Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (2)

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (2)

Author: Chuks Okpaluba

ISSN: 1996-2118
Affiliations: LLB, LLM (London), PhD (West Indies), Research Fellow, Centre for Human Rights, University of the Free State
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 617 – 645
https://doi.org/10.47348/SACJ/v33/i3a6

Abstract

The discussion of the South African case law on the quantification of damages arising from wrongful arrest and detention which commenced in part (1) of this series, continues in the present part. In part (1), the Constitutional Court judgment in Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC) which emphasised the respect and reverence for the constitutional guarantee of personal liberty, and De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) as well as the recent Constitutional Court judgment in the same case – De Klerk v Minister of Police 2020 (1) SACR 1 (CC); [2019] ZACC 32 (22 August 2019) – were among a host of important cases discussed. The Supreme Court of Appeal cases on quantification of damages for wrongful arrest and detention also discussed include: Mashilo v Prinsloo 2013 (2) SACR 648 (SCA); Minister of Police v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018); Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017). The first section of this part continues with the discussion of the other instances not involving failure to take the detainee to court within 48 hours or consequences of the accused person’s first appearance in court whereby Hendricks v Minister of Safety and Security (CA&R/2015) [2015] ZAECGHC 61 (4 June 2015); Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG); and Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) are among the cases discussed. The second limb of the discussion in this part concerns the issue of wrongful arrest and detention under the Domestic Violence Act 116 of 1998 where the law has developed side by side with the traditional law of wrongful arrest and police negligence as illustrated by the case of Naidoo v Minister of Police 2016 (1) SACR 468 (SCA).

Non-criminal dispute resolution in South Africa’s criminal justice system: Proposals for reform

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Non-criminal dispute resolution in South Africa’s criminal justice system: Proposals for reform

Authors: Navilla Somaru and Christa Rautenbach

ISSN: 1996-2118
Affiliations: BA Law, LLB (KZN), LLM (NWU; B Iuris (cum laude), LLB (cum laude), LLM, LLD (former PU for CHE). Professor, Faculty of Law, North-West University (Potchefstroom).
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 646 – 669
https://doi.org/10.47348/SACJ/v33/i3a7

Abstract

The National Prosecuting Authority has issued a comprehensive document containing policy directives that are available only to prosecutors. This document makes provision for non-criminal dispute resolution mechanisms in the form of diversions and informal mediations where the offender is an adult. It seems as if a large number of less severe cases are disposed of in this way every year. The directives are not in the public domain, and their scope and application are shrouded in a cloud of secrecy. This contribution analyses the alternative dispute mechanisms of diversion and informal mediation available to prosecutors, which are referred to as non-criminal dispute resolution mechanisms, with the aim to propose ways to effect reform in this area.

Addressing violations of international humanitarian law through the international criminal justice system: A criminologist’s contribution

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Addressing violations of international humanitarian law through the international criminal justice system: A criminologist’s contribution

Author: Simeon P Sungi

ISSN: 1996-2118
Affiliations: PhD, MA, LLM, LLB (Hons). Associate Professor Criminal Justice and Chair of the Department of Sociology and Criminal Justice – United States International University-Africa, Nairobi, Kenya. The author is also an Advocate of the High Court of Kenya and the High Court of Tanzania.
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 670 – 684
https://doi.org/10.47348/SACJ/v33/i3a8

Abstract

The international criminal justice system has resorted to criminal sanctions as the sole response to international criminal offending, including international humanitarian law (IHL) violations. While responding to international criminal offending, the international criminal justice system has overly relied on utilitarianist and retributivist assumptions to criminal punishment that assumes the application of criminal law in enforcing compliance to societal norms in order to deter potential norm violators and to induce compliance. Furthermore, correcting criminal behaviour creates a sense of accountability and appeases victims of international humanitarian law violations and other international crimes. Arguments in support of this strategy also posit that it is important to take these steps because it brings a sense of respect to the rule of law or what is popularly known as fighting ‘impunity’. A reflection on the Nuremberg and the Tokyo trials following World War II seems to have influenced the criminalising of war crimes and other international crimes. On the other hand, criminologists over a century now have been studying causes of crime to influence public policy in crime prevention. It is, therefore, imperative to examine the aetiology of international humanitarian law violations through a criminological lens to inform international criminal justice policy on best approaches in responding to international crimes in general and war crimes in particular. The essay examines international humanitarian violations in the Democratic Republic of Congo to find out whether the international criminal justice system’s response to war crimes meet the purported stated goals of the international criminal justice system. The Lubanga case in the DRC situation is informative since it is the first conviction before the International Criminal Court.

