordeling van 'n borgaansoek moet die hof die be lange van die beskuldigde en die belange van die samelewing teen mekaar opweeg. Die doel van die betrokke verrigtinge is om 'n balans tussen hierdie belange te vind. Omdat borgtog ter sprake kom op 'n tydstip waar daar nog geen skuldigbevinding is nie, is dit van kardinale belang dat die hof ten aile tye moet waak teen die onregverdige inbreukmaking op die beskuldigde se fundamentele regte wat onder andere die reg op individuele vryheid en die vem10ede van onskuld insluit. Ten einde die regte van die borgaansoeker na behore te beskem1 sonder om die behoorlike funksionering van die regstelsel te belemmer, is dit belangrik om vas te stel wat die aard van borgverrigtinge is. Soos in hierdie tesis aangetoon word, is borgverrigtinge sui generis van aard. Dit het tot gevolg dat daar 'n aparte stel reels van die bewysreg bestaan wat op hierdie verrigtinge van toepassing is. In hierdie tesis word daar gepoog om die reels van die bewysreg wat op borgverrigtinge van toepassing is, te identifiseer en om die afwykings van die gewone bewysregreels wat op die verhoor van toepassing is, te verklaar. In hoofstuk een word die doel en aard van borgverrigtinge bespreek en word die kenmerke van die akkusatoriale en inkwisitoriale stelsels teen mekaar gestel. Die onduidelikhede oor die aard van borgverrigtinge in die Suid-Afrikaanse reg word ook aangeraak. In hoofstuk twee word die toepassing van die relevantheidsgrondreel by borgverrigtinge ondersoek, asook die toelaatbaarheid van getuienis oor die vorige veroordelings van die beskuldigde, opiniegetuienis en karaktergetuienis. Hoofstuk drie het betrekking op die toelaatbaarheid van hoorsegetuienis by borgverrigtinge. In hoofstuk vier word kwessies rakende dossierprivilegie behandel en die grondwetlikheid van sodanige privilegie, asook die toepassing daarvan, word van naderby beskou. In hoofstuk vyf word daar gefokus op die aanbrengersprivilegie. Die aard en toepassing van die privilegie asook die vereistes waaraan voldoen moet word alvorens daar op die betrokke privilegie gesteun kan word, word aangeraak. Hoofstuk ses fokus op die borgapplikant se privilegie teen selfinkriminasie. Die bepalings van a 60(11 B)(c) asook die rol van die voorsittende beampte word ook in hierdie hoofstuk aangespreek. Die sewende kwessie wat in verband met borgverrigtinge in die stu die ondersoek word, is die ligging van die bewyslas by sodanige verrigtinge. Dit word In hoofstuk sewe gedoen. Hoofstuk agt bevat 'n opsomming van sowel bevindings as aanbevelings.

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38

Fourie, Melanie. "Prosecuting sexual abuse of children : enhancement of victims rights vs protection of constitutional fair trial rights." Thesis, Stellenbosch : Stellenbosch University, 2005. http://hdl.handle.net/10019.1/50431.

