Academic literature on the topic 'Criminal liability – South Africa'

Thesis (LLM)--Stellenbosch University, 2003.<br>ENGLISH ABSTRACT: The aim of this study is to determine standards or criteria to be used when deciding on the optimal use of the criminal sanction and to evaluate the efficacy of such criteria by applying them to an existing crime, namely incest. Since criminal punishment necessarily impacts negatively on the human rights of those subject to it, it is submitted that it should only be used as a last resort where it is absolutely necessary to do so. Relevant constitutional provisions and other legal sources are examined and used as the basis for expounding a test for determining the circumstances under which it is appropriate to criminalise. It is argued that the decision to utilise the criminal sanction may be tested against certain guidelines: the state bears the burden of showing, firstly, that the rationale of the crime in question is theoretically justifiable in that criminalisation serves a worthy state purpose; and secondly, that criminalisation is reasonable, being both practically desirable and effective in achieving legitimate state goals in the least restrictive manner possible. In the second part of the thesis, the proposed criteria are applied to the common law crime of incest. An initial discussion of the crime indicates that a wide range of conduct is punishable as incest, including both extremely harmful conduct, such as the rape of a child by her father, and completely innocuous behaviour, for instance private sexual intercourse between consenting adults who are merely related by marriage. Next, an attempt is made to ascertain the true rationale for criminalising incest and then to establish whether such rationale is justifiable. The conclusion is reached that despite there being good grounds for punishing certain manifestations of incest, the only reason for imposing criminal punishment that is valid in all instances, is the unconvincing contention that the state is justified in prohibiting incest merely because incest is regarded as morally abhorrent. And even assuming that targeting and preventing undesirable forms of harmful or offensive conduct is a justifiable purpose of the incest prohibition, it is nevertheless submitted that criminalising incest is unreasonable, since the crime as it is presently formulated is both over- and under-inclusive for the effective realisation of any praiseworthy aims. After testing incest against the criteria developed, the recommendation is made that incest be decriminalised. It is contended that there are sufficient alternative criminal prohibitions available that would adequately punish harmful incestuous conduct without simultaneously unreasonably limiting the rights of consenting adults to choose their sexual (or marriage) partner without state interference. Decriminalisation would not only prevent potential violations of human rights, but the legitimacy of the criminal justice system as a whole would be considerably enhanced if it were apparent that the criminal sanction was reserved for conduct truly deserving of punishment.<br>AFRIKAANSE OPSOMMING: Die oogmerk van hierdie studie is om standaarde of riglyne daar te stel ter aanwending waar besluit word oor die optimale benutting van die strafsanksie, asook om die doeltreffendheid van sulke riglyne vas te stel deur die toepassing daarvan op 'n bestaande misdaad, naamlik bloedskande. Aangesien straf altyd 'n nadelige uitwerking op die menseregte van dié wat daaraan onderhewig is, het, word aan die hand gedoen dat dit slegs as 'n laaste uitweg aangewend moet word indien absoluut noodsaaklik. Ondersoek word ingestel na toepaslike grondwetlike bepalings en ander regsbronne, wat gebruik word as grondslag vir 'n toets ten einde te bepaalonder welke omstandighede kriminalisasie gepas is. Daar word aan die hand gedoen dat die besluit om gebruik te maak van 'n strafsanksie teen sekere riglyne getoets kan word. Die staat dra die bewyslas om aan te toon, eerstens, dat die bestaansrede vir die betrokke misdaad teoreties regverdigbaar is aangesien krimininalisasie 'n waardige staatsdoel dien; en tweedens, dat kriminalisasie redelik is, aangesien dit prakties wenslik is, asook die staat se legitieme doelwitte dien op effektiewe wyse op die mees onbeperkende wyse moontlik. In die tweede gedeelte van die verhandeling word die voorgestelde riglyne op die gemeenregtelike misdaad bloedskande toegepas. 'n Aanvanklike bespreking van die misdaad dui daarop dat die trefwydte van bloedskande sodanig is dat dit gedrag insluit wat uiters benadelend is, soos byvoorbeeld die verkragting van 'n kind deur haar vader, maar ook heeltemal onskadelike optrede soos byvoorbeeld geslagsverkeer tussen toestemmende volwassenes wat bloot aanverwante is. Die volgende stap is om die ware bestaansrede vir die verbod op bloedskande vas te stel en daarna te oorweeg of sodanige bestaansrede regverdigbaar is. Die gevolgtrekking is dat alhoewel daar goeie gronde vir die bestrawwing van sekere verskyningsvorme van bloedskande is, die enigste altyd-geldende rede vir strafoplegging in hierdie verband die onoortuigende bewering dat bloedskande moreelonverdraaglik beskou word, is. Selfs al word daar aanvaar dat die identifikasie en voorkoming van onwenslike verskyningsvorme van skadelike of aanstootlike gedrag 'n regverdigbare doel vir die bloedskandeverbod is, voer die skrywer nie te min aan dat die kriminalisasie van bloedskande onredelik is omrede die huidige misdaadomskrywing tegelykertyd beide oor- en onder- inklusief is om einge moontlike goeie doelwitte effektief te bereik. Nadat bloedskande getoets word teen die riglyne wat ontwikkel is, word aanbeveel dat bloedskande gedekriminaliseer word. Daar word aan die hand gedoen dat daar genoegsame alternatiewe strafbepalings is wat aangewend kan word om skadelike gedrag wat onder die misdaad bloedskande resorteer te bestraf sonder dat die regte van toestemmende volwassenes om sonder staatsinmenging hul seksuele- (of huweliks-) maat te kies onredelik ingeperk word. Dekriminalisasie sal nie slegs moontlike menseregteskendings voorkom nie, maar ook die legitimiteit van die strafregstelsel as geheel bevorder deurdat dit duidelik blyk dat die strafsankie reserveer word vir optrede wat werklik straf verdien.