Covid-19-related criminalisation in South Africa

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Covid-19-related criminalisation in South Africa

Author: Emma Charlene Lubaale

ISSN: 1996-2118
Affiliations: LLB (Makerere) LLM (Pretoria) LLD (Pretoria), Associate Professor, Faculty of Law, Rhodes University
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 685 – 707
https://doi.org/10.47348/SACJ/v33/i3a9

Abstract

Covid-19, a virus first identified in China, has since December 2019 wreaked its fair share of havoc across the globe. It has claimed hundreds of thousands of lives, with no continent spared. In March 2020, the World Health Organisation declared the virus a global pandemic and proceeded to call on states to take urgent measures to contain its spread. Governments across continents heeded the call by rolling out measures ranging from lockdowns to regulations giving effect to the measures adopted. On 15 March 2020, South Africa declared a state of national disaster and days later, a national lockdown in response to the Covid-19 pandemic. This lockdown was followed by regulations, all geared towards containing the further spread of this virus. Criminal law came into play in dealing with the violators of the Covid-19 Regulations and while these measures were well-intentioned, multiple issues have hardly been examined from a criminal law perspective. The purpose of this article is to demonstrate the limitation of criminalisation as a response to health issues. The article does this by engaging with previous failed attempts to rely on criminalisation to address public health issues; underscoring the effect that some of the regulations have on the criminal law principle of legality and bringing to the fore the unintended consequence of criminalising poverty in a society that is already unequal. In engaging with these three themes, the analysis provides a context through which Covid-19-related criminalisation should be viewed and affords reasons why the criminalisation approach is counterproductive and should not be considered in dealing with future pandemics. The conclusions drawn are instructive to other countries in light of the fact that criminalisation in the wake of the Covid-19 pandemic was not unique to South Africa.

The profile of recidivists in Kenya: The case of prisoners at Nairobi county prison institutions

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

The profile of recidivists in Kenya: The case of prisoners at Nairobi county prison institutions

Authors: John Onyango Omboto, Gidraph G Wairire and Mike Chepkong’a

ISSN: 1996-2118
Affiliations: PhD (Nairobi), Lecturer Criminology and Security Studies, Egerton University, Kenya; BSW (Osmania) MA (Tata Institute of Social Sciences) PhD (Pune), Associate Professor, Department of Sociology and Social Work, University of Nairobi; BA MA PhD (Nairobi), Lecturer, Department of Sociology and Social Work, University of Nairobi
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 708 – 730
https://doi.org/10.47348/SACJ/v33/i3a10

Abstract

Recidivists are chronic, multiple or prolific offenders. They continue to commit crimes regardless of punishment. Recidivism is a worldwide problem which has persisted over the years. A University of Nairobi study conducted in Nairobi County, Kenya on the linkage between punishment and recidivism which involved recidivist prisoners at Kamiti Maximum Security Prison and Langata Prison; male and female institutions respectively, sought to, among others, analyse the broad characteristics of recidivists in the two institutions. The study purposively selected a sample of 167 participants, and collected data by use of questionnaires, focus group discussions and key informant interviews. Both quantitative and qualitative techniques were utilised in data analysis. The study established that the majority of the recidivists are males, and young adults or individuals in middle age who are either illiterate or semiliterate. They are also not in marital relationships, and are members of the lower social classes among other characteristics. This paper presents a literature review on challenges facing prison institutions in Kenya, causes and control strategies of recidivism among prisoners, general socio-demographic and personality characteristics of recidivists, and the study findings on the profile of the recidivists in Kenya.

Prosecuting and punishing copyright infringements in South Africa: A comment on the Copyright Amendment Bill, B13B-2017

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Prosecuting and punishing copyright infringements in South Africa: A comment on the Copyright Amendment Bill, B13B-2017

Author: Jamil Ddamulira Mujuzi

ISSN: 1996-2118
Affiliations: LLB (Makerere) LLM (Pretoria) LLM (Free State) LLD (Western Cape), Professor of Law, Faculty of Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 731 – 751
https://doi.org/10.47348/SACJ/v33/i3a11

Abstract

Section 27(6) of the Copyright Act provides for penalties to be imposed on those convicted of infringing copyright. In terms of s 27(6), a person who infringes copyright is liable to be sentenced to a fine or to imprisonment or to both a fine and imprisonment. The Copyright Amendment Bill (which was passed by parliament in early 2019), introduces, amongst other things, minimum sentences for juristic persons convicted of infringing copyright. The purposes of this article are: to highlight high court decisions dealing with the prosecution of people who have infringed copyright; recommend ways in which copyright owners may invoke their right to institute a private prosecution as one of the means to protect their rights; highlight the limitations of the right to institute a private prosecution; and to highlight the challenges that are likely to be faced in the implementation of the minimum sentences introduced by the Copyright Amendment Bill.