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Thesis (LLM)--Stellenbosch University, 2005.
ENGLISH ABSTRACT: In 2002 the South African Law Commission published a report in which amendments to the existing rules of criminal procedure and evidence were proposed. A number of these recommendations have since been included in a Bill that was tabled before Parliament in 2003. The proposed amendments largely reflect values which underlie the "Victims' Rights" movement. The aim of this thesis is to consider the possible influence of these amendments on the constitutionally guaranteed fair trial rights of the accused. The study focuses on those amendments that play a role in the prosecution of alleged sexual offences against children, and shows that although the recognition of victims' rights is important, it should not be done at the expense of a fair trial. Dangers inherent to the proposed amendments are therefore highlighted. The rights of the accused are used to test the desirability or not of the proposed amendments. Foreign authority is used to support the argument made in the thesis.
AFRIKAANSE OPSOMMING: In 2002 het die Suid-Afrikaanse Regskommissie 'n verslag gepubliseer waann veranderings aan die huidige strafprosesreg- en bewysregreëls voorgestel word. 'n Aantal van hierdie voorgestelde wysigings is intussen opgeneem in 'n Wetsontwerp wat in Augustus 2003 voor die Parlement gedien het. Die voorgestelde wysigings reflekteer tot 'n groot mate waardes wat die "Victims' rights" beweging onderlê. Die doel van hierdie tesis is om die moontlike invloed van hierdie wysigings op die grondwetlik verskanste billike verhoor regte van die beskuldigde te ondersoek. Die ondersoek fokus op daardie veranderinge wat 'n rol speel in die vervolging van beweerde geslagsmisdade teen kinders. Daar word aangetoon dat alhoewel die erkenning van regte vir slagoffers belangrik is, dit nie ten koste van 'n regverdige verhoor gedoen kan word nie. Gevare verbonde aan die voorgestelde wysigings word dus uitgewys. Die regte van die beskuldigde word deurgaans gebruik om die wenslikheid al dan nie van die voorgestelde wysigings aan te toon. Buitelandse gesag word aangewend om die betoog te ondersteun.

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Davids, Fuad Aldred. "“Compliance and enforcement: The Legal Suitability of the Utilisation of Criminal Sanctions in South African Environmental Law”." University of the Western Cape, 2020. http://hdl.handle.net/11394/8072.

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Magister Legum - LLM
In this thesis I analysed the suitability and effectiveness of the criminal sanction with regards to compliance and enforcement in South African environmental law. My central argument is that the criminal sanction is not the perfect mechanism to address compliance and enforcement in South African environmental law sufficiently. Compliance and enforcement of South African environmental law has been a stumbling block for years since the implementation of the first piece of environmental legislation. Thus I explored compliance and enforcement in South Africa and identified the various issues that might be the reasons why compliance and enforcement in South African environmental law is not up to standard. I also analysed criminal environmental enforcement and came to the conclusion that criminal law is not suitable for the exclusive enforcement of environmental law. The conclusion was drawn by also analysing the criminal environmental enforcement statistics and the administrative compliance and civil action statistics of 2014-2019 in South Africa. Criminal law possesses too many inherent weaknesses and with our overcrowded criminal justice system there is no capacity for presiding officers to properly apply their mind when adjudicating environmental offences Thus I explored the alternatives to the criminal sanction and discussed and evaluated the different compliance and enforcement mechanisms in our legislative framework. I came to the conclusion that our legislative framework is sufficient to deal with environmental offences and that no new pieces of legislation need to be passed. There are various other compliance and enforcement mechanisms within our legislative framework that are better suited to deal with environmental offences.I came to the conclusion that the reasons for South Africa’s failure in compliance and enforcement in environmental law is due to those responsible for compliance and enforcement lacking the necessary capacity, skill and resources to firstly ensure that the laws are complied with and enforce it when it is not complied with. I also argue for the resurrection of environmental courts in South Africa in light of the successes in foreign jurisdictions. My concluding argument is that the criminal sanction still has a role to play in environmental compliance and enforcement in South Africa, however not as a primary mechanism.

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Van, der Merwe Annette. "Aspects of the sentencing process in child sexual abuse cases." Thesis, Rhodes University, 2006. http://hdl.handle.net/10962/d1003211.