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.<br>Dissertation (LLM)--University of Pretoria, 2017.<br>Public Law<br>LLM<br>Unrestricted

"There is no such thing as error-free code." This is neither the favoured mantra of a software development guru, nor the refrain of the chairman of a multinational software company, but the consensus of those at the coalface of software development the world over. [...] This paradigm raises interesting questions for the lawyer. There is no other discipline that operates on this basis. [...] It is only the software developer who, because of the complexity of software code, as well as the unpredictable environment in which his software will be executed, admits that the chance of his creation not performing as intended under all circumstances is so high that he must assume there are faults in it. [...] The distinction in computer operations between hardware and software is well understood, and while I will be examining the liability for defective software, the reader would do well to bear in mind that software is often inextricably bound to the hardware that it serves.

This thesis is an analysis of the law of vicarious liability and its application within the legal framework of delict in South Africa. A brief overview of the historical development of this branch of law is given, with reference to the influences of Roman, Roman-Dutch and English law. That is followed by an exposition of the 'modem' interpretation of vicarious liability as applied in South African courts, highlighting apparent inconsistencies and the need for reform in what has become a persistently controversial area of law. Specific attention is paid to the so-called 'course and scope enquiry' and to the enduring difficulties associated with attributing liability to employers for the deliberate wrongful conduct of their employees. It is argued that the courts have yet to reach consensus on a general principle capable of being applied to the facts of so-called 'deviation cases', and that consequently the legal divergence on these matters gives rise to uncertainty and concern. It is submitted that the way in which the traditional test for vicarious liability is currently applied fails to give true effect to the policy considerations upon which this branch of law is founded. By way of comparison with the South African position, a detailed account of the law of vicarious liability in comparable foreign jurisdictions is given, with emphasis placed on recent developments in England and the British Commonwealth. The study then moves to an analysis of the various policy considerations behind vicarious liability, with particular attention being paid to the role of risk-related liability and the role of risk-assumption in the 'course and scope' enquiry. A comparative analysis follows, highlighting differences between the approaches of the foreign jurisdictions and that taken by the South African courts. The work concludes with a proposal that the South African courts should broaden the scope of vicarious liability and opt for a model similar to that which has recently been adopted in Canada.

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.

