Low-threshold Fitness Test in South Africa and the USA: Consequences for the Fit but Mentally ill Accused

by | Jun 2, 2021 | CILSA, CILSA V52 I1 2019

Low-threshold Fitness Test in South Africa and the USA: Consequences for the Fit but Mentally ill Accused

Author Letitia Pienaar

ISSN: 2522-3062
Affiliations: LLB (UJ), LLM (UNISA), LLD (UNISA). Senior Lecturer: Medical Law and Legal Research Methodology, Department of Criminal and Procedural Law, University of South Africa. Admitted attorney of the High Court of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 126 – 142

Abstract

An accused, who is unable to follow the criminal proceedings against him/ her on account of mental illness or intellectual disability, could be found unfit to stand trial. Whether the individual is indeed unfit is determined by the fitness test employed in the particular jurisdiction. This article considers the fitness tests employed in South Africa and the United States of America and points out the similarities and differences between them. The threshold for fitness in both these jurisdictions is low, resulting in the majority of accused persons sent for fitness assessments being found fit to stand trial. Amongst these accused are persons with serious mental illness. The article considers the impact of such a low threshold test on the fit but mentally ill accused and considers a therapeutic response to this category of accused persons.

Book Review: Regional Developmentalism through Law: Establishing an African Economic Community, Jonathan Bashi Rudahindwa, Routledge, 2018

by | Jun 2, 2021 | CILSA, CILSA V52 I1 2019

Book Review: Regional Developmentalism through Law: Establishing an African Economic Community, Jonathan Bashi Rudahindwa, Routledge, 2018

Author Babatunde Fagbayibo

ISSN: 2522-3062
Affiliations: LLB (Unisa) LLM, LLD (Pretoria), Associate Professor of Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 143 – 145

Abstract

None.

Addressing the challenge of withdrawal of lump sum retirement benefit payments in South Africa: Lessons from Australia

by | Oct 1, 2019 | CILSA, CILSA V50 I1 2017

Addressing the challenge of withdrawal of lump sum retirement benefit payments in South Africa: Lessons from Australia

Authors Motseotsile Clement Marumoagae

ISSN: 2522-3062
Affiliations: Senior Lecturer, University of the Witwatersrand
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 1, p. 129 – 146

Abstract

This paper discusses the South African government’s approach in addressing its concern regarding members of retirement funds who are unable to care for themselves when they reach retirement. The paper highlights the challenge of such members’ increased risk of not being able to keep the same standards of living as during their working life and outliving the retirement benefits which they received when they retired. This paper evaluates the impact of receiving lump sum payments either before reaching the retirement age or upon retirement on the ability of members to care for themselves during retirement. It further examines whether the government’s intervention through the intended compulsory preservation of retirement benefits would lessen the risks of members outliving their retirement benefits. The paper argues that while the thought of introducing compulsory preservation seems sound, compulsion would not necessarily cater adequately for the varied needs of all retirement fund members. Further this paper argues, that South Africa should draw lessons from Australia and allow those members who are able to justify the need to be paid their entire benefit when they exit their funds, to receive their benefits in full.

The value of participation and legitimacy in the constitution-making processes of post-independence Cameroon and post-apartheid South Africa

by | Oct 1, 2019 | CILSA, CILSA V50 I1 2017

The value of participation and legitimacy in the constitution-making processes of post-independence Cameroon and post-apartheid South Africa

Authors Justin Ngambu Wanki

ISSN: 2522-3062
Affiliations: None
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 1, p. 109 – 128

Abstract

In this article I contend that the Constitution-making process in post-apartheid South Africa provides a suitable paradigm that could enable post-independence Cameroon to break away from the past neo-colonialist and authoritarian ideologies in its future Constitution-making processes. Cameroon’s Constitution-making deficit can be traced back to the independence Constitution-making process which implicitly facilitated neo-colonialism. Conversely, the Constitution-making process in post-apartheid South Africa espoused a break from apartheid, oppression, and authoritarianism. The nature and structures of the resultant Constitutions of the two countries attest to this view. Using the Constitution-making process in post-apartheid South Africa as an appropriate paradigm, I argue for a new trajectory as a response to post-independence Cameroonian Constitutions’ subjection to neo-colonialism and authoritarianism. Inspiration from the South African paradigm of introducing the judiciary into the Constitution-making process is a novelty worthy of emulation by post-independence Cameroon. This paradigm promises greater legitimacy in the Constitution-making process and renders the final Constitution more ‘self-binding’ (binding on Cameroonians). The suitability of the South African paradigm is informed by the imperative to realign post-independence Cameroonian Constitutions with conventional and democratic principles of Constitution-making as exemplified by the post-apartheid South African model. In this way the Constitution-making process in post-independence Cameroon would systematically eradicate the ‘chicanery-approach’ of neo-colonialists and their neo-colonial acolytes, so that the resulting constitution is a manifestation of the will of the people.

The anatomy of African jurisprudence: A basis for understanding the African socio-legal and political cosmology

by | Oct 1, 2019 | CILSA, CILSA V50 I1 2017

The anatomy of African jurisprudence: A basis for understanding the African socio-legal and political cosmology

Authors Dial Dayana Ndima

ISSN: 2522-3062
Affiliations: None
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 1, p. 84 – 108

Abstract

An examination of the anatomy of African jurisprudence reveals a thought system whose institutions relied on the convenience of maleness and manhood in the appointment of functionaries. In the context of an agrarian traditional society, this so-called principle of primogeniture provided much needed benefits associated with accountability, responsibility and maturity in the handling of the affairs of vulnerable members. Unfortunately, this principle was compromised by the essence of maleness, which blighted its efficacy. Virtually all leadership positions, including family headship and traditional leadership, were occupied by senior men. Womanhood was a sufficient disqualifying factor regardless of individual qualities and merit. This reality gave indigenous African law the undeniable label of a patriarchal system. As society changed, the shift towards the application of a non-sexist primogeniture principle developed among many families and communities, living mainly in the countryside. This development gained impetus from the advent of the new constitutional dispensation which provided the courts with the opportunity to nullify the discredited male primogeniture, thus paving the way for the adherents of African culture to appoint women as well, where appropriate. Hence sons and daughters now have equal chances to succeed their predecessors to family and traditional leadership positions in the post-apartheid customary law of succession.

A comparative discussion of the regulation of Mental Health Review Boards in South Africa and the Mental Health Review Tribunal in the United Kingdom

by | Oct 1, 2019 | CILSA, CILSA V50 I1 2017

A comparative discussion of the regulation of Mental Health Review Boards in South Africa and the Mental Health Review Tribunal in the United Kingdom

Authors Moffat Maitele Ndou

ISSN: 2522-3062
Affiliations: Lecturer, University of the Free State
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 1, p. 56 – 83

Abstract

There is general dissatisfaction regarding the operation of review boards in South Africa. These boards are guided solely by the principle of legality in that they may act only if legally permitted to do so, the principle of natural justice in that they must allow all sides an opportunity to present their cases, and the general principles governing administrative action. There are no general procedural rules applicable to all review boards. Lessons could be learnt from the United Kingdom’s Review Tribunal and the First-Tier Tribunal as they relate to mental health care. The United Kingdom Review Tribunals have rules of procedure and mechanisms aimed at case management. The Mental Health Care Act (MHCA) provides a right to legal representation for the mentally ill at the proceedings. This right does not extend to representation in any instances other than during the proceedings before a review board or any other court. The introduction of the Independent Mental Health Advocates (IMHAs) would strengthen the protection of rights of mental health care users in terms of the MHCA and the Constitution, in that mental health care users would be better informed of their rights and be able to access review boards.