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This thesis investigates current sentencing practices relating to the diverse, complex and emotionally laden phenomenon of child sexual abuse. It focuses on relevant legislative provisions, on case law and on an empirical study conducted amongst regional court magistrates. Trends, developments and problems are analysed and possible solutions to the main problems identified are investigated. The thesis concludes with proposed guidelines regarding the sentencing process in child sexual abuse cases. Such guidelines address general and specific principles, the use of victim impact statements, the increased recognition and use of behavioural science in the sentencing phase with regard to both the victim and the offender, and relevant aggravating and mitigating factors. The guidelines are an attempt to give some structure to the current haphazard approach adopted by the courts with regard to harm experienced by the victim. They are also aimed at assisting experts to provide more effective and reliable pre-sentence reports. Further, the thesis attempts to provide clarity concerning the factors that are considered to be aggravating or mitigating in the offence category, child sexual abuse, as well as with regard to the weight that should be attached to them. In addition, recommendations are made for the purpose of possible law reform and further research in relation to the regulation of judicial discretion through the introduction of formal sentencing guidelines, victim impact statements and the accommodation of behavioural science in the sentencing process pertaining to sexual offenders. This proposal is based on current South African sentencing practices as reflected in the consolidation of local judgments scattered over many years in different law reports and, to some extent, on English, Canadian, Australian and American sentencing practices as researched in this study.

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Spamers, Marozane. "A critical analysis of South African mental health law : a selection of human rights and criminal justice issues." Thesis, University of Pretoria, 2016. http://hdl.handle.net/2263/60097.

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This thesis is concerned with determining whether South African mental health law and its application in practice is in need of reform. In order to reach its objectives, the thesis measures mental health legislation and criminal law that affect the mentally ill individual or offender against international and local human rights standards, and generally accepted principles and scientific principles applicable in the mental health profession. Particular focus is placed on the admission of a mentally ill person as a voluntary, assisted or involuntary mental health care user, State Patient or mentally disordered prisoner in terms of the Mental Health Care Act 17 of 2002 (?MHCA?), as well a critical review of the MHCA forms used to translate the Act?s provisions into practice. The thesis critically discusses the regulation of mental health care practitioners in terms of the Health Professions Act 56 of 1974, including psychology and psychiatry and the expert witness, and the new Traditional Health Practitioners Act 22 of 2007 and its regulations. An outline of the role of the National Health Act 61 of 2003 in the administration of the health system is provided.The thesis analyses the manners in which mental health affects criminal liability, and Chapter 13 of the Criminal Procedure Act 51 of 1977. Finally a desktop study into the current state of mental health care provision and the implementation of legislation in practice is conducted, followed by conclusions and recommendations for reform to legislation, policy, and the MHCA forms where anomalies have been identified.
Thesis (LLD)--University of Pretoria, 2016.
Public Law
LLD
Unrestricted

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Burke, Christopher Leslie. "A critical assessment of the exercise of universal jurisdiction by South African courts." Thesis, Stellenbosch : Stellenbosch University, 2015. http://hdl.handle.net/10019.1/97062.

