The overlap between the common law and Chapter 4 of the Prevention of Organised Crime Act: Is South Africa’s anti-gang legislation enough?

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

The overlap between the common law and Chapter 4 of the Prevention of Organised Crime Act: Is South Africa’s anti-gang legislation enough?

Author Delano Cole van der Linde

ISSN: 1996-2118
Affiliations: LLB (Stell), LLM (Stell), LLD (Stell), Lecturer, Faculty of Law, North-West University. This article is written based on research conducted for my LLD dissertation at Stellenbosch University
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 273 – 301

Abstract

The Prevention of Organised Crime Act 121 of 1998 (POCA) was promulgated in order to, inter alia, supplement the common law insofar it was ineffective in dealing with criminal gang activity, particularly in the Cape Flats in the Western Cape. However, the new measures appear to be substantially similar to the common law, therefore, nullifying the raison d’être. This article examines the extent to which the existing common law modalities overlap with the measures promulgated under POCA and attempts to identify those scenarios in which it would be more advantageous to utilise either the former, the latter or potentially both. It is submitted that if the extent of the overlap is so great that the common law modalities and the measures under POCA are indistinguishable, then supplementary or replacement legislation should be considered.

The social justice implications of criminalisation of HIV transmission

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

The social justice implications of criminalisation of HIV transmission

Author Matthew Robinson

ISSN: 1996-2118
Affiliations: PhD (Florida State), Professor, Department of Government and Justice Studies, Appalachian State University, and Visiting Professor, University of Zululand
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 302 – 319

Abstract

In this paper, the author attempts to provide some answers about the ‘right thing’ to do in cases where a person has wilfully or negligently exposed another person to HIV or does not tell a partner about their HIV status prior to engaging in sexual relations. To do this, the author introduces and summarises four main theories of justice and demonstrates that each is found within the Constitution of the Republic of South Africa, making them highly relevant for the practice of law in the country. The analysis reveals that in cases where there is legal culpability in the transmission of HIV, all four theories of justice and key principles of the Constitution are violated, suggesting criminalisation would be appropriate in those cases. However, the paper also illustrates that criminalising HIV transmission would likely lead to outcomes that would also violate those same conceptions of justice as well as other values important to South Africans, such as compassion and effective public health. The paper shows that arguments rooted in justice theory and the Constitution of the Republic of South Africa could be made both for and against the criminalisation of HIV transmission.

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (1)

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (1)

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 2, p. 320 – 347

Abstract

The investigation of the quantum of damages which the courts have awarded as compensation for the injuries arising from unlawful arrest and detention by police officers and other law enforcement agents of the State is the major concern of this series of articles. When viewed from the perspective of the courts, the issue of quantification of damages is definitely a burdensome exercise; and to the victim, it is shrouded with uncertainty. It is not easily ascertainable whether this is the reason why, in spite of there being an avalanche of case law, yet there appear to be far less academic deliberations or debate in this volatile aspect of the law of government liability. Certainly, the assessment of damages is one area of adjudication where the trial judge has discretion to make a value judgment and an obligation to make an award that is fair, just and appropriate having regard to the circumstances of the case. It is clear, however, that courts do not pretend to be in a position to repair, except to the extent that money can do so, the types of physical, emotional and psychological damages caused in the process of arrest and detention. Otherwise, how could a trial judge possibly remedy the tricky issues of personal liberty deprivations; the physical injuries; the humiliation, tarnished reputation, and the trauma that afflict the plaintiff as a result of the wrongful arrest and detention; or, the economic damage – loss of income from employment or business; medical expenses incurred or to be incurred in the future? These problems are accordingly scrutinised in this series, including the factors the courts take into account in making the awards; the actual amounts awarded; and the reasons for making the awards. In carrying out this onerous task, the trial courts are guided by the principles outlined by the appellate courts. The enormous amount of materials available in these three Southern African jurisdictions investigated herein, inform the adoption of a three-part serialisation.