The workplace has evolved dramatically in the past decades. Technology has improved, innovative ways of utilising nuclear power have been developed, new chemicals have been introduced to the market and the adverse effects of other chemicals on both human health and safety and the environment have been discovered. This has influenced the nature of the workplace itself. While employees enjoy a common law right to a safe working environment and health and safety, state intervention currently provides restricted claims to an employee who has sustained injuries or contracted occupational diseases. This thesis explores the effect of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 which deprives an employee of its common law right to institute civil action against an employer for an injury sustained or disease contracted during the course and scope of employment. Furthermore, this thesis also explores the marriage between the Occupational Health and Safety Act 89 of 1993 and the Compensation for Occupational Injuries and Diseases Act 130 of 1993 as well as the position of ‘employee’ and ‘employer’ insofar as the scope and application of these two acts are concerned with specific reference to the position of labour broker employees. The use of indemnity clauses and its validity in South Africa will also be explored and discussed. This thesis also dedicates a chapter to the leading case authority of Jooste v Score Supermarket Trading (Pty) Ltd and its effect insofar as the enforcement and application of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is concerned. It is impossible to mention all the changes in the workplace that have occurred in the recent years, and this discussion therefore focuses on the current position of employees who have been deprived of their common law right to institute delictual action for damages resulting from an injury sustained while on duty as well as the impact of the current restrictive claims available to them. Alterations to existing approaches are also proposed to resurrect the common law right of employees to institute action against their employers.<br>Abstract

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.

The goal of this dissertation is to highlight the ambiguities contained in section 61 of the Consumer Protection Act 68 of 2008 (CPA), which attempts to introduce strict product liability for the entire supply chain in the event of product failure, and to propose amendments from which both the consumer as well as the supply chain could benefit. The new dispensation of strict product liability will lead to a step away from the no-fault based liability system that our courts have implemented for decades. Although this system is unfamiliar to South Africa, strict liability regimes have been followed in foreign countries for a considerable period of time. A comparative study of the approaches followed in America and Europe, which both advanced strict product liability regimes, will be undertaken in this study in order to illuminate problematic aspects relating to the concept of defect contained in section 61 of the CPA as well as the various duties of the supply chain in a strict product liability regime. It is argued that the provisions of the CPA ought to be supplemented with regulations, including, but not limited to, the implementation of adequate safety regulations to mitigate product recalls and product liability claims.<br>Dissertation (LLM)--University of Pretoria, 2012.<br>Mercantile Law<br>unrestricted

The focal point of this treatise is the evaluation of the paradigm shift that has taken place in our South African criminal justice system post 1994. This shift is seen as a move away from a retribution approach to a more victim-centred approach. One needs to remember that the previous regime had unfair and unjust laws: to do away with such laws an interim constitution1 was enacted in Parliament in 1993 and became operational on 27 April 1994. It was the fundamental law of South Africa. This was later repealed by the final Constitution 2 on 4 April 1997. In its preamble it states categorically that it seeks to establish a “society based on democratic values, social justice and fundamental human rights” and “(to) lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law”. One of the priorities of democratic government in 1996 was the National Crime Prevention Strategy3 (hereafter referred to as the NCPS). It was designed to reduce the high level of crime in our country and has four pillars: the criminal justice process; reducing crime through environmental design; public values and education and trans-national crime. Pillar one is seen as a move away from retribution as punishment towards a system of restorative justice 4. Furthermore the South African government is a signatory to various international laws, treaties and declarations that uphold victims’ rights. One example would be the United Nations Declaration on the Basic Principle of Justice for Victims of Crime and abuse of Power 1985 - in fact the Victims’ Charter is compliant with this declaration. Yet one cannot negate the fact that in the last two decades the status of victims has altered significantly: there has been some development in the transformation of the criminal justice system. Since 1994 the focus gradually shifted from an adversarial and retributive criminal justice to that of restorative justice. This shift is vindicated by following examples: the adoption of the NCPS; the Truth and Reconciliation Commission 5 (hereafter referred to as the TRC); the adoption of the Service Charter for Victims of Crime 6(hereafter referred to as the Victims’ Charter); the enactment of the Child Justice Act7; and case laws which applied restorative justice principles such as S v Maluleke and S v Saayman. Therefore this treatise will evaluate the application of a restorative system by looking at the definition of restorative justice; government commitments to the system; the enactment of Acts and policies that support the system. This will be done in relation to the victims.