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Thesis (LLM)--Stellenbosch University, 2015
ENGLISH ABSTRACT : Universal jurisdiction is a relatively new concept in South Africa and a rather controversial concept in international criminal law. It is often discussed but rarely applied. Universal jurisdiction refers to the power of a State to punish certain crimes irrespective of where they were committed. Such crimes need not be connected to the State in question via the more traditional links of territory, nationality or direct State interest. These crimes are typically the worst crimes in international law such as genocide, war crimes and crimes against humanity. The argument goes that those who commit these types of offences become hostis humani generis, or the enemies of all mankind. Therefore just like the pirate of old any nation that captures them is entitled to exercise its jurisdiction over them, on behalf of all mankind. But at the same time a feature and founding principle of international law is the sovereign equality of States. And under international law criminal jurisdiction is a prerogative of sovereign States. States have territorial jurisdiction over crimes committed within their territory, for having control over a territory is essentially what it means to be sovereign. This means that one nation’s attempt to exercise jurisdiction over persons that also fall under the jurisdiction of another nation could be perceived as the undermining of the second nation’s sovereignty. It is submitted that a proper understanding of universal jurisdiction internationally, and in South Africa, is vital because the Constitutional Court recently ordered South African authorities to investigate torture committed by Zimbabwean officials against Zimbabwean citizens that was allegedly committed in Zimbabwe. In other words the court ordered South African authorities to exercise universal jurisdiction over Zimbabwean officials. This thesis has as goal to critically examine the claims made, and authorities, cited in support of universal jurisdiction, as it is believed that these are usually theoretical and unpractical in nature. It is submitted that balance and a measure of realism is imperative to this debate. Contrary to popular opinion, it is submitted, that the history of international relations has not favored universal jurisdiction and there is no indication that this situation has fundamentally changed or will change in the near future. The thesis continues to examine, after a consideration of the likening of pirates to modern international criminals, the claim that old authorities such as Grotius and De Vattel provide support for universal jurisdiction. An analysis follows of the so-called ‘Lotus principle’, which is said to mean that any State may exercise jurisdiction over serious offences because there is no rule prohibiting it. The trials of German war criminals by the Allies, in the aftermath of WWII, is also said to have evidenced universal jurisdiction and this claim is critically examined. The same applies to the trial of Adolf Eichmann by Israel. The examination of provision for universal jurisdiction in international law continues when the jurisdictional provisions of the Genocide, War Crimes and Torture Conventions are examined and specifically applied to South Africa. The drafting process of these Conventions is carefully studied to understand the intention and circumstances prevalent at the time. In the process specific countries and international case law dealing with these Conventions is also considered. The jurisdictional triggers of the International Criminal Court are surveyed and it is questioned whether it provides for universal jurisdiction and whether it can then be said to support member States in exercising universal jurisdiction on its behalf. The research findings on universal jurisdiction and the ICC are finally applied to South Africa especially with reference to the Constitutional Court decision on the torture committed in Zimbabwe before conclusions are drawn as to what South Africa’s international and domestic duties entail.
AFRIKAANSE OPSOMMING : Universele jurisdiksie is ‘n relatief nuwe konsep in Suid-Afrika en ‘n redelik kontroversiële konsep in internasionale strafreg. Dit word gereeld bespreek maar weinig toegepas. Universele jurisdiksie verwys na die bevoegdheid van ‘n Staat om sekere misdrywe te straf ongeag waar dit gepleeg is. Die betrokke Staat hoef nie enige van die traditionele verbindings soos territorialiteit, nationaliteit of direkte Staats-belang met sodanige misdrywe te hê nie. Hierdie misdade is tipies van die ergste misdade in internasionale reg, soos volksmoord, oorlogsmisdade en misdade teen die mensdom. Die argument is dat diegene wat hierdie tipe misdrywe pleeg hostis humanis generis, of vyande van die mensdom word. Daarom, net soos die seerower van ouds, is enige nasie, wat hulle in hegtenis neem geregtig om sy jurisdiksie, namens die ganse mensdom, oor hulle uit te oefen. Maar terselfde tyd is 'n kenmerk en grondbeginsel van internasionale reg die soewereine gelykheid van State. En onder internasionale reg is strafregtelike jurisdiksie 'n prerogatief van soewereine State. State het territoriale jurisdiksie oor misdade wat binne hul regsgebied gepleeg is, want om beheer oor 'n gebied uit te oefen is in wese wat soewerein wees behels. Dus kan een Staat se poging om jurisdiksie uit te oefen oor persone wat ook onder die jurisdiksie van 'n ander Staat val beskou word as die ondergrawing van die tweede Staat se soewereiniteit. Dit word aan die hand gedoen dat 'n behoorlike begrip van universele jurisdiksie, beide internasionaal, en in Suid-Afrika van uiterse belang is, veral omdat die Konstitionele Hof onlangs Suid-Afrikaanse owerhede beveel het dat marteling gepleeg in Zimbabwe, deur Zimbabwiese amptenare, teen Zimbabwiese burgers ondersoek moet word. Die hof het dus beveel dat die Suid-Afrikaanse owerhede universele jurisdiksie moet uitoefen oor Zimbabwiese amptenare. Hierdie tesis het ten doel om die gesag gewoonlik genoem, ter ondersteuning van universele jurisdiksie, krities te beskou, veral omdat dit gewoonlik teoreties en onprakties van aard blyk te wees. Hierdie tesis poog om ‘n noodsaaklike balans en mate van realisme tot die debat te voeg. Anders as wat algemeen aanvaar word ondersteun die geskiedenis van internasionale betrekkinge nie universele jurisdiksie nie en is daar ook geen aanduiding dat hierdie situasie onlangs fundamenteel verander het, of in die nabye toekoms sal verander nie. Die tesis beskou voorts, na 'n oorweging van die vergelyking van seerowers met moderne internasionale misdadigers, die bewering dat die ou skrywers soos De Groot en De Vattel hul steun verleen aan universele jurisdiksie. Hierna volg ‘n ontleding van die sogenaamde "Lotus beginsel", wat glo beteken dat enige Staat jurisdiksie mag uitoefen oor ernstige oortredings, bloot omdat daar geen reël is wat dit verbied nie. Die verhore van Duitse oorlogs misdadigers deur die Geallieerdes, na die Tweede Wêreldoorlog, word ook dikwels as bewys gebruik van universele jurisdiksie en word ook krities bekyk. Dieselfde geld vir die verhoor van Adolf Eichmann deur Israel. Die voorsiening gemaak vir universele jurisdiksie word verder ondersoek deur te let op die jurisdiksionele bepalings in die Konvensies oor volksmoord, oorlogsmisdade en marteling en dit word telkens op Suid-Afrika van toepassing gemaak. Daar word veral noukeurig gelet op die opstel proses van hierdie Konvensies ten einde te bepaal presies wat die bedoeling en heersende omstandighede toe was. In die proses word spesifieke lande en internasionale gesag wat met die Konvensies te make het oorweeg. Die Internasionale Strafhof, en of dit voorsiening vir universele jurisdiksie maak, word ondersoek ten einde te bepaal of dit enigsins gesê kan word dat die Hof lidstate aanmoedig om universele jurisdiksie te beoefen. Laastens word die bevindings oor universele jurisdiksie en die Internasionale Strafhof toegepas op Suid-Afrika, veral met verwysing na die Konstitusionele Hof beslissing oor die marteling in Zimbabwe, voordat gevolgtrekkings gemaak word oor wat presies Suid-Afrika se internasionale en plaaslike pligte behels.

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Mbete, Asanda Nodolly. "Evaluating the impact on the girl child through the criminal activities associated with the practice of ukuthwala." University of the Western Cape, 2020. http://hdl.handle.net/11394/7323.

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Magister Philosophiae - MPhil
Ukuthwala is an ancient cultural practice that has been exercised in various parts of South Africa, especially in the Eastern Cape. It occurs in different communities and is informed by traditional beliefs. The man’s family devises a plan to bring the girl to their compound without her knowledge. In some instances, this plan is formulated together with the girl’s family, but when the man’s family acts without the prior knowledge of the girl’s family, they are obligated to inform them by means of a letter, or by delegating a family member, that their daughter is not missing. Furthermore, the man’s family will request a day with the girl’s family for lobolo (dowry) negotiations for the girl. The girl’s family will oversee the process of ukuthwala to ensure that all the requirements are met and that there is mutual understanding between the families; however, this is done without the involvement of the girl child (Mjwara, 2014).

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Magobotiti, Chris Derby. "The contribution of social work to the prevention of crime by the criminal justice system in the Western Cape." Thesis, Stellenbosch : Stellenbosch University, 2001. http://hdl.handle.net/10019.1/52500.

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Thesis (M.A.)--Stellenbosch University, 2001.
ENGLISH ABSTRACT: This study deals with crime prevention within the criminal justice system in response to the current crime situation in the Western Cape. It describes the structure and function of the criminal justice system and assesses crime prevention processes with specific reference to the role of social work within the criminal justice system. It further examines the criminal justice system as practised in the Western Cape, paying specific attention to the role of the police, criminal courts and prisons in the prevention of crime. In line with the nature of the study an exploratory approach was used. The data was collected from both primary and secondary sources. Interviews and observations were the main research techniques used for gathering primary data. Secondary data + was gathered by means of a study of the literature. Structured and unstructured interviews were conducted with social workers, magistrates, police officers, prosecutors, victims, offenders, community workers and other officials of the criminal justice system. These interviews were mainly conducted at Wynberg magistrates' court, Drakenstein Prison (formerly known as Victor Verster Prison) and organisations based in the metro areas and on the Cape Flats. The study was conducted over a period of three years with the interview schedule administered between May and August 2000. A sample of 21 respondents was selected on the basis of a purposive approach and procedure. The comprehensive interview schedule consisted of mainly open-ended and a few closed questions, generating information on the profiles of respondents, crime dynamics in the Western Cape, the sentencing process and prevention strategies, matters related to the criminal justice system and corrections, and the role of community justice in the prevention of crime. The generated qualitative data was analysed and interpreted. The findings suggested the necessity for social work to make a contribution to the prevention of crime in a sensitive and proactive way. The analysis has shown that criminal justice approaches can significantly enhance the process of crime prevention, but that the criminal justice system requires combined strategies and approaches for crime prevention to be effective. It is in this context that the contribution of social work can be much more effective. The recommendations of the study have demonstrated a need for social workers to promote approaches that are premised on a broader understanding of the role of the criminal justice system in the prevention of crime. It is important to state that the study's recommendations for the prevention of .crirne can also be implemented by other role-players, particularly within the criminal justice system.
AFRIKAANSE OPSOMMING: Hierdie ondersoek handeloor misdaadvoorkoming deur die strafregstelsel in reaksie tot die huidige misdaadsituasie in-die Wes-Kaap. Dit beskryf die struktuur en funksie van die stafregstelsel en beoordeel misdaadvoorkomingsprosesse met besondere verwysing na die rol van maatskaplike werk binne die strafregstelsel. Dit ondersoek verder die strafregstelsel soos beoefen in die Wes-Kaap deur veral aandag te gee aan die rol van die polisie, die howe en gevangenisse in die voorkoming van misdaad. Die aard van die ondersoek vereis dat 'n eksplorerende benadering gevolg is. Data is versamel uit primêre sowel as sekondêre bronne. Onderhoude en waarnemings + was die hoof navorsingstegnieke wat gebruik is om primêre data te versamel. Sekondêre data is weer verkry deur 'n studie van die literatuur. Gestruktureerde en ongestruktureerde onderhoude is gevoer met maatskaplike werkers, landdroste, polisie beamptes, openbare vervolgers, slagoffers, gevonnisde misdadigers, gemeenkapswerkers en ander beamptes van die strafregstelsel. Hierdie onderhoude is hoofsaaklik gevoer by die Wynbergse landdroshof, Drakenstein Gevangenis (voorheen Victor Verster Gevangenis) en organisasies werksaam in die metropolitaanse gebiede en die Kaapse Vlakte. Die ondersoek is onderneem oor 'n periode van drie jaar met die onderhoude gevoer tussen Mei en Augustus 2000. 'n Steekproef van 21 respondente is geselekteer op die grondslag van 'n doelgerigte benadering en prosedure. Die omvangryke onderhoudskedule bestaan uit oorwegend oop en 'n beperkte aantal geslote vrae, en het inligting gegenereer oor die respondent-profiel, misdaad-dinamika in die Wes-Kaap, die vonnisopleggingsproses en voorkomingstrategieë, sake rakende die strafregstelsel en korrektiewe optrede, en die rol van gemeenskapsreg in die voorkoming van suggereer die noodsaaklikheid daarvan vir maatskaplike werk om 'n bydrae te lewer ,- tot die voorkoming van misdaad op 'n sensitiewe en proaktiewe wyse. Die ontledings het aangetoon dat strafregbenaderings die proses van misdaadvoorkoming beduidend kan verhoog maar om misdaadvoorkoming effektief te laat geskied, vereis die strafregstelsel gekombineerde strategieë en benaderings. Dit is binne hierdie verband dat die bydrae van maatskaplike werk baie meer effektief kan wees. Die aanbevelings van die ondersoek wys op 'n behoefte by maatskaplike werkers om benaderings te bevorder wat gebaseer is op 'n breër begrip van die rol van die strafregstelsel in die voorkoming van misdaad. Dit is van belang om te stel dat die ondersoek se aanbevelings vir die voorkoming van misdaad ook geïmplementeer kan word deur ander rolspelers, veral binne die strafregstelsel.

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Grant, James. "The responsible mind in South African criminal law." Thesis, 2012. http://hdl.handle.net/10539/11585.

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Kalwahali, Kakule. "The criminalization of prostitution in South African criminal law." Thesis, 2005. http://hdl.handle.net/10500/1459.

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The issue of the criminalization of prostitution raises all kinds of legal questions, especially in South African law. Governments have adopted different positions regarding prostitution. South Africa has tried, by means of law, to crack down on prostitution. This dissertation discusses the question of prostitution as provided by s 20 (1)(aA) of the Sexual Offences Act 23 of 1957. Whether criminalization is the indicated way to lessen or eliminate prostitution determines the focus of the discussion. It seemed necessary to understand the topic, to present the most important systems for addressing prostitution, the South African model and its evaluation. A legal comparison is presented. The discussion looks also at international instruments, which place the emphasis on forced prostitution. There is, in South African law, a pressing need to enact laws in accordance with the Bill of Rights, and with the international norms to which South Africa is party.
Criminal & Procedural Law
LL. D. (Criminal Law and Criminal Procedure)

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Campbell, Jean. "Rules of evidence in criminal cases in South Africa." Thesis, 2015. http://hdl.handle.net/10539/16483.

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Badenhorst, Casper Hendrik Jacobus. "Die inhoud van die misdaadbegrip in die Suid-Afrikaanse strafreg." Thesis, 2015. http://hdl.handle.net/10210/14167.

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Awa, Linus Tambu. "The interpretation and application of dolus eventualis in South African criminal law." Thesis, 2019. http://hdl.handle.net/10500/26460.

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An accused cannot be held criminally liable by a court until he is considered to be culpable, a process which entails establishing criminal capacity and intention (dolus) or negligence (culpa). Determining a perpetrator’s necessary intent in the form of dolus eventualis has proved to be a predicament in South African jurisprudence. This type of intent occurs when a person does not aim to cause the unlawful act, however, he subjectively foresees the likelihood that in pursuing with his conduct, the unlawful result will possibly happen, and he reconciles himself to this possibility. The problem with this form of intention, especially where the death of another is caused recklessly, is, amongst others, reservations as to whether the perpetrator’s foresight was of a real, reasonable or a remote possibility. This research examines the imperatives and rationale for preceding and current interpretations and applications of dolus eventualis and associate concepts in South African as well as in selected foreign legal frameworks in order to provide a comprehensive perspective on the subject. In this regard, the study challenges conflicting judgments on the application of dolus eventualis in domestic courts, especially as regards homicide- and putative private defence cases, amongst others. It is evidenced that in case law concerning dolus eventualis, legal rules were not properly articulated when determining this type of criminal intent. In this investigation, the legislative framework applicable to dolus eventualis under international law is also critically evaluated with the aim of facilitating the comprehension of this element in South African law. As the concept of dolus eventualis is an indispensable concept in South African criminal law, recommendations are proposed on the application and interpretation of dolus eventualis suitable to the South African landscape, which includes possible law reform.
Criminal and Procedural Law
LL. D. (Criminal and Procedural Law)

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Botha, Christoffel Rudolph. "Bedrog in die Suid-Afrikaanse strafreg." Thesis, 2015. http://hdl.handle.net/10210/14168.

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Dissertations / Theses on the topic 'Criminal law – South Africa'

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